Disposed

Ameenabeevi v. Asbina Asrin

Madras HC1 Dec 2022CRP(MD)/405/2022

Case brief

AI extract

What is this about?

The Madras High Court held that a Civil Revision Petition under Section 227 CPC is not maintainable against proceedings under the Domestic Violence Act as they do not suffer from patent lack of jurisdiction. However, the Court disposed of the petition by directing the Magistrate to expedite the trial within six months and allowing the petitioner to seek removal as a party.

What did the court decide?

C.R.P. disposed of; Magistrate directed to dispose of D.V. No.5 of 2022 within six months; personal appearance not insisted upon if represented by counsel.

Ameenabeevi Vs Asbina Asrin — Domestic Violence | Madras HC (2022)

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C.R.P.(MD)No.405 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Dated: 01.12.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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C.R.P.(MD)No.405 of 2022 and CMP(MD) Nos.1803 and 1805 of 2022

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Ameenabeevi ... Petitioner

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Asbina Asrin ... Respondent

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PRAYER: Civil Revision Petition is filed under Section 227 of Civil Procedure Code, to call for the records and strike off the proceedings / petition in D.V.No.5 of 2022 on the file of the learned Judicial Magistrate No.I, Tirunelveli.

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For Petitioner : Mr.V.Malaiyendran

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

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C.R.P.(MD)No.405 of 2022

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O R D E R

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This Civil Revision Petition is filed against the proceedings initiated by the respondent herein in D.V.No.5 of 2022 before the Judicial Magistrate No.I, Tirunelveli . The petitioner herein is respondent in D.V.No.5 of 2022.

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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

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

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C.R.P.(MD)No.405 of 2022

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

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C.R.P.(MD)No.405 of 2022

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This Civil Revision Petition is filed challenging the proceedings initiated by the respondent under Section 12 of the Protection of Women from Domestic Violence Act and not filed on the ground of lack of jurisdiction. 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 petitioner is having any grievance that he has been unnecessarily added as party to the proceedings, it is open to him to file an application before the learned Magistrate to delete his name 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 petitioner is represented through a counsel, the learned Magistrate shall not insist on the personal appearance of the petitioner. However, the petitioner shall

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

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C.R.P.(MD)No.405 of 2022

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appear before the Court as and when his presence is required by the Court.

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(iii) The learned Magistrate is directed to dispose of D.V.No.5 of 2022 as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order.

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