Disposed

I. Idhayakamalesh, v. T. Jaberlin Jeniha

Madras HC2 Feb 2023CRP(MD)/245/2023

Case brief

AI extract

What is this about?

The Madurai Bench of Madras High Court disposed of a Civil Revision Petition under Article 227 challenging domestic violence proceedings. Noting the appeal bar under Section 29, the Court held the petition unmaintable but directed the magistrate not to insist on personal appearance if counsel is present and to expedite disposal.

What did the court decide?

Civil Revision Petition disposed; Magistrate directed not to insist on petitioner's personal appearance if represented by counsel; disposal of underlying matter directed within six months.

I. Idhayakamalesh, Vs T. Jaberlin Jeniha — Domestic Violence | Madras HC (2023)

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CRP(PD)(MD)No.245 of 2023

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 02.02.2023

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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CRP(PD)(MD)No.245 of 2023 and CMP(MD)No.1164 of 2023

I.Idhayakamalesh

... Petitioner

versus

T.Jaberlin Jeniha

... Respondent

Civil Revision Petition filed under Article 227 of the Constitution of India, to call for the records in connection with a case in D.V.C.No. 22 of 2022 pending on the file of the Judicial Magistrate at Padmanabhapuram, Kanniyakumari District and strike off the same.

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For Petitioner : Mr.V.Maduraiveeran

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ORDER

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This Civil Revision Petition is filed against the proceedings initiated by the respondent herein in D.V.C.No.22 of 2022 before the learned Judicial Magistrate at Padmanabhapuram, Kanniyakumari District. The petitioner is the husband of the respondent.

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

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CRP(PD)(MD)No.245 of 2023

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The Hon'ble Full Bench of this Court, in the reference made in

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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.245 of 2023

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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

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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

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

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CRP(PD)(MD)No.245 of 2023

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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 represented through a counsel, the learned Magistrate shall not insist on the personal appearance of the petitioner. However, the petitioner shall appear before the Court as and when his presence is required by the Court.

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(ii) The learned Magistrate is directed to dispose of D.V.C.No.22 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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