Madras High Court
Sivarampriya vs M.Y.Jeyalakshmi on 19 June, 2023
C.R.P.(MD) No.372 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.06.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD) No.372 of 2023
and
C.M.P.(MD) No.1819 of 2023
Sivarampriya ... Petitioner
Vs.
M.Y.Jeyalakshmi ... Respondent
Civil Revision Petition filed under Article 227 of the Constitution
of India, to struck down the proceedings in D.V.C.No.7 of 2021 pending
on the file of the Judicial Magistrate Court, Devakottai.
For Petitioner : M/s.S.Banumathy
For Respondent : Mr.V.R.Shanmuganathan
*******
ORDER
This Civil Revision Petition has been filed to strike down the
proceedings in D.V.C.No.7 of 2021 pending on the file of the Judicial
Magistrate Court, Devakottai.
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
2. The petitioner is the fourth respondent in D.V.C.No.7 of 2021, on
the file of the Judicial Magistrate Court, Devakottai, filed by the
respondent herein.
3. The respondent herein is married to the petitioner's brother
Annamalai. The marriage is said to have taken place on 01.09.2019. In
the D.V.C. proceedings initiated before the Judicial Magistrate Court,
Devakottai, the respondent herein made certain allegations against the
petitioner and her in-laws. The relevant portion of the allegation in the
D.V.C. reads as under:-
''7. .... 2 Kjy; 4 vjpHkDjhHfs;
kDjhuH jq;Ftjw;F xU miw $l
nfhLf;fhky; tPl;bd; Kfg;gpy; cs;s
jpz;izapy; jq;fp nfhs;s nrhy;yp
nfhLikfis nra;Js;sdH. mjdhy; kDjhuH
xU khjk; 1k; vjpHkDjhuH tPl;by;
jq;fp ,Ue;J f\;lj;ij mDgtpj;Js;shH. 2
Kjy; 4 vjpHkDjhuHfs; kDjhuH czT
jahH nra;a $l tplhky; njhlHe;J njhe;juT
nra;Js;sdH. mjdhy; kDjhuUf;F cly;epiy
ghjpf;fg;gl;L jdJ jhahH tPl;bw;F 06.02.2021k;
Njjp te;Js;shH. 1k; vjpHkDjhuH kDjhuhpd;
Whatsapp> Facebook, Lindon midj;J
nraypfisAk; Block nra;J itj;Js;shH.
mjdhy; kDjhuH 1k; vjpHkDjhuiu njhlHG
nfhs;s Kbahky; ,Ue;J tUfpwhH.''
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
4. The specific case of the petitioner is that she is married to one
Palaniappan, who is the resident of East Tambarama, Chennai. A copy of
the Aadhar Card has been filed along with the typed set of papers.
5. It is submitted that the complaint against the petitioner as also
her parents are based on the false averments. In any event, the petitioner
is not concerned with the domestic dispute between the respondent and
her brother Annamalai.
6. Heard the learned counsel for the petitioner and the learned
counsel for the respondent.
7. The petitioner is the sister-in-law of the respondent herein. The
petitioner's brother Annamalai married to the respondent on 01.01.2019 in
Devakottai. On 05.09.2019, the respondent's husband (the petitioner's
brother) Annamalai had left for Singapore in connection with work.
Thereafter, the respondent's husband (the petitioner's brother) Annamalai
took the respondent to Singapore for a short honeymoon on 13.09.2019.
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
It appears that the respondent returned to India on 12.03.2020 and directly
went back to his parental house in Coimbatore as her mother was ailing.
8. The respondent's husband (the petitioner's brother) Annamalai
appears to have come back to India later on 21.11.2020 and directly went
to his parental home in Karaikudi. It is the case of the petitioner that the
petitioner was living in London, on returning from London to India she
has settled in Adaiyar, Chennai and had visited her mother's house in
Karaikudi as her mother was suffering from certain ailments.
9. At this stage, a compromise is said to have been arrived between
the Panchyatars and the family members of the respondent's husband (the
petitioner's brother) Annamalai on 24.12.2020 that the respondent's
husband (the petitioner's brother) Annamalai should bring the respondent
to his parental house. It appears that the respondent's husband (the
petitioner's brother) Annamalai however did not bring the respondent to
his parental house. Meanwhile, the respondent's husband (the petitioner's
brother) Annamalai left for Singapore on 09.01.2021 without bringing the
respondent to his parental house contrary to the compromise.
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
10. Thereafter, the respondent appears to have come to her in-laws
house on her own volition. The petitioner was at that time at her mother's
house. The only allegation against the petitioner is that the petitioner
along with her parents (in-laws of the respondent) refused to allow the
accommodation to the respondent.
11. The Hon'ble Full Bench of the Madras High Court (Principal
Seat of this Court), Chennai in a batch of Criminal Original Petitions in
Crl.O.P.Sr.Nos.31852 of 2022 etc. in the case of Arul Daniel Vs.
Suganya and other cases., by its Judgment dated 17.11.2022, has laid
down certain guidelines in Paragraph No.76 which reads as under:-
76. Before bringing the curtains down, for the
sake of convenience and clarity, we reiterate the
following directions passed by the learned single judge
in Pathmanathan, supra, which shall now govern the
disposal of applications under the D.V. Act:
“i. An application under Section 12 of
the D.V. Act, is not a complaint under Section
2(d) of the Cr.P.C. Consequently, the
procedure set out in Section 190(1)(a) & 200
to 204, Cr.P.C. as regards cases instituted on a
complaint has no application to a proceeding
under the D.V. Act. The Magistrate cannot,
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
therefore, treat an application under the D.V.
Act as though it is a complaint case under the
Cr.P.C.
ii. An application under Section 12 of
the Act shall be as set out in Form II of the
D.V. Rules, 2006, or as nearly as possible
thereto. In case interim ex-parte orders are
sought for by the aggrieved person under
Section 23(2) of the Act, an affidavit, as
contemplated under Form III, shall be sworn
to.
iii. The Magistrate shall not issue a
summon under Section 61, Cr.P.C. to a
respondent(s) in a proceeding under Chapter
IV of the D.V. Act. Instead, the Magistrate
shall issue a notice for appearance which shall
be as set out in Form VII appended to the
D.V. Rules, 2006. Service of such notice shall
be in the manner prescribed under Section 13
of the Act and Rule 12(2) of the D.V. Rules,
and shall be accompanied by a copy of the
petition and affidavit, if any.
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).
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
v. If the respondent(s) does not appear
either in person or through a counsel in
answer to a notice under Section 13, the
Magistrate may proceed to determine the
application ex parte.
vi. It is not mandatory for the
Magistrate to issue notices to all parties
arrayed as respondents in an application under
Section 12 of the Act. As pointed out by this
Court in Vijaya Baskar (cited supra), there
should be some application of mind on the
part of the Magistrate in deciding the
respondents upon whom notices should be
issued. In all cases involving relatives and
other third parties to the matrimonial
relationship, the Magistrate must set out
reasons that have impelled them to issue
notice to such parties. To a large extent, this
would curtail the pernicious practice of roping
in all and sundry into the proceedings before
the Magistrate.
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 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,
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
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.
viii. Similarly, any party aggrieved may
also take recourse to Section 25 which
expressly authorises the Magistrate to alter,
modify or revoke any order under the Act
upon showing change of circumstances.
ix. In Kunapareddy (cited supra), the
Hon'ble Supreme Court upheld the order of a
Magistrate purportedly exercising powers
under Order VI, Rule 17 of The Civil
Procedure Code, 1908 (hereinafter referred to
as “C.P.C.”), to permit the amendment of an
application under Section 12 of the D.V. Act.
Taking a cue therefrom, it would be open to
any of the respondent(s), at any stage of the
proceeding, to apply to the Magistrate to have
their names deleted from the array of
respondents if they have been improperly
joined as parties. For this purpose, the
Magistrate can draw sustenance from the
power under Order I Rule 10(2) of the C.P.C.
A judicious use of this power would ensure
that the proceedings under the D.V. Act do
not generate into a weapon of harassment and
would prevent the process of Court from
being abused by joining all and sundry as
parties to the lis.
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
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.
xi. In Satish Chandra Ahuja (cited
supra), the Hon'ble Supreme Court has
pointed out the importance of the enabling
provisions under Section 26 of the D.V. Act
to avoid multiplicity of proceedings. Hence,
the reliefs under Chapter IV of the D.V. Act
can also be claimed in a pending proceeding
before a civil, criminal or family court as a
counter claim.
xii. While recording evidence, the
Magistrate may resort to chief examination of
the witnesses to be furnished by affidavit (See
Lakshman v. Sangeetha, (2009) 3 MWN
(Cri) 257. The Magistrate shall generally
follow the procedure set out in Section 254,
Cr.P.C. while recording evidence.
xiii. Section 28(2) of the Act is an
enabling provision permitting the Magistrate
to deviate from the procedure prescribed
under Section 28(1), if the facts and
circumstances of the case warrants such a
course, keeping in mind that in the realm of
procedure, everything is taken to be permitted
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
unless prohibited (See Muhammad
Sulaiman Khan v. Muhammad Yar Khan,
(1888) 11 ILR All 267).
xiv. 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 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.”
12. A reading the above decision of the Hon'ble Full Bench of the
Madras High Court (Principal Seat of this Court), Chennai makes it clear
that although powers of the High Court under Article 227 of the
Constitution of India cannot be curtailed, nevertheless, it would have
incumbent on the part of the petitioner to move appropriate application for
striking off the petitioner's name under Order 1 Rule 10(2) of the Code of
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
Civil Procedure, 1908 as made applicable to the provisions of the
Protection of Women from Domestic Violence Act, 2005.
13. This Court is therefore inclined to dispose of this Civil Revision
Petition by giving liberty to the petitioner to file appropriate application
before the Judicial Magistrate Court, Devakottai, under Order 1 Rule
10(2) of the Code of Civil Procedure, 1908 read with provisions of the
Protection of Women from Domestic Violence Act, 2005, in terms of law
clarified by the Hon'ble Full Bench of the Madras High Court (Principal
Seat of this Court), Chennai in the case of Arul Daniel cited supra.
14. In case the Judicial Magistrate Court, Devakottai declines to
strike off the petitioner's name, it is open for the petitioner to approach
this Court. The Judicial Magistrate Court, Devakottai may also endeavour
to call upon the parties for mutual settlement as prima facie the dispute
between the respondent and her husband (the petitioner's brother) appears
to be no major.
15. It is made clear that the petitioner appears to be a third party
apart from the relationship with the respondent as a sister-in-law.
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
Therefore, the physical appearance of the petitioner before the Judicial
Magistrate Court, Devakottai in respect of D.V.C.No.7 of 2021 shall stand
dispensed with. However, the petitioner shall appear through her counsel
before the Judicial Magistrate Court, Devakottai.
16. Accordingly, this Civil Revision Petition is disposed of with the
above observations. No cost. Consequently, connected Miscellaneous
Petition is closed.
19.06.2023
NCC : Yes/No
Internet: Yes/No
Index: Yes/ No
smn2/jen
To
The Judicial Magistrate Court,
Devakottai.
_______________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.372 of 2023
C.SARAVANAN, J.
jen
C.R.P.(MD) No.372 of 2023
and
C.M.P.(MD) No.1819 of 2023
19.06.2023
_______________
https://www.mhc.tn.gov.in/judis
