Research › Search › Judgment

Kerala High Court · body

2008 DIGILAW 8 (KER)

Kunhammu v. Protection Officer

2008-01-04

V.RAMKUMAR

body2008
JUDGMENT V. Ramkumar, J. 1. In this Writ Petition filed under Art.226 and Art.227 of the Constitution of India, the husband, husband's second wife, husband's sister and husband's sister's son respectively of the 2nd respondent Aysha challenge Ext. P2 order passed by the JFCM-I, Mannarkkadu in CMP No. 1903 of 2007 which was an application filed by the said Aysha under S.12 of the Protection of Women from Domestic Violence Act, 2003 ('the Act' for short). 2. The learned counsel appearing for the petitioner's made the following submissions in support of the petition. S.13(2) of the Act is unconstitutional and violative of the rights guaranteed under Art.14 and Art.21 of the Constitution and the order is opposed to the principles of natural justice. It confers arbitrary power on the Protection Officer in the matter of serving notice to the respondents. Even though S.37(2)(j) of the Act provides for the prescription of a Form of declaration, to be issued under S.13(2) of the said Act, no such Form has been prescribed in the Protection of Women from Domestic Violence Rules, 2006 ('the Rules' for short). The Protection Officer had not served notice on the application on the Writ Petitioners. It was without serving notice on the Writ Petitioners that the Protection Officer made a declaration under S.13(2) of the Act. That was how the petitioners were set ex parte by the learned Magistrate. On these grounds, the reliefs sought for in this Writ Petition may be granted. 3. Learned counsel appearing for the 2nd respondent took exception of the above submission and submitted that S.13(2) of the Act does not suffer from any arbitrary or excessive delegation of power on the Protection Officer. 4. It is true that the Form of declaration under S.13(2) of the Act has not been prescribed under the Rules. But then, S.37(2)(j) is not a mandatory provision but an enabling provision in exercise of the said provision the Rule making authority may or may not prescribe a Form. It is only if the said provision is mandatory, could it be said that failure to prescribe the Form will render S.13(2) unworkable. Merely because a Protection Officer in a given case might abuse the power vested in him, it cannot be said that there is excessive or arbitrary delegation of power in such functionary or that there is unbridened authority conferred on such functionary. Merely because a Protection Officer in a given case might abuse the power vested in him, it cannot be said that there is excessive or arbitrary delegation of power in such functionary or that there is unbridened authority conferred on such functionary. If in the instant case, the Protection Officer has not given notice of the application to the Writ Petitioners, that is a matter which they can profitably canvass before the Appellate Court since Ext. P2 order is an order which is appealable under S.29 of the Act. Moreover, clause (c) of sub-rule 2 of R.12 of the Rules declares that for serving the notices under S.13 or any other provisions of the Act, the provisions under Order - V of the CPC or the provisions under Chapter - VI of the Code of Criminal Procedure as far as practicable may be adopted. Sub-rule 3 of R.12 enables the Protection Officer to report to the Court that service of notice under the Act has been effected and thereupon, the said provision confers the power on the Court to pass appropriate orders. It has to be presumed that Ext. P2 order was this passed in accordance with the above statutory scheme. If there has been infraction of any of the provisions of the Act, the petitioner can canvass the same in the appeal. Since Ext. P2 order is an appealable order, I decline to interfere with the same in exercise of extra ordinary jurisdiction under Art.226 and 227 of the Constitution. This Writ Petition is accordingly dismissed, without prejudice to the right of the petitioner to file appeal under S.29 of the Act against Ext. P2 order. In case the petitioner files an appeal within a reasonable time from today, I am sure that the Sessions Court before which the said appeal is filed, will take a lenient view in the matter of condonation of delay taking notice of the fact that the petitioner was bona fide prosecuting his case before this Court.