Husband sought quashing of a domestic violence complaint under Article 227. Relying on the Full Bench decision holding Article 227 maintainable only for patent lack of jurisdiction, the Court dismissed the revision, directing him to raise preliminary issues before the Magistrate and restraining insistence on personal appearance at every hearing.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P.(MD)No.242 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.02.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(MD)No.242 of 2024 and C.M.P.(MD)Nos.1083 and 1084 of 2024
Pitchaikani
: Petitioner/Respondent
Vs.
Parithakani : Respondent/Complainant
Prayer : This Civil Revision Petition filed under Article 227 of the Constitution of India, to call for the records relating to the proceedings of the complaint in D.V.C.No.160 of 2023 on the file of the learned Judicial Magistrate, Additional Mahila Court, Madurai and strike off the same.
For Petitioner : Mr.S.Arivalagan
ORDER
The Civil Revision Petition has been filed, invoking Article 227 of
the Constitution of India, seeking orders to call for the records in
C.R.P.(MD)No.242 of 2024
D.V.C.No.160 of 2023 pending on the file of the learned Judicial Magistrate, Additional Mahila Court, Madurai and strike off the same.
and others Vs. Suganya and others reported in 2023 Cri. LJ 339, while answering the reference, has specifically held that Section 482 of Code of
C.R.P.(MD)No.242 of 2024
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 hereunder:-
“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 principles one of which is that a High Court will not exercise its power of superintendence if there exists an efficacious alternative remedy.
C.R.P.(MD)No.242 of 2024
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 while exercising jurisdiction under Article 227 in a challenge to proceedings under the D.V. Act.”
C.R.P.(MD)No.242 of 2024
“76. Before bringing the curtains down, for the sake of convenience and clarity, we reiterate the following
C.R.P.(MD)No.242 of 2024
directions passed by the learned single in Pathmanathan, supra, which shall now govern the disposal of applications under the D.V. Act:
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.”
Judge in Pathmanathan's case , which was reiterated by the Hon'ble Full Bench,
“76. .....
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
C.R.P.(MD)No.242 of 2024
Jindal ((2004) 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will 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.”
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.
C.R.P.(MD)No.242 of 2024
“76. .....
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).”
C.R.P.(MD)No.242 of 2024
05.02.2024
NCC :yes/No Index :yes/No Internet:yes/No das
C.R.P.(MD)No.242 of 2024
K.MURALI SHANKAR,J.
das
To
1.The Judicial Magistrate, Additional Mahila Court, Madurai. 2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
Order made in C.R.P.(MD)No.242 of 2024 and C.M.P.(MD)Nos.1083 and 1084 of 2024
Dated : 05.02.2024
2 issues framed by the court
Whether an application under Section 12 of the Domestic Violence Act can be quashed under Article 227 absent patent lack of jurisdiction.
Whether the petitioner must personally appear at every hearing in the domestic violence proceedings.
Colour shows how this judgement treated each authority
Arul Daniel and others Vs. Suganya and othersRelied on¶4
2023 Cri. LJ 339 · Who else cites this
Dr.P.Pathmanathan Vs. V.MonicaRelied on¶6
2021 1 MLJ (Cri) 311
Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari and anotherApplied¶8
(2016) 11 SCC 774 · Who else cites this
2 provisions across 2 enactments
Pitchaikani
Parithakani
K.Murali Shankar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
