Disposed

Udahayakumar v. Jayapraba

Madras HC3 Jan 2023CRP(MD)/2636/2022

Case brief

AI extract

What is this about?

High Court disposed of a Civil Revision Petition challenging a notice under Section 13 of the Domestic Violence Act. The Court held the petition non-maintainable as Article 227 requires lack of jurisdiction but granted relief directing the Magistrate not to insist on personal appearance if counsel is present and to dispose of the case within five months.

What did the court decide?

Directed Magistrate not to insist on personal appearance; disposed of D.V.C.No.4 of 2022 within five months; closed connected petitions.

Udahayakumar Vs Jayapraba — Domestic Violence | Madras HC (2023)

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CRP(MD)No.2636 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 03.01.2023

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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CRP(MD)No.2636 of 2022 and CMP(MD)Nos.12885 of 2022 & 16 of 2023

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1.Udayakumar

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2.Geetha ... Petitioners

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1.Jayapraba

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2.Sashil Aadhiya (Minor) Rep. by his mother / natural guardian, the first respondent

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3.Balamurugan ... Respondents

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Civil Revision Petition filed under Article 227 of the Constitution of India, against the complaint filed under Section 12 of the Protection of Women from the Domestic Violence Act, 2005, in D.V.O.P.No.4 of 2022 before the Judicial Magistrate Court, Paramakudi.

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

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For Petitioners : Mr.B.Arun

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CRP(MD)No.2636 of 2022

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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.O.P.No.4 of 2022 before the learned Judicial Magistrate, Paramakudi. The petitioners herein are respondents in D.V.O.P.No.4 of 2022.

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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

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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

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

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CRP(MD)No.2636 of 2022

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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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The Hon'ble Full Bench of this Court has also held that the

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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

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

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CRP(MD)No.2636 of 2022

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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 issued under Section 13 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 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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https://www.mhc.tn.gov.in/judis

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CRP(MD)No.2636 of 2022

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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.4 of 2022 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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