Kerala High Court
Mariyam Philip vs Thushara Thomas on 12 June, 2025
2025:KER:40856
O.P.(Crl.)No.576/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947
OP(CRL.) NO. 576 OF 2024
AGAINST THE ORDER DATED 26.06.2024 IN Crl.A NO.127 OF 2024 OF
DISTRICT COURT & SESSIONS COURT,THALASSERY
PETITIONER/ FIRST RESPONDENT /COMPLAINANT:
MARIYAM PHILIP,
AGED 72 YEARS
W/O. LATE PHILIP,
VALLIKKAVUNKAL HOUSE,
KARIKKOTTAKKARI KOOMANTHODU P.O.,
IRITTY TALUK, KANNUR,
PIN - 670704
BY ADVS. SMT.RASMI NAIR T.
SRI.G.G.ABHILASH
RESPONDENTS/APPELLANT AND SECOND RESPONDENT/RESPONDENTS:
1 THUSHARA THOMAS,
AGED 44 YEARS
W/O. THOMAS V.P., VALLIKKAVUNKAL HOUSE,
KARIKKOTTAKKARI KOOMANTHODU P.O ,
IRITTY TALUK, KANNUR, PIN - 670704
2 THOMAS V.P
AGED 46 YEARS
S/O. LATE PHILIP, VALLIKKAVUNKAL HOUSE,
KARIKKOTTAKKARI KOOMANTHODU P.O.,
IRITTY TALUK, KANNUR,
PIN - 670704
BY ADVS.SRI.V.R.REKESH FOR R1
SRI.A.K.HARIDAS FOR R2
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 09.06.2025,
THE COURT ON 12.06.2025 DELIVERED THE FOLLOWING:
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O.P.(Crl.)No.576/2024
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JUDGMENT
The order passed by the Sessions Court, Thalassery, in
Crl.M.P.No.3778/2024 in Crl.A.No.127/2024, staying the order passed by
the Gram Nyayalaya, Iritti, in M.C.No.2/2021 till the disposal of the said
appeal, is sought to be set aside in this petition filed under Article 227 of
the Constitution of India, at the instance of the first respondent in that
appeal.
2. M.C.No.2/2021 was filed by the petitioner herein against her
son and daughter-in-law for various reliefs under the provisions of the
Protection of Women from Domestic Violence Act, 2005 (in short, 'PWDV
Act'). Concurrently, M.C.No.3/2021 was filed by the first respondent in
this original petition (second respondent in M.C.No.2/2021) against her
husband (second respondent herein) and mother-in-law (the petitioner in
M.C.No.2/2021) for various reliefs of protection, maintenance and
residence under the provisions of the PWDV Act. The learned
Nyayadhikari allowed both the above M.Cs. In M.C.No.2/2021, the
respondents therein (the respondents in this original petition) were
restrained from entering into the shared household, in addition to the
other reliefs of maintenance, compensation and prohibitory order. In
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M.C.No.3/2021, a direction was given to the first respondent therein
(second respondent in this original petition), to arrange alternate
accommodation of the same status and convenience to his wife and
children. In the appeal filed before the Sessions Court against the order
in M.C.No.2/2021, the appellant (first respondent in this original petition)
contended that the aforesaid case was filed in collusion by her husband
(second respondent herein) and mother-in-law (petitioner in this original
petition). The learned Sessions Judge, after considering the matter and
analysing the issues in brief, found that the order passed in
M.C.No.2/2021 by the learned Nyayadhikari, to the extent it applies to
the appellant (first respondent in this original petition) is liable to be
stayed till the disposal of the appeal. However, it was made clear that the
order in M.C.No.2/2021 insofar as it relates to the second respondent
(second respondent in this original petition also), is not stayed. It is the
aforesaid order which the petitioner herein seeks to set aside in this
petition filed under Article 227 of the Constitution of India.
3. Though the first respondent appeared through her counsel,
no arguments were advanced from her part. Heard the learned counsel
for the petitioner and the learned counsel for the second respondent.
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4. In the present original petition, the petitioner seeks to invoke
the powers of this Court under Article 227 of the Constitution of India to
set aside Ext P6 order passed by the learned Sessions Judge staying Ext
P1 order passed by the Nyayadhikari till the disposal of
Crl.A.No.127/2024 preferred against the said order. It is pertinent to note
that in Ext P6 order, the learned Sessions Judge had made it clear that
the stay directed thereunder was applicable only to the extent it applies
to the appellant in that appeal, and that it has no applicability as far as
the second respondent is concerned. In other words, there is absolutely
no legal impediment for the petitioner herein to enforce Ext P1 order
which she obtained from Gram Nyayalaya, Iritti, against her son who was
directed to provide the various reliefs allowed thereunder. The aforesaid
interim order of stay passed by the learned Sessions Judge cannot be
said to be illegal or perverse. On the other hand, the said order is
apparently intended to maintain the state of equilibrium and status quo
pending the disposal of the appeal on merits. It is well-settled that the
powers under Article 227 of the Constitution of India could be invoked
only when the High Court is satisfied that there is manifest irregularity or
impropriety in the orders or proceedings of the Courts or Tribunals
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coming under its jurisdiction. The aforesaid powers are intended to undo
the harm and injury that may be caused due to patently illegal and
wrong orders and proceedings by Courts and Tribunals coming under the
jurisdiction of the High Court concerned.
5. In Radhey Shyam v. Chhabi Nath, (2009) 5 SCC
616, the Apex Court has held that the powers under Article 227
can be exercised only in those cases where there is manifest
miscarriage of justice, and that the said power is not meant to
correct a mistake of fact and law. The relevant paragraph of the
said decision is extracted hereunder:
"31. Under Article 227 of the Constitution, the High Court does
not issue a writ of certiorari. Article 227 of the Constitution vests the
High Courts with a power of superintendence which is to be very
sparingly exercised to keep tribunals and courts within the bounds of
their authority. Under Article 227, orders of both civil and criminal
courts can be examined only in very exceptional cases when manifest
miscarriage of justice has been occasioned. Such power, however, is
not to be exercised to correct a mistake of fact and of law."
6. Thus, even in cases where there is a mistake of fact or law, the
powers under Article 227 cannot be invoked unless it is shown that there
is manifest miscarriage of justice.
7. As far as the present case is concerned, there is absolutely
no grounds to interfere with Ext P6 order passed by the learned Sessions
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Judge. Therefore, the reliefs sought for by the petitioner in this original
petition, cannot be granted.
In the result, the original petition is hereby dismissed.
Sd/-
G. GIRISH, JUDGE
DST
2025:KER:40856
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED 17.05.2024
IN MC 2/2021 OF GRAMA NYAYALAYA IRITTI,
PAAYAM,
EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 17.05.2024
IN MC 3/2021 OF GRAMA NYAYALAYA IRITTI ,
PAAYAM
EXHIBIT P3 TRUE COPY OF THE MEMORANDUM OF APPEAL IN
CRL.A 127/2024 OF THE HON'BLE DISTRICT AND
SESSIONS COURT , THALASSERY
EXHIBIT P4 TRUE COPY OF THE CRL.MP. 3778 /2024 IN
CRL.A 127/2024 OF THE HON'BLE DISTRICT AND
SESSIONS COURT , THALASSERY
EXHIBIT P5 THE TRUE COPY OF THE COUNTER FILED BY THE
PETITIONER IN CRL.M.P 3778/2024 IN CRL.A
127/2024 OF THE HON'BLE DISTRICT AND
SESSIONS COURT, THALASSERY
EXHIBIT P6 THE TRUE COPY OF THE ORDER IN CRL.M.P
3778/2024 IN CRL.A 127/2024 OF THE HON'BLE
DISTRICT AND SESSIONS COURT , THALASSERY
DATED 26.06.2024
EXHIBIT P7 TRUE COPY OF THE RENT DEED DATED 20.05.2024
EXHIBIT P8 TRUE COPY OF THE REPORT SUBMITTED BY THE
ADVOCATE COMMISSIONER DATED 19.06.2024.
