Kerala High Court
Linu Joseph vs State Of Kerala on 23 August, 2025
2025:KER:63585
Crl.M.C.No.2602/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
RD
SATURDAY, THE 23 DAY OF AUGUST 2025 / 1ST BHADRA, 1947
CRL.MC NO. 2602 OF 2025
AGAINST THE CMP NO.555 OF 2024 IN M.C.NO.36/2014 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, ALUVA
PETITIONER/ ACCUSED:
LINU JOSEPH
AGED 41 YEARS
S/O JOSEPH KUTTICKAL,
KUTTICKAL HOUSE
BEHIND UKKENS THEATRE
EVANOOR CHEROOR P.O THRISSUR,
PIN - 671123
BY ADVS. SRI.AMEER.K.M.
SMT.FASNA T.Y
SMT.M.J.JESNA
SMT.HAZEENA BEEVI N.H
SMT.POORNIMA RAJAN
SHRI.ASVINO SHEEJ.S
DR.PAULY MATHEW MURICKEN
RESPONDENT/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
REPRESENTING SHO ALUVA
WEST POLICE STATION
HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031
2 ASHA GEORGE, AGED 52 YEARS
W/O LINU JOSEPH, PANDALAYIL HOUSE A-14,
SANTHI NAGAR ANNEXE RAJAGIRI P.O,SOUTH KALAMASSERY
ERNAKULAM, PIN - 683104
BY ADVS.SRI.N.K.SUBRAMANIAN FOR R2
SHRI.ATHUL TOM, SMT.LALITHA E.
SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.08.2025, THE COURT ON 23.08.2025 PASSED THE FOLLOWING:
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ORDER
The proceedings under Section 128 Cr.P.C (Section 147 of BNSS)
initiated by the petitioner in M.C.No.36/2014 on the files of the Judicial
First Class Magistrate Court-II, Aluva, towards enforcement of the order
passed by the Magistrate under Section 19 (f) of the Protection of Women
from Domestic Violence Act, 2005(in short, ‘PWDV Act‘) towards realisation
of an amount of Rs.7,81,656/- as the portion of the rent payable for
alternate accommodation availed by the petitioner in that M.C., is under
challenge in this petition filed under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023, by the first respondent in that M.C.
2. According to the petitioner, the provisions contained under
Section 128 of the Cr.PC, cannot be invoked for the enforcement of any
order other than maintenance passed by the Magistrate under the
provisions of the PWDV Act. For the above reason, Annexure-A1 CMP
filed by the second respondent (petitioner in the M.C.) and all further
proceedings pursuant to it in M.C.No.36/2014 on the files of the Judicial
First Class Magistrate Court-II, Aluva, are sought to be quashed.
3. Heard the learned counsel for the petitioner, the learned
counsel for the second respondent and the learned Public Prosecutor
representing the State of Kerala.
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4. Rule 6(5) of the Protection of Women From Domestic
Violence Rules, 2006, provides for the enforcement of the orders passed
by the Magistrate in applications filed under Section 12 of the PWDV Act.
As per the above Rule, such orders are to be enforced in the same
manner laid down under Section 125 of the Cr.PC.
5. The enforcement of an order passed under Section 125 Cr.PC
(Section 144 BNSS) could be done by two ways. By resorting to
Sub-Section (3) of Section 125 Cr.PC, an aggrieved person could seek the
aid of the Magistrate for issuing a warrant against the opposite party
towards levying the amount due for every breach of the said order, and
to detain the opposite party for a term which may extend to one month
or until payment if sooner made. The other way is to take recourse to
Section 128 Cr.PC for enforcement of the order at the place where the
opposite party is found.
6. Section 431 of the Cr.PC (Section 471 BNSS) provides that
any money (other than fine) payable by virtue of any order passed under
the Cr.PC shall be recovered as if it were a fine, if the method of recovery
of such amount is not otherwise expressly provided for. As far as the
PWDV Act is concerned, the mode of recovery of the amount ordered to
be paid as rent under Section 19(f) of the said Act, is not expressly
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provided in the said enactment. That being so, the person in whose
favour the order is so passed could very well seek the aid of Section 431
Cr.PC, as stated above, for the enforcement of the said order in the same
manner as in the case of orders under Section 125 Cr.PC being enforced
under Section 128 Cr.PC. There is absolutely no merit in the challenge
raised by the petitioner that the amount directed to be paid as rent could
not be realised by resorting to Section 128 Cr.PC, since Rule 6(5) of the
Protection of Women from Domestic Violence Rules, 2006, provides for
the enforcement of the order passed in the applications filed under
Section 12 of the PWDV Act by taking recourse to the procedure laid
down under Section 125 of the Cr.PC. Since the mode of enforcement
provided under Section 128 Cr.PC has to be taken as a continuation of
Section 125 Cr.PC, there is absolutely no bar in resorting to Section 128
Cr.PC for the enforcement of the order passed under Section 19(f) of the
PWDV Act, in view of the enabling provisions contained in Rule 6(5) of
the Protection of Women from Domestic Violence Rules, 2006, and
Section 431 Cr.PC.
7. The learned counsel for the petitioner cited the decisions
rendered by this Court in Neethu v. Trijo Joseph [2022 (4) KHC
384] and Mathew Daniel v. Leena Mathew [2022(5) KHC 433] in
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support of his argument that the nature of the proceedings under the
PWDV Act are of civil nature. The dictum laid down by the Hon’ble
Supreme Court in Indra Sarma v. V.K.V. Sarma [2013(4) KHC 759]
is also relied on by the learned counsel for the petitioner in support of
the above argument. There is absolutely no dispute on that point laid
down in the aforesaid decisions about the nature of the proceedings
under the PWDV Act. But, when the Rules framed pursuant to the
aforesaid enactment clearly provide for the enforcement of the orders
passed in the applications under Section 12 of the PWDV Act in the same
manner as laid down under Section 125 Cr.PC, it cannot be said that the
person in whose favour such order has been passed is precluded from
resorting to Section 128 Cr.PC for the enforcement of that order. This is
due to the simple reason that Section 128 Cr.PC has to be taken as a
continuation of Section 125 Cr.PC. Therefore, the challenge raised by the
petitioner in the present petition is devoid of merit.
In the result, the petition is hereby dismissed.
(sd/-)
G. GIRISH, JUDGE
DST
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APPENDIX
PETITIONER ANNEXURES
ANNEXURE A1 THE CERTIFIED COPY OF THE CMP NO.555/2024 IN
MC NO. 36/2014
ANNEXURE A2 THE TRUE PHOTOCOPY OF THE PAYMENT RECEIPTS
AND BANK STATEMENTS
ANNEXURE A3 THE TRUE COPY OF THE JUDGMENT IN CRL MC.
NO.9809/2023
ANNEXURE A4 THE TRUE COPY OF THE BANK PAYMENT RECEIPT
ANNEXURE A5 THE TRUE COPY OF THE ORDER IN MC 36/2014
DATED 30.06.2015
ANNEXURE A6 THE TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER IN CMP NO.555 OF 2024 IN MC NO.36
OF 2014
ANNEXURE A7 THE TRUE COPY OF THE ORDER IN CMP 857/2023 IN
MC 36/2014 DATED 11.08.2023
ANNEXURE A8 THE TRUE COPY OF THE ORDER IN OP 102/2012
DATED 18.02.2013 OF THE HONBLE FAMILY COURT
ERNAKULAM
RESPONDENT ANNEXURES
ANNEXURE R2(A) A TRUE COPY OF THE ORDER DATED 26.06.2018 IN
C.M.P 1254/2018 IN CC 730/2014
ANNEXURE R2(B) A TRUE COPY OF THE MEMORANDUM OF APPEAL DATED
10.08.2015 IN CRL. A NO.314/2015 OF DISTRICT
AND SESSIONS COURT, ERNAKULAM
ANNEXURE R2(C) A TRUE COPY OF THE JUDGMENT DATED 18.09.2017
IN CRL.A NO.314 OF 2015 OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE, NORTH PARAVUR
ANNEXURE R2(D) A STATEMENT SHOWING THE ARREARS OF
MAINTENANCE AS PER ORDER DATED 08.03.2012 IN
CMP 857/23 IN MC 36/24, J.F.M.C ALUVA, TILL
NOW AS ORDERED IN ANNEXURE A5
ANNEXURE R2(E) A TRUE COPY OF THE C.M.P NO.2193 OF 2024
DATED 20.12.2024 OF THE HONOURABLE JFCM
COURT, ALUVA