THANSEEL v. SINI

R.BASANT, J------------------------------------W.P(C).No.7450 of 2007-------------------------------------Dated this the 6th day of March, 2007JUDGMENTThe petitioner is aggrieved by Ext.P6 order passed by theJudicial Magistrate of the First Class, Varkala. Before the learnedMagistrate, the respondent herein initiated proceedings under Section12 of the Protection of Women from Domestic Violence Act, 2005(hereinafter referred to as `the D.V Act'). She asserted that she wasthe wife of the petitioner. She asserted that there was domesticviolence against her. The respondent prayed for a protection order asalso a monetary order under Sections 18 and 20 of the D.V Act. Thepetitioner entered appearance before the learned Magistrate. Heraised various contentions. It would appear that the petitionerinsisted that certain preliminary points may be decided. The learnedMagistrate by the impugned order Ext.P6 considered some of theobjections raised and ruled that the petition was liable to beproceeded with and appropriate order passed. The objection raised tomaintainability was turned down by the learned Magistrate.2.The petitioner has rushed to this Court with this petitionunder Article 227 of the Constitution. The petitioner contends that hisplea that there was no marriage subsisting was not considered by thelearned Magistrate as a preliminary issue. That issue regarding W.P(C).No.7450 of 20072maintainability must have been raised as a preliminary issue anddecision rendered on that.3.I am afraid that this contention cannot be accepted. Thelearned Magistrate, under the provisions of the D.V Act, is expected togive life to a piece of civil law administered through the structurecreated under the Code of Criminal Procedure. The nature of therelief which can be granted, the target group to which such relief canbe granted, the circumstances under which such relief is to begranted must all impress on the functionaries under the statute theneed for expedition in the disposal of a petition filed under Section 12of the D.V Act. I am unable to agree that the provisions of the D.V Actcontemplates different tiers of proceedings in the disposal of apetition under Section 12 of the D.V Act. The request to decidequestions as preliminary issues based on disputed facts cannotobviously be entertained by the Magistrate. He has to consider theentire question and give decision as mandated under Section 12(5) ofthe D.V Act within a period of 60 days from the date of the firsthearing. Of course, in an appropriate and exceptional case, where onadmitted facts the petition is not maintainable, the Court will not bewithout jurisdiction to decide the issue of maintainability. Here thedispute raised is about subsistence or not of marriage. That questionwould certainly call for evidence to be adduced. I am certainly of the W.P(C).No.7450 of 20073opinion that the learned Magistrate committed no error in notaccepting the request of the petitioner to decide that question as apreliminary issue. In fact the impugned order does not at all showthat the said question was raised when the objection tomaintainability was canvassed before the learned Magistrate. Be thatas it may, I am satisfied that there is absolutely no necessity for thisCourt to invoke the powers under Article 227 of the Constitution orSection 482 Cr.P.C. I would observe that it was not necessary for thelearned Magistrate even to consider the question of maintainability asa preliminary issue as done by him in Ext.P6. I am satisfied that thelearned Magistrate must consider all contentions raised and disposeof the application under Section 12 of the D.V Act as expeditiously aspossible - at any rate, within the stipulated period of 60 days. 4.This Writ Petition is, in these circumstances, dismissedwith a direction to the learned Magistrate to dispose of the applicationunder Section 12 of the D.V Act expeditiously. The Registry shallcommunicate this order to the learned Magistrate forthwith.(R.BASANT, JUDGE)rtr/-