Kerala High Court
Nazar.A vs State Of Kerala on 27 January, 2025
2025:KER:6641
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.MC NO. 8951 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 04.08.2023 IN Crl.A NO.15 OF
2022 OF ASSISTANT SESSIONS COURT/II ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM ARISING OUT OF THE ORDER/JUDGMENT DATED IN MC
NO.8 OF 2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ATTINGAL
PETITIONER/APPELLANT/RESPONDENT:
NAZAR.A
AGED 63 YEARS
S/O ABDUL WAHAB, MARHABA, KAAVUNADA, ALAMCODE.P.O,
ALAMCODE NOW RESIDING AT ROOM NO 6 ASHA LODGE, NEAR
KSRTC, OPP CSI MISSION HOSPITAL, ATTINGAL P.O,
ATTINGAL, THIRUVANANTHAPURAM, PIN - 695101
BY ADV M.R.SARIN
RESPONDENTS/STATE/RESPONDENT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
ADDL.R2 MUMTHAS NAZAR,
AGED 54 YEARS
D/O KUNJU MUHAMMED, MARHABA, KAAVUNADA, ALAMCODE
VILLAGE, ALAMCODE.P.O, THIRUVANANTHAPURAM,
IS IMPLEADED AS ADDL.R2 VIDE ORDER DATED 11/11/2024 IN
CRL.M.A.NO.1/2024.
BY ADV Liju MP
ADV.C.N.PRABHAKARAN - SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.01.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No. 8951 of 2024
..2..
2025:KER:6641
O R D E R
Dated this the 27th day of January, 2025
The petitioner is aggrieved by Annexure-A1 Order, which is
an ex-parte Order passed under the provisions of the
Protection of Women from Domestic Violence Act, 2005, by
the Judicial First Class Magistrate Court-II, Attingal. As
per the Order impugned, the respondent is restrained from
committing any act of domestic violence against the
petitioner and also from causing any obstruction to the
peaceful living of the petitioner in the shared household
by name 'Marhaba', Alamcode Village. The third limb of the
Order directs the respondent to withdraw himself from the
said shared household. The Order has a fourth limb, which
restrains the respondent/husband from making any
obstruction to the peaceful living of the petitioner/wife
in another residence by name 'Happy Home', Pallickal P.O.,
Pallickal Village.
2. Learned counsel would submit that sweeping Orders like
the one directing the petitioner herein to withdraw from
..3..
2025:KER:6641
the shared household at 'Marhaba', Alamcode Village, cannot
be passed without hearing the petitioner/husband. That
apart, a report from the Protection Officer in terms of the
proviso to Section 12 is also not obtained, is the
grievance urged.
3. Per contra, learned counsel for the petitioner would
submit that the Order impugned is perfectly illegal and the
same is required to prevent instances of domestic violence
against the respondent/wife.
4. Having heard the learned counsel appearing for the
respective parties, this Court finds prima facie merit in
the submissions made by the learned counsel for the
petitioner/husband. The purpose of ex-parte Order is to
prevent the possibility of an imminent danger and to
prevent instances of domestic violence to women, even
during the time before which notice is served on the
petitioner/husband. The same is an interim measure to
protect the rights of the women. Therefore, the first two
..4..
2025:KER:6641
limbs of the impugned Annexure-A1 Order, which restrains
the petitioner/husband from causing any obstruction to the
peaceful living of the respondent/wife, will squarely come
within the ambit of such ad interim ex-parte Order.
However, it may not be proper to issue a sweeping direction
to the petitioner/husband to withdraw from the residence at
'Marhaba', without hearing the affected party. The
respondent/wife had sought for protection in both the
houses at 'Marhaba', as also, in 'Happy Home'. Insofar as
'Marhaba' is concerned, the respondent herein/wife wanted
the petitioner herein/husband to withdraw; and insofar as
'Happy Home' is concerned, she wanted a protection order
restraining the petitioner herein from causing any
obstruction to the peaceful living. This Court is of the
opinion that both these directions, insofar as it pertain
to 'Marhaba' and also the 'Happy Home' cannot be passed
without hearing the husband/petitioner.
5. In the circumstances, the first two limbs of
Annexure-A1 Order will remain intact, without any
..5..
2025:KER:6641
interference, whatsoever. The second two limbs are
interfered with and are hereby vacated. The learned
Magistrate is directed to hear the parties and to pass
orders on merits in respect of the said two limbs, which
pertain to the withdrawal of the petitioner/husband from
the home 'Marhaba'; and his restraint from obstructing the
peaceful living of the respondent/wife at the second
residence, at 'Happy Home'. Both the parties shall appear
before the trial court on 14.02.2025. There will be a
direction to the learned Magistrate to post the matter
immediately for hearing and to dispose of the interim
applications within a period of three weeks from such date
of hearing, after hearing both sides.
The Criminal Miscellaneous Case will stand disposed of as
above.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
..6..
2025:KER:6641
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE ORDER IN CMP NO
700/2020 IN M.C 8/2020 BEFORE THE
JUDICIAL FIRST-CLASS MAGISTRATE COURT
II, ATTINGAL DATED 18.02.2020
Annexure A2 THE TRUE COPY OF THE ORDER IN C.MP NO
1272/2021 IN M.C NO 8/2020 DATED
8.12.2020 BEFORE THE JUDICIAL MAGISTRATE
OF FIRST CLASS II, ATTINGAL
Annexure A3 THE TRUE COPY OF THE JUDGEMENT IN
CRIMINAL APPEAL NO 15/2022 BEFORE THE
ADDITIONAL SESSIONS JUDGE II,
THIRUVANANTHAPURAM DATED 4.08.2023
