Disposed

Rajkumar v. Abinaya

Madras HC7 Mar 2024CRP(MD)/1230/2023

Case brief

AI extract

What is this about?

Respondents to a domestic violence complaint sought via Article 227 revision to strike off the DVC petition alleging bald allegations and jurisdictional error. Following Full Bench guidance that proceedings are civil but Article 227 may apply for jurisdictional error, the court found no manifest injustice and advised seeking deletion before the trial court.

What did the court decide?

Petition disposed with liberty to approach trial court for deletion of respondents' names or dispensing personal appearance; merits untouched; connected miscellaneous petitions closed.

Rajkumar Vs Abinaya — Domestic Violence | Madras HC (2024)

¶1

C.R.P.(MD)No.1230 of 2023

¶2

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

¶3

Dated: 19/02/2024

¶4

CORAM

¶5

The Hon'ble Mr.Justice G.ILANGOVAN

¶6

C.R.P(MD)No.1230 of 2023 and

¶7

CMP(MD)Nos.5955 and 6035 of 2023

¶8

1.Rajkumar

¶9

2.Jeyaraj

¶10

3.Thiruselvi

¶11

4.Ravikumar : Petitioners/

Respondents 1 to 4

Vs.

1.Abinaya

2.Minor Nekha

¶16

(Represented by her mother

¶17

and natural guardian as

¶18

the 2^nd respondent) : Respondents/Petitioners

¶19

PRAYER: - Civil Revision Petition has been filed under Article 227 of the Constitution of India, to call for the records relating to the impugned DVC No.4 of 2023 on the file of the Additional Mahila Court (Judicial Magistrate Level), Theni, Theni District and strike off the same as illegal and pass such further or other orders.

¶20

For Petitioners : Mr.B.Jeyakumar

¶21

For Respondents : Mr.K.Navanatharaja

¶22

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

¶23

1/16

¶24

C.R.P.(MD)No.1230 of 2023

¶25

This civil revision petition has been filed seeking to strike off the petition in DVC No.4 of 2023 on the file of the Additional Mahila Court (Judicial Magistrate Level), Theni, Theni District.

¶26

2.Heard both sides.

¶27

judgment reported in the case of Arul Danial Vs. Suganya

¶28

(2022(3)MWN (CR.)539(FB) :-

¶29

“7.The Division Bench, in P.Ganesan, supra, has categorically and correctly restated the legal position, in two places that the proceedings under the D.V. Act are civil in nature. For the sake of convenience, we are extracting those portions from P. Ganesan, supra.

¶30

nature.............

¶31

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

¶32

2/16

¶33

C.R.P.(MD)No.1230 of 2023

¶34

16 (c) We have already held that the proceedings under Chapter IV of the Domestic Violence Act are civil in nature..........”

¶35

8.We concur with the above view of Anand Venkatesh, J., as affirmed by the Division Bench in P.Ganesan, supra. However, after saying so, the Division Bench, in P.Ganesan, supra, found itself in disagreement with the opinion of Anand Venkatesh, J. that a petition under Section 482 Cr.P.C. to quash a D.V. proceedings is not maintainable and has given a contrary opinion which is as under:

¶36

“N.Anand Venkatesh, J. held that the

¶37

Magistrate while adjudicating Civil rights cannot be called Criminal Court. We do not agree with this view of the learned Judge, firstly because the Parliament intended to deliberately confer Jurisdiction on the Criminal Court. An appeal is also provided to the Court of Sessions and not to the District Judge. Secondly, the learned Judge relied upon a number of cases to hold that where the Magistrate is conferred power to grant reliefs of Civil nature he cannot be called to a ‘Criminal Court’. We find that

¶38

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

¶39

3/16

¶40

C.R.P.(MD)No.1230 of 2023

¶41

in all the Judgments referred by the learned Judge, the Courts have held that the Magistrate was not a Court when he was exercising Ministerial/Administrative functions and not a criminal Court when he was following the procedure stipulated under the Special Act which gave his power and not under Cr.P.C.. Therefore, in our view those Judgments cannot be relied upon to hold that the Magistrate is not a criminal Court while dealing with an Application under 12 of the Domestic Violence Act. Just as we found that the nature of reliefs would determine the character of the proceedings we find that the nature of the procedure adopted would determine the character of the Tribunal. There is no doubt that the Magistrate dealing with proceedings under Domestic Violence Act is a Criminal Court who has to follow the procedure under Cr.P.C., exception being provided under Section 28 (2) of the Act.” (emphasis supplied)

¶42

9.From a reading of the aforesaid, we are able to infer that albeit the fact that D.V. proceedings initiated on

¶43

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

¶44

4/16

¶45

C.R.P.(MD)No.1230 of 2023

¶46

an application under Section 12 are civil proceedings, the Magistrate is nonetheless a Criminal Court as the procedure he is required to follow is one under the Code of Criminal Procedure. To put it more precisely, according to the Division Bench, it is not the substantive law, but the procedural law that determines the character of the Court of the Magistrate. This is where, in our considered opinion, with due respect, the Division Bench appears to have fallen in error.”

¶47

4.Similarly regarding the appearance of the parties before the trial court, para (iv) may be extracted

¶48

herein:-

¶49

“iv.Personal appearance of the

¶50

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

¶51

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

¶52

5/16

¶53

C.R.P.(MD)No.1230 of 2023

¶54

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)”

¶55

5.In view of the above said directions, the parties are at liberty to approach the concerned trial court itself for dispensing their appearance, of course with the above said limitation.

¶56

6.In the light of the above said statement of law, now we will go to the another aspect.

¶57

7.As stated in the Full Court Judgement, even though, petition under section 482 of Cr.P.C will not lie, Article 227 of the Constitution of India can be invoked on a specific plea and circumstances.

¶58

8.Let me extract the relevant portion:-

¶59

“xiv.A petition under Article 227 of the Constitution may still be maintainable if it is shown that the

¶60

proceedings before the Magistrate suffer

¶61

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

¶62

6/16

¶63

C.R.P.(MD)No.1230 of 2023

¶64

from a patent lack of jurisdiction. The

¶65

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,

¶66

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.”

¶67

9.In the light of the statement of law, it is submitted that now this civil revision petition has been filed by the petitioners.

¶68

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

¶69

7/16

¶70

C.R.P.(MD)No.1230 of 2023

¶71

10.Now we shall examine as to whether the

¶72

petitioners satisfied the requirement of law namely;-

¶73

(i)whether the cognizance taken by the Judicial Magistrate is illegal, because of the patent lack of jurisdiction;

¶74

(ii)Whether there is any error in jurisdiction; and

¶75

(iii)Whether there is any manifest or substantial injustice.

¶76

11.Now what is meant by jurisdictional error has also been elaborately discussed in the judgment. Let me extract the relevant portions:-

¶77

“25.At this juncture, it is

¶78

necessary to notice that the word

¶79

“jurisdiction” relates to the power of

¶80

the Court to decide a class or classes

¶81

of cases. The import of the expression

¶82

has been considered by the Supreme Court

¶83

in Nusli Neville Wadia Vs. Ivory

¶84

Properties, 2020(6)SCC 557 , wherein, it

¶85

was observed as under:-

¶86

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

¶87

8/16

¶88

C.R.P.(MD)No.1230 of 2023

¶89

“The word “jurisdiction” is derived

¶90

from Latin words “juris” and “dico”, meaning “I speak by the law” and does not relate to rights of parties as between each other but to the power of the court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the

¶91

authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court having control over subject-matter which comes within classification limits of the law under

¶92

which court has been established. It

¶93

should have control over the parties' litigant, control over the parties' territory, it may also relate to pecuniary as well as the nature of the class of cases. Jurisdiction is

¶94

generally understood as the authority to decide, render a judgment, inquire into

¶95

the facts, to apply the law, and to pronounce a judgment. When there is the want of general power to act, the court

¶96

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

¶97

9/16

¶98

C.R.P.(MD)No.1230 of 2023

¶99

has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment,

¶100

and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of nullity. It has co-relation with the constitutional and statutory power of tribunal or court to hear and determine. It means the power or capacity fundamentally to entertain, hear, and determine.” (emphasis supplied)

¶101

26.In view of the above, the power

¶102

of the Magistrate to entertain and decide an Application under Section 12 and grant one or more reliefs under the D.V. Act is an aspect of his jurisdiction. It is settled law that jurisdiction is an issue that belongs to the realm of substantive law. Procedural law, on the other hand, prescribes the mode and manner in which such jurisdiction is to be exercised. A

¶103

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

¶104

10/16

¶105

C.R.P.(MD)No.1230 of 2023

¶106

character of the Court is an essential aspect of its substantive jurisdiction,

¶107

and would depend on the nature or

¶108

subject matter of the case before it.”

¶109

12.So absolutely, the petitioners cannot say that there is inherent lack of jurisdiction in view of the above said statement of law.

¶110

13.Now we will examine as to whether the other

¶111

ingredients are attracted namely whether there is any manifest or substantial injustice occasioned to the petitioners.

¶112

14.In the light of the above said ingredients, we will examine the factual aspects to answer this point.

¶113

The complaint is filed by the 1st respondent with

¶114

the following allegations :-

¶115

The marriage between the herself and the husband took place on 19/05/2016 at Theni as per their customary rites. At the time of marriage, the parents of the wife provided 100 sovereigns of gold jewels and other household articles. Out of the wedlock, a female child

¶116

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

¶117

11/16

¶118

C.R.P.(MD)No.1230 of 2023

¶119

born on 27/04/2018. After the marriage, they started living in the matrimonial home as joint family. From the date of marriage, the husband and his family members started ill-treating, harassing and assaulting her by demanding more dowry stating that they require money to built a hospital for the husband. After the birth of the female child, the husband along with his family members insulted the wife for giving birth to female child, instead of male child. Now, she is living separately along with the child in her parental home. In the meantime, the husband filed HMOP No.98 of 2021 on the file of the Family Court, Theni, for restitution of conjugal rights. Even thereafter, the husband demanded additional dowry and refused to take back the wife and child to the matrimonial home. So, a complaint was given before the All Women Police Station, Theni, which was registered in Crime No.69 of 2021. After the complaint, the husband has withdrawn the HMOP No.98 of 2021 filed by him.

¶120

16.This civil revision petition is filed by the petitioners, who are the respondents 1 to 5 in the original petition stating that only bald allegations are made against them. The wife never behaved as a dutiful wife to the husband. The in-laws are wrongly roped in and

¶121

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

¶122

12/16

¶123

C.R.P.(MD)No.1230 of 2023

¶124

the ingredients mentioned in the complaint are also not attracted against them. Even the advise made by the inlaws to the wife to go to the matrimonial home, was not taken effectively.

¶125

17.The next question, which arises for consideration is whether the grievance expressed by the petitioners will cause or have occasioned manifest injustice.

¶126

18.What is meant by manifest injustice is a term, which is not defined in terms anywhere. We will fall back the definition 'manifest injustice ' made in Black's Law Dictionary runs like this:-

¶127

“ manifest injustice .A direct, obvious,

¶128

and observable error in a trial court, such as a defendant's guilty plea that is involuntary

¶129

or is based on a plea agreement that the prosecution has rescinded.”

¶130

19.In the light of the above said definition, when

¶131

we examine the factual aspects, as mentioned above, now again, it is a clear answer and remedy suggested to the people like the petitioners in the light of the decision rendered in Dr.P.Pathmanathan Vs. Monica [(2021(2)CTC

¶132

13/16

¶133

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

¶134

C.R.P.(MD)No.1230 of 2023

¶135

57]. So the petitioners can very well redress their grievance before the trial court itself by filing appropriate application for deletion as the case may be.

¶136

20.Similarly for the request of dispensing with the personal appearance, the Co-ordinate Bench of this court in Velumani and another Vs. Pavithra and another

¶137

(CRP(MD)No.2568 of 2023, dated 10/10/2023) has observed like this.

¶138

“12.Regarding the petitioner's prayer

¶139

for dispensing with their personal appearance, it is necessary to refer the following direction in Arul Daniel's case above referred.

¶140

“76....

¶141

iv.Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. From 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

¶142

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

¶143

14/16

¶144

C.R.P.(MD)No.1230 of 2023

¶145

V. State of West Bengal (2009 SCC OnLine Cal 1903)”.

¶146