Disposed

Kuppusamy v. Thulasi Manickam

Madras HC4 Apr 2024CRP(MD)/788/2024

Case brief

AI extract

What is this about?

Husband sought to strike off DVOP proceedings against him under Article 227. The court held no patent lack of jurisdiction or manifest injustice was shown; DV Act proceedings are maintainable and grievances can be raised before the trial court. Revision disposed of without touching merits, with liberty.

What did the court decide?

Revision disposed of without costs, with liberty to file appropriate application for deletion/dispensing appearance before the trial court; connected MPs closed.

Kuppusamy Vs Thulasi Manickam — Domestic Violence | Madras HC (2024)

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C.R.P.(MD)No.788 of 2024

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Date of Reserved : 28/03/2024 Date of Pronounced : 04/04/2024

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CORAM

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The Hon'ble Mr.Justice G.ILANGOVAN

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C.R.P(MD)No.788 of 2024

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and

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CMP(MD)Nos.4377 an 4378 of 2024

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Kuppusamy : Petitioner/1^st Respondent

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Vs.

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1.Thulasi Manickam : 1^st Respondent/Petitioner

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2.Selva Lakshmi

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(The 2^nd respondent is

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not a necessary party

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in the CRP. Hence, she

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is given up) : 2^nd Respondent/2^nd Respondent

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PRAYER: -Civil Revision Petition has been filed under Article 227 of the Constitution of India, to strike off the proceedings in DVOP No.8 of 2021 on the file of the Judicial Magistrate, Palani in so far as the petitioner is concerned and pass such further or other orders.

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For Petitioner : Mr.D.Venkatesh

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O R D E R

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This civil revision petition has been filed seeking

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to strike off the proceedings in DVOP No.8 of 2021 on the file of the Judicial Magistrate, Palani in so far as the petitioner is concerned.

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2.Heard the learned counsel appearing for the petitioner.

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3.Let me extract the relevant portion of the

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judgment reported in the case of Arul Danial Vs. Suganya (2022(3)MWN (CR.)539(FB) :-

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“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.

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“15 (o) To sum up: (i) As we have already held that the proceedings under the Domestic Violence Act are civil in

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

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

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8.We concur with the above view of Anand Venkatesh, J., as affirmed by the Division Bench in P.Ganesan, supra.

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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:

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“N.Anand Venkatesh, J. held that the 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 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

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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

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(2) of the Act.” (emphasis supplied)

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

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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.”

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4.Similarly regarding the appearance of the parties

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before the trial court, para (iv) may be extracted herein:-

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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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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.

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

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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.

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8.Let me extract the relevant portion:-

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

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proceedings before the Magistrate suffer from a patent lack of jurisdiction. The

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jurisdiction under Article 227 is one of superintendence and is visitorial in

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nature and will not be exercised unless

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there exists a clear jurisdictional error and that manifest or substantial

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injustice would be caused if the power

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

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10.Now we shall examine as to whether the petitioner satisfied the requirement of law namely;-

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

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

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

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

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“25.At this juncture, it is

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necessary to notice that the word “jurisdiction” relates to the power of the Court to decide a class or classes of cases. The import of the expression has been considered by the Supreme Court

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in Nusli Neville Wadia Vs. Ivory Properties, 2020(6)SCC 557 , wherein, it

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was observed as under:-

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“The word “jurisdiction” is derived from Latin words “juris” and “dico”,

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meaning “I speak by the law” and does not relate to rights of parties as

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between each other but to the power of the court. Jurisdiction relates to a

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class of cases to which a particular

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case belongs. Jurisdiction is the

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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 which court has been established. It 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

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

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the facts, to apply the law, and to pronounce a judgment. When there is the want of general power to act, the court has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of

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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)

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26.In view of the above, the power 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 character of the Court is an essential aspect of its substantive jurisdiction, and would depend on the nature or subject matter of the case before it.

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

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13.Now we will examine as to whether the other

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

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

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15.The complaint was given by the 1^st respondent herein against the petitioner before the Social Welfare Officer/Protection Officer, Dindigul stating that the marriage between herself and the husband took place in 1986. A female child was born to them. Now she also got married. They constructed a house in Palani out of her own money. The husband's sister used to visit the house frequently. At her instigation, the husband started illtreating her and planned to usurp the property. She was continuously harassed, abused to leave the matrimonial home. So, she left the matrimonial home and lodged a complaint before the Palani Police Station on 24/12/2020.

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It was enquired in CSR No.515 of 2020. The complainant was enquired. And the domestic incident report was filed by the Protection Welfare Officer, Dindigul before the Judicial Magistrate, Palani. It was taken cognizance in DVOP No.8 of 2021.

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16.Seeking quashment of the same, the husband filed this petition on the ground that he already filed HMOP No.35 of 2021 on the ground of cruelty before the Sub Court, Palani. Now the petitioner is aged about 60 years and the first respondent is 58 and in view of the order passed in Crl.OP(MD)No.20245 of 2013, dated 30/10/2014, the petition is liable to be quashed.

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17.Heard the petitioner. On the side of the

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petitioner, the order passed in Crl.OP(MD)No.20245 of 2023 is not placed before this court. Whether it is a matter between the petitioner and the first respondent is not clear on record. More-over, it is also seen that divorce proceedings are initiated by the petitioner in HMOP No.35 of 2021. That matter is still pending. It has to be enquired to its logical conclusion. Absolutely, no ground is made out in this petition, except stating that the complaint is filed only subsequent to the proceedings in HMOP No.35 of 2021. So, the petitioner has not satisfied the requirement of law as set out in Arul Danial's case.

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18.The second question, which arises for

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consideration is whether the grievance expressed by the petitioner will cause or have occasioned manifest injustice.

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19.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:-

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“ manifest injustice .A direct, obvious,

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and observable error in a trial court, such as

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a defendant's guilty plea that is involuntary

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or is based on a plea agreement that the

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prosecution has rescinded.”

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

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

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

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

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“12.Regarding the petitioner's prayer for dispensing with their personal appearance, it is necessary to refer the following direction in 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. 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 V. State of West Bengal (2009 SCC OnLine Cal 1903)”.

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22.The same may be followed by the petitioner as well as the trial court.

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23.So this civil revision petition deserves no consideration at all, of course with the above said liberty.

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24.With the above said liberty, this civil revision petition stands disposed of without touching upon the merits of the matter. No costs. Consequently connected Miscellaneous Petitions are closed.

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04/04/2024

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Index:Yes/No Internet:Yes/No er To,

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1.The Judicial Magistrate, Palani, Dindigul District.

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2.The Section Officer, ER/VR Section, Madurai Bench of Madras High Court, Madurai.

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