SUDHANNYA K N Vs. UMASANKER VALSAN

JUDGEMENT

(1.) Under challenge in this Writ Petition filed under Art. 227 of the Constitution by the petitioner who is the wife of the respondent is Ext. P4 common order passed by the Family Court in LA. No. 961/07 in O.P. 751/07, LA. No. 178/08 in I.A. 961/07 in O.P. 751/07. Apart from the prayer to set aside Ext. P4, the following prayers are also sought in this Writ Petition:-

(2.) According to the petitioner Ext. P4 is an illegal order and has to be corrected by this Court under Art. 227. The respondent has filed a counter affidavit wherein it is contended that the Family Court, Kannur is completely justified in passing Ext. P4 common order stating that the petition filed under Ss. 18 and 19 of the D.V. Act could be considered only at the final stage. According to the respondent a careful reading of S. 26 of the D.V. Act would make it clear that Ss. 18 and 19 can be claimed before the Family Court in the proceedings pending in the final stage only. It is pointed out that as per S. 29 of the D.V. Act any order passed under the provisions of the D.V. Act are appealable. However, if a petition under the D.V. Act is filed before the Family Court no appeal provided transfer under S. 29 can be filed before the Sessions Court. Hence, the very purpose of the statute will be defeated and it is pointed out that the case pending before the C.J.M's court was withdrawn by the petitioner by suppressing the fact that at the time of dismissing the M.C. pending before the C.J.M., there was no proceeding before the Family Court, Kannur. The act of the petitioner is clear abuse of process of law. It is then contended that the petitioner has no right over the respondent's property and the petitioner is paying maintenance amount to the respondent without default. The claim of the petitioner in Ext. P1 is barred by limitation and Ext. P1 has been filed only with the intention of harassing the respondent.

(3.) We have heard the submissions of Sri. Kaleeswaram Raj, the learned counsel for the petitioner and those of Sri. S. Rajeev, the learned counsel for the respondent. Our attention was drawn by Sri. Kaleeswaram Raj to the judgment of this Court in Sathyabhama v. Ramachandran,1997 2 KerLT 3 and submitted that while disposing of an application under S. 125 Cr. P.C. the Family Court will function as a criminal court. Sri. Raj referred to certain passages in Anish Antony v. Neetha, 2011 3 KerLT 409, a decision which takes the view that proceedings pending before the magisterial court under the provisions of D.V. Act cannot be transferred to Family Court where proceedings for divorce are pending. Sri. Raj also referred to the relevant statutory provisions under Ss. 12, 18, 19, 20, 22 and 23(2) of the D.V. Act and more importantly Ss. 26(1) and 26(2) of the same statute. Our attention was drawn by Sri. Raj also to the decision of the Bombay High Court in Mrs. Pramodini Vijay Fernandes v. Mr. Vijay Fernandes, of the Madras High Court in Palani v. Meenakshi,2008 3 KerLT 35 and Natchathiram v. Vanitha & Ors.,2011 CDJMHC 5139.