Disposed

K.Sureshkumar v. S.Chitra

Madras HC29 Nov 2022CRP(MD)/1930/2021

Case brief

AI extract

What is this about?

This court explained that the Domestic Violence Act applies even after divorce if violence occurred during the relationship. The court held that Article 227 revision is not maintainable here as the challenge was not jurisdictional. Nevertheless, the learned Magistrate was directed to ensure expeditious disposal without insisting on personal appearance if counsel is present.

What did the court decide?

The Civil Revision Petition was disposed of. The learned Magistrate was directed to dispose of D.V.C.No.5 of 2021 within five months and not insist on personal appearance if parties are represented by

K.Sureshkumar Vs S.Chitra — Domestic Violence | Madras HC (2022)

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CRP(PD)(MD)No.1930 of 2021

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 29.11.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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CRP(PD)(MD)No.1930 of 2021 and

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CMP(MD)Nos.10388 of 2021 and 10039 of 2022

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K.Sureshkumar 2. K.Ponrakku 3. R.Karuppiah 4. S.Sudhadevi 5. S.Suganthi 6. D.Saravanan 7. Chellamari 8. Varadharajan ... Petitioners versus

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S.Chitra 2. Minor Akshayasri (Minor is represented by her mother 1^st respondent) ... Respondents

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Civil Revision Petition filed under Article 227 of the Constitution of India, to quash the petition under the Domestic Violence Act in D.V.C.No.5 of 2021 on the file of the Judicial Magistrate (Additional Mahila Court), Madurai.

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https://www.mhc.tn.gov.in/judis

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CRP(PD)(MD)No.1930 of 2021

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For Petitioners : Mr.J.Barathan

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For Respondents : M/s.A.S.Rajeswari

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ORDER

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This Civil Revision Petition is filed against the proceedings initiated by the first respondent herein in D.V.C.No.5 of 2021 before the learned Judicial Magistrate (Additional Mahila Court), Madurai.

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The petitioners herein are respondents in D.V.C.No.5 of 2021.

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The learned counsel appearing for the petitioners submits that the marriage solemnized between the first petitioner/husband and the first respondent/wife was dissolved by granting a decree of divorce dated 27.03.2019 in H.M.O.P.No.477 of 2018 by the Family Court, Madurai and therefore, the provisions of the protection of the Women from Domestic Violence Act, 2005 cannot be invoked.

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https://www.mhc.tn.gov.in/judis

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CRP(PD)(MD)No.1930 of 2021

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In this regard, the Hon'ble Apex Court in Prabha Tyagi vs.

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Kamlesh Devi, reported in (2022) 8 SCC 90, held as follows:

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“(ii) In the event of a divorce, marriage would be no longer be subsisting, but if a woman (wife) is subjected to any domestic violence either during marriage or even subsequent to a divorce decree being passed but relatable to the period of domestic relationship, the provisions of this D.V. Act would come to the rescue of such a divorced woman also.

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iii) That is why, the expression 'domestic relationship' has been defined in an expansive manner to mean a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by marriage.”

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In view of the decision cited supra, the contention raised by

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the learned counsel for the petitioners that the domestic violence proceedings cannot be continued after the decree of divorce, cannot be accepted.

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https://www.mhc.tn.gov.in/judis

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CRP(PD)(MD)No.1930 of 2021

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Regarding the proceedings initiated under the Protection of Women from Domestic Violence Act, 2002, the Hon'ble Full Bench of this Court, in the reference made in Crl.O.P.SR.Nos.31852 of 2022, etc. (batch), dated 17.11.2022, has answered as follows:

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“A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. (See Abdul Razak v Mangesh Rajaram Wagle (2010) 2 SCC 432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v Tuticorin Educational Society (2019) 9 SCC 538). In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.”

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https://www.mhc.tn.gov.in/judis

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CRP(PD)(MD)No.1930 of 2021

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The Hon'ble Full Bench of this Court has also held that the personal appearance of the parties shall not be insisted upon, if the parties are effectively represented through a counsel. The relevant portion is extracted as under:

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“iv. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V. Rules, 2006, makes it clear that the parties can appear before the Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v. State of West Bengal (2009 SCC OnLine Cal 1903).”

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This Civil Revision Petition is filed challenging the notice

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issued under Section 13 of the Protection of Women from Domestic Violence Act and not filed on the ground of lack of jurisdiction.

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https://www.mhc.tn.gov.in/judis

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CRP(PD)(MD)No.1930 of 2021

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Therefore, this Civil Revision Petition is not maintainable before this Court, as per the decision rendered by the Hon'ble Full Bench (cited supra). However, this Court is inclined to dispose of the Civil Revision Petition in the following terms:

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(i) If the petitioners are having any grievance that they have been unnecessarily added as parties to the proceedings, it is open to them to file an application before the learned Magistrate to delete their names and if any such application is filed, the learned Magistrate shall decide the same, as per the decision of the Hon'ble Supreme Court in Kunapareddy v. Kunapareddy Swarna Kumari, reported in ( 2016) 11 SCC 774 .

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(ii) If the petitioners are represented through a counsel, the learned Magistrate shall not insist on the personal appearance of the petitioners. However, the petitioners shall appear before the Court as and when their presence is required by the Court.

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(iii) The learned Magistrate is directed to dispose of D.V.C.No.5 of 2021 as expeditiously as possible preferably within a period of five months from the date of receipt of a copy of this order.

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https://www.mhc.tn.gov.in/judis

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CRP(PD)(MD)No.1930 of 2021

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