Madras High Court

Felix Jerome vs Arockiya Preethy on 6 October, 2023

C.R.P.(MD)No.2570 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 06.10.2023

CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

C.R.P.(MD)No.2570 of 2023
and
C.M.P.(MD)Nos.13325 and 13326 of 2023

1. Felix Jerome

2. Alex

3. Adaikkalamary

4. Felsiya

5. Benitto Patrik ... Petitioners/
Respondents 1to5

Vs.

1. Arockiya Preethy

2. Minor Rithvik
represented through natural guardian and mother,
the first respondent ... Respondents/
Petitioners

Prayer : This Civil Revision Petition filed under Article 227 of the
Constitution of India, to call for the records in D.V.C.No.5 of 2023 on the
file of the learned Judicial Magistrate, Keeranur and strike off the same.

1/14
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C.R.P.(MD)No.2570 of 2023

For Petitioners : Mr.A.Robinson

For Respondents : Mr.C.Suresh Kannan

ORDER

The Civil Revision Petition has been filed, invoking Article 227 of

the Constitution of India, seeking orders to call for the records in

D.V.C.No.5 of 2023 pending on the file of the Court of the Judicial

Magistrate, Keeranur and strike off the same.

2. The first respondent, for herself and on behalf of her minor son

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.5 of 2023, has issued

summons to the petitioners to appear before the said Court. Challenging

the issuance of summons, the petitioners have preferred the present Civil

Revision.

3. Admittedly, the first petitioner is the husband, the second

petitioner is the father-in-law, the third petitioner is the mother-in-law, the

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fourth petitioner is the sister-in-law and the fifth petitioner is the brother-

in-law of the first respondent.

4. The main complaint of the petitioners is that the petitioners 2 to 5,

who 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.

5. 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

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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.

6. 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

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

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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.

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

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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.”

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

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 self-

imposed restriction, by-passing the statutory remedies under the D.V. Act,

in the light of the decision of the Supreme Court in Virudhunagar Hindu

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.

8. Though the Hon'ble Full Bench has specifically directed the

Magistrates not to issue summons under Section 61 Cr.P.C. but issue

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notice as contemplated under the provisions of the Domestic Violence Act

and Rules made therein, in the present case, as already pointed out, the

learned Magistrate has issued summons, but that by itself is not a ground

to quash or strike out the entire complaint.

9. 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,

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

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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.”

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

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

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

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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.

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

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 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

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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.”

12. 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

13. 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.

14. Regarding the petitioners' 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. .....

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).”

15. 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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16. With the above observation and direction, this Civil Revision

Petition is disposed of. Consequently, the petition in C.M.P.(MD)No.