Kerala High Court
Paul Joseph vs Thressiakutty @ Theresa on 19 February, 2025
2025:KER:13866
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946
OP(CRL.) NO. 617 OF 2018
AGAINST THE ORDER DATED 07.07.2016 IN MC NO.39 OF 2011 OF
CHIEF JUDICIAL MAGISTRATE ,THODUPUZHA
PETITIONER:
PAUL JOSEPH,
AGED 53 YEARS
S/O.JOSEPH, VEMBALLIKUNNEL HOUSE, VELLARVALLI AMSOM,
THONDIYIL.P.O, THONDIYIL DESOM, KANNUR DISTRICT
REPRESENTED BY HIS POA HOLDER, SRI.KRISHNA GIRISH,
S/O.KUNHIKRISHNAN, UMESH BHAVAN, KUTHUPARAMBA.P.O.,
MANATHERI, KANNUR, KERALA.
BY ADVS.
M.P.ASHOK KUMAR
SRI.P.C.GOPINATH
SMT.BINDU SREEDHAR
SMT.R.S.MANJULA
RESPONDENTS:
1 THRESIAKUTTY,
@ THERESA, VALLOMPURAYIDATHIL HOUSE,
SANKARAPILLY BHAGOM, MUTTOM.P.O, MUTTOM VILLAGE,
THODUPUZHA, IDUKKI DISTRICT-68581.
2 STATE OF KERALA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, 682031.
BY ADVS.
SRI. PRINCE J PANANAL
OP(Crl) No.617/2018
WP(C)No.37816 of 2017
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SRI. P.S.SYAMKUTTAN
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
19.02.2025, ALONG WITH WP(C).37816/2017, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
OP(Crl) No.617/2018
WP(C)No.37816 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946
WP(C) NO. 37816 OF 2017
PETITIONER:
PAUL JOSEPH
AGED 53 YEARS
S/O JOSEPH, VEMBALLIKUNNEL HOUSE, VELLARVALLI
AMSOM,THONDIYIL P.O. THONDIYIL DESOM, KANNUR
DIST.REP. BY HIS POA HOLDER SRI.KRISHNA
GIRISH,S/O KUNHIKRISHNAN, UMESH BHAVAN,
KUTHUPARAMBA P.O.MANATHERI, KANNUR, KERALA
BY ADV
SRI.M.P.ASHOK KUMAR
RESPONDENTS:
1 THRESSIAKUTTY @ THERESA
VALLOMPURAYIDATHIL HOUSE, SANKARAPILLY
BHAGOM,MUTTOM P.O. MUTTAM VILLAGE, THODUPUZHA,
IDUKKI DIST - 685 587.
2 THE DEPUTY TAHSILDAR
REVENUE RECOVERY, TALUK OFFICE,
IRITTY, KANNUR DIST-670 703.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.02.2025, ALONG WITH OP(Crl.).617/2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(Crl) No.617/2018
WP(C)No.37816 of 2017
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C O M M O N J U D G M E N T
(O.P.(Crl.) No.617/2018 and W.P.(C) No.37816/2017)
Dated this is the 19th day of February, 2025
The petitioner is the previous husband of the 1st
respondent and the respondent in M.C No.39/2011 of the
Chief Judicial Magistrate Court, Thodupuzha, filed
under Section 12 of the Protection of Women from
Domestic Violence Act, 2005.
2. Petitioner challenges Ext.P3(a) and P3(b) demand
notice issued in terms of the provisions of the Kerala
Revenue Recovery Act.
3. Heard the learned counsel for the petitioner and
learned Public Prosecutor.
4. Though notice was served on the 1st
respondent/wife, there is no appearance before this
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Court.
5. Learned counsel for the petitioner submits that,
Ext.P1 Order was passed by the Chief Judicial
Magistrate Court, Thodupuzha, granting relief under
Section 22 of the Protection of Women from Domestic
Violence Act, 2005, as per which Rs.2,00,000/- has been
awarded to compensate the mental harassment and cruelty
to the respondent/wife by the petitioner/husband.
Besides, a sum of Rs.5,00,000/- was also granted as
compensation. The learned counsel would pinpoint that,
no amount, whatsoever, was granted towards maintenance
in Ext.P1 Order. In purported enforcement of the Ext.P1
Order, Ext.P2 petition, bearing Crl.M.P No.2694/2017,
was preferred by the 1st respondent under Section 128
of the Code of Criminal Procedure, in which petition,
an Order has been passed. Pursuant to that, Exts. P3(a)
and P3(b) demand notices were issued as per the Kerala
Revenue Recovery Act. Learned counsel would highlight
that, Section 128 can be pressed into service only for
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enforcing an Order of maintenance, or for that matter,
an Order of interim maintenance and expenses of the
proceedings thereof. The same cannot be applied in
respect of an Order passed under Section 22 of the
Protection of Women from Domestic Violence Act, 2005.
6. Secondly, learned counsel would point out that,
the Revenue Recovery Act can be pressed into service
only in respect of any arrear of public revenue due on
land, as defined under Section 2(a), or any public
revenue due on land, as defined under Section 2(j). By
virtue of Section 71 of the Kerala Revenue Recovery
Act, it is open for the Government to notify that the
provisions of the Act will apply for recovery of
amounts due to certain institutions or class of
institutions, which procedure has not been, admittedly,
adopted in the case of maintenance due to a wife, be it
under the provisions of the Cr.P.C. or under the
provisions of the Protection of Women from Domestic
Violence Act, 2005. The provision for enforcement in
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respect of Orders passed under the Protection of Women
from Domestic Violence Act, 2005, is contained in
Section 20, sub clause (6), and also under Section 31,
of which the latter applies only in respect of
protection Orders, and the former, in respect of
monetary reliefs. Inviting the attention to Rule 6(5),
it is the contention of the learned Counsel that the
said rule can only be read and understood as confined
to Orders passed under the Protection of Women from
Domestic Violence Act, 2005, allowing maintenance; and
not in respect of the other reliefs.
7. This application was opposed by the learned Public
Prosecutor. It was pointed out that Rule 6(5) can be
pressed into service for enforcement of any Order
passed under Section 12 of the Protection of Women from
Domestic Violence Act, 2005. However, with respect to
the power of the learned magistrate, even in a case
where Section 128 of the Cr.P.C. is applicable, to
invoke the provisions of the Kerala Revenue Recovery
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Act, no enabling provision could be pointed out by the
learned Public Prosecutor.
8. Having heard the learned counsel for the
petitioner, as also, the learned Public Prosecutor,
this Court can only reject the contention that the
procedure contemplated in Section 125 of the Code of
Criminal Procedure cannot be pressed into service for
enforcement of an Order granting monetary relief. Rule
6(5) is extracted herein;
"The applications under section 12 shall be
dealt with and the orders enforced in the
same manner laid down under section 125 of
the Code of Criminal Procedure, 1973 (2 of
1974)."
9. The term used is 'applications under Section 12',
which includes applications for maintenance, monetary
reliefs, residence Orders, protection Orders, etc. All
Orders passed in an application under Section 12 can be
enforced in the same manner as laid down under Section
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125 of the Code of Criminal Procedure, is the
contemplation of Rule 6(2). If that be so, this Court
finds no reason to exclude one particular category,
that is to say, Orders granting monetary reliefs, from
the purview of Section 6(2). The said contention of the
counsel for the petitioner will therefore stand
rejected.
10. However, this Court finds considerable force in
the petitioner's contentions as regards invocation of
the provisions of the Kerala Revenue Recovery Act,
1968. As rightly pointed out, the provisions of the
said Act can be employed for recovery of arrears of
public revenue due on land, as also, to cases and
institutions where the provisions of the Act has been
made applicable by virtue of Section 71 of the Act.
According to the learned counsel for the petitioner, no
notification has been passed by the Government under
Section 71, making the Kerala Revenue Recovery Act
applicable for compensation or other monetary reliefs
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granted to a wife. Nor could the learned Public
Prosecutor produce any such enabling notification.
11. Therefore, even if it is considered that the
Orders under the Protection of Women from Domestic
Violence Act, 2005 can be enforced in the same manner
as laid down under section 125 of the Cr.P.C. and that
Section 128 applies, that will not clothe the learned
Magistrate to take recourse to the provisions of the
Kerala Revenue Recovery Act to realise an amount
Ordered under the provisions of the Protection of Women
from Domestic Violence Act, 2005 in the nature of
compensation under Section 22 of the Protection of
Women from Domestic Violence Act, 2005. Ext.P3(a) and
P3(b) demand notices, under the Kerala Revenue Recovery
Act, cannot therefore be sustained, and the same are
hereby set aside.
12. The writ petition is allowed as indicated above.
It is clarified that the remedies, if any, of the 1 st
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respondent, in accordance with law, for enforcement of
the reliefs granted by Ext.P1 Order, will not be
affected by this Judgment.
The petitioner herein is the petitioner in W.P.
(C)No.37816 of 2017 himself. He seeks to set aside
Ext.P1 Order produced in the said Writ Petition, which
is produced in this O.P.(Crl) as Ext.P3, as per which,
monetary relief has been granted to the respondent
herein, in terms of the provisions of the Protection of
Women from Domestic Violence Act, 2005. Learned
counsel would point out that, Ext.P3 herein is an
exparte Order, which was passed when the petitioner was
working overseas. The same is liable to be set aside,
is the contention urged.
2. This Court notice that the petitioner has not
approached the learned Chief Judicial Magistrate, which
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passed Ext.P3 Order, with a prayer to set aside Ext.P3
Order. Nor has the petitioner exhausted his remedy of
appeal statutorily provided. The learned counsel would
submit that, he has been told that an appeal has
already been filed. At any rate, the petitioner cannot
approach this Court at the first instance by filing an
O.P.(Crl), seeking to set aside an Order passed under
the provisions of the Protection of Women from Domestic
Violence Act, 2005, especially when alternate remedy is
very much available.
3. In such circumstances, this O.P.(Crl) will stand
dismissed, without prejudice to such other remedy as
available to the petitioner, as per law, against
Ext.P3.
Sd/-
C. JAYACHANDRAN
JUDGE
HKH/19.02.2025
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APPENDIX OF WP(C) 37816/2017
PETITIONER EXHIBITS
EXHIBITP1 PHOTOCOPY OF THE EX PARTE ORDER PASSED
BY THE CHIEF JUDICIAL MAGISTRATE COURT,
THODUPUZHA
EXHIBIT P2 PHOTOCOPY OF THE SEC.128 PETITION FILED
BY THE 1ST RESPONDENT BEFORE THE CHIEF
JUDICIAL MAGISTRATE COURT, THODUPZUHA
EXHIBITP3(A) PHOTOCOPY OF THE REVENUE RECOVERY NOTICE
ISSUED AGAINST THE PETITIONER
EXHIBIT P3(B) PHOTOCOPY OF THE REVENUE RECOVERY NOTICE
ISSUED AGAINST THE PETITIONER
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APPENDIX OF OP(CRL.) 617/2018
PETITIONER EXHIBITS
EXHIBIT P1 PHOTOCOPY OF THE PETITION DATED
03.03.2011 FILED BEFORE THE CHIEF
JUDICIAL MAGISTRATE COURT, THODUPUZHA .
EXHIBIT P2 PHOTOCOPY OF THE I.A. FILED BY THE
RESPONDENT.
EXHIBIT P3 THE ORDER IN MC.39/11 DATED 07.07.2016
PASSED BY THE CHIEF JUDICIAL MAGISTRATE,
THODUPUZHA .
