Dismissed

Mohamed Jakkaria v. Thaveer Shifa

Madras HC6 Nov 2023CRP(MD)/2875/2023

Case brief

AI extract

What is this about?

The Madras High Court dismissed a civil revision petition challenging the issuance of summons to all respondents in a Domestic Violence Act complaint. The court held that mechanical issuance does not establish patent lack of jurisdiction under Article 227, directing parties to raise maintainability before the Magistrate instead.

What did the court decide?

The Civil Revision Petition is dismissed; connected Miscellaneous Petitions are closed; no costs.

Mohamed Jakkaria Vs Thaveer Shifa — Matrimonial and Divorce | Madras HC (2023)

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C.R.P.(MD)No.2875 of 2023

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 06.11.2023

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CORAM:

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THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

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C.R.P.(MD)No.2875 of 2023 and C.M.P.(MD)Nos.14967 and 15057 of 2023

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1.Mohamed Jakkaria

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2.Settu @ Kattuvarsha

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3.Mohamedha Bevi @ kani 4.Ajeema 5.Ammer Kani : Petitioners/Respondents 2 to 6 Vs. 1.Thaveer Shifa : 1^st Respondent/Petitioner 2.Mohamed Iqbal : 2^nd Respondent/1^st Respondent

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Prayer : This Civil Revision Petition filed under Article 227 of the Constitution of India, to strike of the compliant, dated 13.07.2023 in D.V.C.No.48 of 2023 on the file of the learned Additional Mahila Court, Dindigul, in so far as the petitioners are concerned.

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For Petitioners : Mr.S.Sankar

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C.R.P.(MD)No.2875 of 2023

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ORDER

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The Civil Revision Petition has been filed, invoking Article 227 of the Constitution of India, seeking orders to strike of the petition in D.V.C.No.48 of 2023 on the file of the learned Additional Mahila Court, Dindigul.

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The first respondent has filed a petition under Sections 18, 19, 20 and 22 of the Domestic Violence Act against her husband and in-laws. The learned Magistrate, after taking the petition on file in D.V.C.No. 48 of 2023, has issued summons to the petitioners to appear before the said Court.

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Admittedly, the first petitioner is the brother-in-law, second petitioner is the father-in-law, third petitioner is the mother-in-law, fourth petitioner is the sister-in-law of the first respondent and the second respondent is the husband of the first respondent and the fifth petitioner is the aunt of the second respondent.

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The main complaint of the petitioners is that the petitioners, who

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have no connection whatever with the disputes raised by the first respondent, have been implicated purposely and wantonly with an intention to harass them and to make unlawful gain if possible, that the first respondent has not shown any material that she was subjected to domestic violence by the petitioners and that therefore, the very petition filed by the respondents is liable to be quashed.

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The learned counsel appearing for the petitioners would submit that as per the judgment of the Hon'ble Full Bench of this Court in Arul Daniel and others Vs. Suganya and others reported in 2023 Cri. LJ 339, the Magistrate has no power or jurisdiction to issue any summons to a respondent(s) therein under Section 61 Cr.P.C. and despite specific directions of the Hon'ble Full Bench to issue notice for the appearance in Form VII appended to the D.V. Rules, 2006 and in the manner prescribed under Section 13 of the Act and Rule 12(2) of the D.V. Rules, the learned Magistrate has acted in total violation of the directions of this Court and that therefore, the issuance of the summons warrants interference of this Court.

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C.R.P.(MD)No.2875 of 2023

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No doubt, the Hon'ble Full Bench of this Court, while answering the reference, has specifically held that Section 482 of Code of Criminal Procedure has no application for challenging a proceedings under Section 12 of the Domestic Violence Act, but Article 227 of the Constitution of India can be invoked and it is necessary to refer the following passages

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hereunder:-

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“40 The next question is whether the proceedings under Chapter IV of the D.V. Act can be assailed by way of a petition under Article 227 of the Constitution. Indubitably, the power of judicial review under the said provision is a part of the basic structure of the Constitution. After the decision of the Constitution Bench in L.Chandra Kumar v Union of India 27 , it is no longer open to doubt that the power of judicial review under Articles 226/227 cannot be taken away even by a constitutional amendment, let alone by a statute. Nevertheless, the existence of power is one thing and the exercise of power is quite another. Though the power of superintendence under Article 227 over the proceedings of the Magistrate under the D.V. Act exists, its exercise would, no doubt, be conditioned on certain very salutary

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principles one of which is that a High Court will not exercise its power of superintendence if there exists an efficacious alternative remedy.

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41. As has been adverted to, supra, the legislature has very thoughtfully provided an appellate remedy, under Section 31 of the D.V. Act, before the Court of Session against an order of the Magistrate. The existence of an appellate remedy would almost always be a “near total bar” for exercising power under Article 227, as has been pointed out by the Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society 28 . An exception to the aforesaid rule is where the proceedings before the Court below are patently lacking in jurisdiction. An illustrative instance of such a case is where a Magistrate, who does not possess jurisdiction under Section 27, entertains an application under the D.V. Act or where the reliefs sought are outside the scope of the Act, etc. Such instances would, no doubt, be few and far between. We only reiterate that the policy of the D.V. Act is expedition, which cannot be achieved if all and sundry orders are called into question before the High Court. This aspect must necessarily weigh with the learned single judges

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C.R.P.(MD)No.2875 of 2023

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while exercising jurisdiction under Article 227 in a challenge to proceedings under the D.V. Act.”

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The Hon'ble Full Bench, while summarizing their conclusions,

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has specifically observed that a petition under Article 227 of the Constitution is maintainable on a limited ground of patent lack of jurisdiction and except on the limited ground indicated, jurisdiction under Article 227 of the Constitution will not be exercised, as a measure of selfimposed restriction, by-passing the statutory remedies under the D.V. Act, in the light of the decision of the Supreme Court in Virudhunagar Hindu

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Nadargal Dharma Paribalana Sabai and others Vs. Tuticorin Educational Society and others reported in (2019) 9 SCC 538 . In the present case, it is not the case of the petitioners that there is patent lacking of jurisdiction.

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It is necessary to refer the direction passed by the learned Judge of this Court in Dr.P.Pathmanathan Vs. V.Monica reported in 2021 1 MLJ (Cri) 311, which was reiterated by the Hon'ble Full Bench in Arul Daniel's case above referred,

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“76 Before bringing the curtains down, for the sake of convenience and clarity, we reiterate the following

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directions passed by the learned single in Pathmanathan, supra, which shall now govern the disposal of applications under the D.V. Act:

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x. The Magistrates must take note that the practice of mechanically issuing notices to the respondents named in the application has been deprecated by this Court nearly a decade ago in Vijaya Baskar (cited supra). Precedents are meant to be followed and not forgotten, and the Magistrates would, therefore, do well to examine the applications at the threshold and confine the inquiry only to those persons whose presence before it is proper and necessary for the grant of reliefs under Chapter IV of the D.V. Act.”

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Despite specific directions of the Hon'ble Supreme Court as well

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as of this Court, the practise of taking the petition filed under the Domestic Violence Act against all the respondents therein mechanically by the Judicial Magistrates is on rise. Since the petitioner, who filed the petition under the Domestic Violence Act, has been impleading not only the parents of her husband, but all her in-laws, who were residing at far off

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C.R.P.(MD)No.2875 of 2023

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place and in some cases, relatives and friends of her husband with sole intention to compel her husband to come to terms and to harass the relatives of her husband and in such a situation, the Magistrates are duty bound to consider the petition at the initial stage itself and take the petition on file against only those persons whose presence before it is proper and necessary for granting the reliefs under Chapter IV of the Domestic Violence Act. If a Magistrate issues notice to all the respondents without properly considering the application filed under the Domestic Violence Act, that by itself is not a ground to approach this Court invoking Article 227 of the Constitution of India for quashing or striking the petition filed under the Domestic Violence Act.

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It is necessary to refer the direction No.vii passed by the learned

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Judge in Pathmanathan's case , which was reiterated by the Hon'ble Full Bench,

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“76. .....

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vii. As there is no issuance of process as contemplated under Section 204, Cr.P.C. in a proceeding under the D.V. Act, the principle laid down in Adalat Prasad v. Rooplal Jindal ((2004) 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will

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C.R.P.(MD)No.2875 of 2023

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not apply to a proceeding under the D.V. Act. Consequently, it would be open to an aggrieved respondent(s) to approach the Magistrate and raise the issue of maintainability and other preliminary issues. Issues like the existence of a shared household/domestic relationship etc., which form the jurisdictional basis for entertaining an application under Section 12, can be determined as a preliminary issue, in appropriate cases. Any person aggrieved by such an order may also take recourse to an appeal under Section 29 of the D.V. Act for effective redress (See V.K. Vijayalekshmi Amma v. Bindu V., (2010) 87 AIC 367). This would stem the deluge of petitions challenging the maintainability of an application under Section 12 of the D.V. Act, at the threshold before this Court under Article 227 of the Constitution.”

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Considering the above, the petitioners are entitled to approach the concerned Magistrate Court itself and raise the issue of maintainability and other preliminary issues and if such an application is filed, the learned Magistrate shall decide the same as per the decision of the Hon'ble Supreme Court in Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari and another reported in (2016) 11 SCC 774.

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On considering the entire facts and circumstances, this Court is of the clear view that the petitioners have not shown any legal ground or reason to quash the complaint and hence, this Court concludes that the Civil Revision is devoid of merits and the same is liable to be dismissed.

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Regarding the petitioners' prayer for dispensing with their personal appearance, it is necessary to refer the following direction in

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Arul Daniel's case above referred,

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“76. .....

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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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The Hon'ble Full Bench has reiterated the legal position that the proceedings under the Domestic Violence Act are civil in nature and as such, the respondents in the Domestic Violence complaint cannot be considered as accused and there is absolutely no need or necessity for them to appear for each and every hearing before the learned Magistrate. Hence, the learned Judicial Magistrate is directed not to insist the appearance of the petitioners/respondents on every hearings, but at the same time, the learned Magistrate is at liberty to direct the petitioners/ respondents to appear if their appearance is necessary.

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With the above observation and direction, this Civil Revision Petition is disposed of. Consequently, connected Miscellaneous Petitions are closed. No costs.

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06.11.2023

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NCC :yes/No Index :yes/No Internet:yes/No das

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C.R.P.(MD)No.2875 of 2023

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K.MURALI SHANKAR,J.

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das