2025:KER:27491 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947 CRL.MC NO. 8097 OF 2024 DATED 27.07.2024 IN CMP NO.915 OF 2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR PETITIONER/PETITIONER: SABITHA, AGED 44 YEARS D/O. ABDUL KHADER, MATHILAKATH HOUSE, PATTANAM KARA, VADAKKEKKARA VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT, PIN - 683522 BY ADVS. AMAL KASHA T.B.HOOD M.ISHA RESPONDENTS: 1 ASHIM, S/O. ABDUL RAHIM, NADUVILAKATH VEETIL, POTHANVALAVU KARA, MANY BAZAR, KUZHUPPILLY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT, PIN - 683515 2 ASMA (DIED), W/O. ABDUL RAHIM, NADUVILAKATH VEETIL, POTHANVALAVU KARA, MANY BAZAR, KUZHUPPILLY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT, PIN - 683515 BY ADVS. P.M.BENZIR AKHILA SHUKKOOR VELIYAVEETTIL THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 2025:KER:27491 Crl.M.C.No.8097 of 2024 2 ORDER Dated this the 24th day of March, 2025 The petitioner is aggrieved by Annexure A7 order of the Judicial First Class Magistrate Court-I, North Paravur, passed in MP No.915 of 2017, filed by her seeking reliefs under the Muslim Women (Protection of Rights on Divorce) Act, 1986. The short facts are as under: On commencement of trial in her case, the petitioner submitted proof affidavit in lieu of her chief examination. Thereafter, the petitioner was cross examined by the 1st respondent. Later, the 1st respondent also filed proof 2025:KER:27491 Crl.M.C.No.8097 of 2024 3 affidavit in lieu of his cross examination. At that stage, learned Magistrate raised a doubt as to whether proof affidavit is acceptable in proceedings under the Muslim Women (Protection of Rights on Divorce) Act and asked the Counsel on both sides to address arguments on that issue. Thereupon, it was noticed that in Anooja Basheer v. State of Kerala and Another [2016 (2) KHC 195], this Court has held that in view of Rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986, all evidence in the proceedings under the Act has to be taken in the presence of the respondent, or his pleader when personal appearance is dispensed with. The Rule also stipulates that such evidence shall be recorded 2025:KER:27491 Crl.M.C.No.8097 of 2024 4 in the manner provided or specified for summary trials under the Code of Criminal Procedure. In view of the legal position, learned Magistrate refused permission to the 1st respondent to file proof affidavit and declared the petitioner’s examination was done improperly. 2. Learned Counsel for the petitioner contends that, insofar as petitioner’s proof affidavit is accepted and she was subjected to cross examination based on the proof affidavit, it is improper and unjust on the part of the learned Magistrate to declare her examination as illegal. 3. Learned Counsel for the 1st respondent submitted that his client had not raised any objection against acceptance of the proof affidavit filed by the 2025:KER:27491 Crl.M.C.No.8097 of 2024 5 petitioner and it was the court that has raised a doubt, resulting in Annexure A7 order. It is submitted that the 1st respondent is not keen on the petitioner being examined again, provided the petitioner does not object to the submission of proof affidavit by the 1st respondent. 4. Learned Counsel for the petitioner clarified that his client has no objection in the 1st respondent’s proof affidavit being accepted. 5. Insofar as the parties have no objection in accepting the proof affidavit submitted by the opposite side, the requirement of Rule 4 can be treated as directory, the whole purpose being to ensure fair trial. The Crl.M.C is hence allowed and Annexure A7 order is quashed. The learned Magistrate shall accept the proof affidavit submitted by the 1st 2025:KER:27491 Crl.M.C.No.8097 of 2024 6 respondent and permit the petitioner to cross examine him based on the affidavit. Sd/- V.G.ARUN JUDGE SSK/24/03 2025:KER:27491 Crl.M.C.No.8097 of 2024 7 APPENDIX OF CRL.MC 8097/2024 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PETITION DATED 23.03.2017 FILED BY THE PETITIONER AGAINST THE RESPONDENTS BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, NORTH PARAVUR Annexure A2 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 07.04.2017 FILED BY THE RESPONDENTS IN M.P.NO.915/2017 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, NORTH PARAVUR Annexure A3 TRUE COPY OF THE ORDER DATED 19.12.2022 OF THIS HON’BLE COURT IN CRIMINAL MISCELLANEOUS CASE NO.7899/2018 Annexure A4 TRUE COPY OF THE PROOF AFFIDAVIT DATED 27.05.2023 SWORN TO BY THE PETITIONER IN M.P.NO.915/2017 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, NORTH PARAVUR Annexure A5 TRUE COPY OF THE DEPOSITION GIVEN BY THE PETITIONER ON 01.07.2023 IN C.M.P.NO.915/2017 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, NORTH PARAVUR Annexure A6 TRUE COPY OF THE PROOF AFFIDAVIT DATED 15.06.2024 FILED BY THE 1ST RESPONDENT IN M.P.NO.915/2017 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, NORTH PARAVUR Annexure A7 CERTIFIED COPY OF THE ORDER DATED 27.07.2024 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, NORTH PARAVUR IN C.M.P. NO. 915/2017 RESPONDENTS EXHIBITS : NIL TRUE COPY P.A. TO JUDGE