Allowed

Nilofiya Palliyali v. State of Kerala

Kerala HC25 Oct 2022WP(C)/20540/2022

Case brief

AI extract

What is this about?

The petition sought directions for expeditious disposal of pending family and domestic violence cases. While holding the writ under Article 226 non-maintainable, the Court invoked Article 227 on special circumstances to direct subordinate courts to conclude pending proceedings within four months.

What did the court decide?

Direction to Family Court, Tirur, and Judicial Magistrate, Parappanangadi to dispose of pending cases within four months.

Nilofiya Palliyali Vs State of Kerala — Writ and Judicial Review | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 25^TH DAY OF OCTOBER 2022/ 3RD KARTHIKA, 1944 WP(C) NO. 20540 OF 2022

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PETITIONER:

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1 NILOFIYA PALLIYALI, AGED 30 YEARS, D/O ABDUL AZEEZ PALLIYALI, PALLIYALI HOUSE, KADALUNDI NAGARAM POST, MALAPPURAM DIST, KERALA, PIN – 673314.

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2 FATHAHA N., AGED 11 YEARS( MINOR REPRESENTED BY MOTHER GUARDIAN)

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NILOFIYA PALLIYALI, AGED 29 YEARS, D/O ABDUL AZEEZ PALLIYALI, PALLIYALI HOUSE, KADALUNDI NAGARAM POST,

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MALAPPURAM DIST, KERALA, PIN – 673314.

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3 ZAIN N., AGED 5 YEARS ( MINOR REPRESENTED BY MOTHER GUARDIAN)

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NILOFIYA PALLIYALI, AGED 29 YEARS, D/O ABDUL AZEEZ PALLIYALI, PALLIYALI HOUSE, KADALUNDI NAGARAM POST, MALAPPURAM DIST, KERALA, PIN – 673314.

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BY ADV PINTO FREDERIC

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSICUTOR ERNAKULAM, PIN – 682031.

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W.P.(C) No.20540 of 2022

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2 MOHAMED ALFATH N., AGED 40 YEARS, S/O KUNJALANKUTTY, NALAKATH HOUSE, CHETTIPADI, PARAPPANANGADI, KOTAKKAD, MALAPPURAM DISTRICT, PIN – 676319.

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3 THE CIRCLE INSPECTOR OF POLICE, THIRURANGADI*

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R1& R3 BY SRI.S.RAJMOHAN, SR.GP BY ADV P.T.SHEEJISH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 12.10.2022, THE COURT ON 25.10.2022 DELIVERED THE FOLLOWING:

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W.P.(C) No.20540 of 2022

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JUDGMENT

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Ajithkumar, J.

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This Writ Petition under Article 226 of the Constitution of India was filed seeking a direction to the Family Court, Tirur to dispose of within a time frame O.P.No.279 of 2022, O.P.No.482 of 2021, and M.C.No.202 of 2022 pending before that Court. The petitioner also implore a direction to the Judicial Magistrate of the First Class, Parappanangadi to dispose of M.C.No.64 of 2021 pending before that Court expeditiously. Alternatively, the petitioner seeks to transfer all those cases to the courts in the court complex at Kozhikode.

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When this Writ Petition was filed, it was noticed that considering the reliefs claimed, a Writ Petition under Article 226 of the Constitution of India could not be entertained. This Court, after looking into the averments in the Writ Petition directed to number the Writ Petition, observing that its maintainability can be decided on the judicial side.

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On 24.06.2022, notice was ordered to be served on the 2^nd respondent. The learned Government Pleader took

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W.P.(C) No.20540 of 2022

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notice for the 1^st respondent. Additional 3^rd respondent was impleaded suo motu as per the order dated 10.08.2022. On 26.07.2022, a report from the Taluk Legal Services Committee was called for. On 10.08.2022, after perusal of the report submitted by the Taluk Legal Services Committee, Parappanangadi the Project Co-ordinator, Victim Resource Centre (VRC) was directed to render assistance to the petitioner. Accordingly, Advocate M.Shajna was appointed as the mentor of the petitioner, who rendered necessary advice and counseling to the petitioner and assisted this Court while considering this matter.

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Heard the learned counsel appearing for the petitioner, the learned Senior Government Pleader, the learned counsel appearing for the 2^nd respondent, and Advocdate M.Shajna.

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The relief claimed by the petitioner essentially is a direction to the Family Court, Tirur to dispose of O.P.No.729 of 2022, O.P.No.482 of 2021 and M.C.No.202 of 2022. Another M.C.No.64 of 2021 is pending before the Judicial Magistrate of

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W.P.(C) No.20540 of 2022

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the First Class, Parappanangadi and the petitioner seeks to dispose of that M.C. also within a time frame. The petitioner averred in the petition that the 2^nd respondent has meted out all sorts of cruelty and harassment on the petitioner and due to the delay in the disposal of the cases, she has been put through much difficulty and agony.

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The petitioner is the wife of the 2^nd respondent. O.P.No.482 of 2021 was filed by the 2^nd respondent for cancellation of the document by virtue of which the petitioner obtained a landed property. O.P.No.279 of 2022 was filed by the 2^nd respondent for getting custody of the child. M.C.No.202 of 2022 was filed by the petitioner against the 2^nd respondent claiming maintenance. The petitioner filed M.C.No.64 of 2021 before the Judicial Magistrate of the First Class, Parappanandagi under the Protection of Women from Domestic Violence Act, 2005. The allegation of the petitioner is that the 2^nd respondent has been dragging the cases in his attempt to deny her any kind of relief. The further allegation is that she and her minor child are denied maintenance and

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W.P.(C) No.20540 of 2022

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she has even been attacked physically. It is contended that regarding assault on her police cases have arisen. Pointing out such circumstances, the petitioner seeks to dispose of the cases expeditiously. Alternatively, she seeks to transfer the cases to the Court Complex, Kozhikode.

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The 2^nd respondent refutes the allegations and submitted that this Writ Petition is not maintainable. The relief claimed in the petition is expeditious disposal of four cases pending in different courts. Considering the nature of relief claimed and the pleadings, it has to be said that the Writ Petition is not maintainable. But the facts and circumstances of the cases show that a different approach is needed in this Writ Petition. The pleadings and materials on record show that the petitioner is a hapless woman and she has been put through all sorts of difficulties in life; all flow from her marital tie. Therefore, it is expedient in the interest of justice to have this Court show indulgence in the matter. Considering the said circumstances, we are of the view that this is a fit case where this court has to invoke its jurisdiction under Article 227 of the Constitution.

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W.P.(C) No.20540 of 2022

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8. In Jasbir Singh v. State of Punjab [(2006) 8

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SCC 294] the Apex Court held that the power of superintendence conferred upon the High Court under Article 227 of the Constitution of India over all courts and Tribunals throughout the territory of the State is both of administrative and judicial nature and it could be exercised suo motu also.

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9. In Radhey Shyam v. Chhabi Nath [(2015) 5 SCC

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423] a Three-Judge Bench of the Apex Court reiterated that the power under Article 227 of the Constitution of India can be invoked by the High Court suo motu as a custodian of justice.

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Now, the question is whether the petitioner is entitled to get any of the reliefs claimed. It is true that the cases are comparatively new. But considering the plight of the petitioner, especially, her inability to lead a peaceful life and lack of means for the sustenance of herself and her minor child, it is only appropriate to direct the Family Court, Tirur, and also the Judicial Magistrate of the First Class, Parappanangadi to expedite the proceedings in the cases mentioned herein before, to which she is a party.

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W.P.(C) No.20540 of 2022

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Accordingly, we dispose of this Writ Petition and direct, under Article 227 of the Constitution of India, the Family Court, Tirur to dispose of O.P.No.482 of 2021, O.P.No.279 of 2022 and also M.C.No.202 of 2022 as expeditiously as possible, at any rate, within a period of four months from the date of production of a certified copy of this judgment. Similarly, the Judicial Magistrate of the First Class, Parappanangadi is directed to dispose of M.C.No.64 of 2021 within a period of four months from the date of production of a certified copy of this judgment. The Judicial Magistrate of the First Class, Parappanangadi will see that necessary help and assistance, including through police, is rendered to the petitioner in the event of her complaining of any kind of domestic violence.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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pv/dkr

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W.P.(C) No.20540 of 2022

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PETITIONER EXHIBITS

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Exhibit P1 PHOTOCOPY OF O.P.NO.482/2021 FILED BEFORE TIRUR FAMILY COURT FOR CANCELLATION OF DOCUMENT Exhibit P2 PHOTOCOPY OF FIR NO.330/2021 REGISTERED AGAINST THE RESPONDENT U/S 498 A IPC AND S.75 JUVENILE JUSTICE ACT Exhibit P3 PHOTOCOPY OF INTERIM ORDER IN MC.64/2021 BY JFCM COURT PARAPANANGADI Exhibit P4 PHOTOCOPY OF FIR NO.72/2022 U/S 31 OF DV ACT, AND S.341,323, OF IPC, CHARGED AGAINST THE RESPONDENT BY PARAPPANANGADI POLICE Exhibit P5 COPY OF THE GUARDIAN O.P.279/2022 FILED BY RESPONDENT IN TIRUR FAMILY COURT

Nilofiya Palliyali v. State of Kerala

Case brief

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Nilofiya Palliyali v. State of Kerala

Case brief

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