In a significant ruling, the Kerala High Court has held that decisions made under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) can be challenged through a criminal revision petition. This ruling was delivered by Justice Bechu Kurian Thomas in the case of C.K. Kunjumon v. State of Kerala and Another (OP(Crl.) No. 223 of 2024).
The Court dismissed the original petition filed under Article 227 of the Constitution of India, challenging the order of the Additional District and Sessions Court – VII, Ernakulam, which dismissed the appeal under Section 29 of the DV Act.
Background of the Case
The petitioner, C.K. Kunjumon, a 64-year-old resident of Ernakulam, had challenged an order issued by the Judicial First Class Magistrate Court-I, Ernakulam, directing him to pay monthly maintenance to his wife, Geetha, aged 59 years. The wife had initiated proceedings under Section 12 of the DV Act, seeking protection and maintenance. The Magistrate’s order was upheld by the Sessions Court, Ernakulam, in Criminal Appeal No. 269 of 2021. Subsequently, the petitioner approached the High Court with an original petition under Article 227, challenging the decision of the Sessions Court.
The petitioner’s legal team included Advocates Shaji Chirayath, Raju Joseph, Jiji M. Varkey, M.K. Safeela Beevi, Savitha Ganapathiyatan, and M.M. Shajahan. The respondent, the State of Kerala, was represented by the Public Prosecutor, and the second respondent, Geetha, was assisted by Advocate Vivek Venugopal, who was also appointed as Amicus Curiae by the Court.
Legal Issues Considered
The Court examined two critical legal issues:
1. Whether Article 227 of the Constitution of India can be invoked against final orders or judgments passed by the Sessions Court in an appeal?
2. Whether a revision petition can be filed against a final order of the Sessions Court issued under Section 29 of the DV Act?
Court’s Observations and Decision
Justice Bechu Kurian Thomas delved into the scope of powers under Article 227 of the Constitution, emphasizing that while the powers are broad, they are meant to be exercised as a supervisory measure over subordinate courts and tribunals. The Court quoted precedents, including M/s. Filmistan (P) Ltd. v. Balkrishna Bhiva and Satyanarayan Laxminarayan Hegde and Others v. Mallikarjuan Bhavanappa Tirumale, which clarified that Article 227 cannot substitute for appellate or revisional powers.
The Court observed, “The extraordinary power under Article 227 is not a substitute for appellate or revisional powers. When alternative remedies are available under statutes, recourse to the power under Article 227 of the Constitution of India cannot be resorted to.”
Regarding the second issue, the Court found that the DV Act, though it provides civil relief, prescribes a criminal procedure for enforcement. Under Section 28 of the DV Act, the Code of Criminal Procedure (Cr.P.C) is applicable to proceedings, including appeals under Section 29.
The Court cited the decision in Sathyabhama v. Ramachandran and the Full Bench judgment of the High Court of Allahabad in Dinesh Kumar Yadav v. State of Uttar Pradesh to conclude that a criminal revision petition is the appropriate remedy against an order passed under Section 29 of the DV Act. Justice Thomas stated:
“When the intention of the statute, as evident from Section 28 of the DV Act, is to make the provisions of the Cr.P.C applicable to petitions under Section 12 of DV Act, in the absence of any specific exclusion, a challenge against an order under Section 29 of DV Act also has to be through the procedure under Cr.P.C itself.”
Conclusion
The Kerala High Court concluded that an aggrieved person could indeed file a criminal revision petition against an order issued by the Sessions Court under Section 29 of the DV Act. Justice Thomas upheld the objection raised by the Registry regarding the maintainability of the original petition under Article 227, ruling that there were no exceptional circumstances to warrant invoking such powers.
The Court appreciated the assistance provided by Advocate Vivek Venugopal, the Amicus Curiae, and expressed gratitude for his services in elucidating the legal issues involved.
