C.R.P.(MD)No.116 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 29/02/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
C.R.P(MD)No.116 of 2024
and
CMP(MD)Nos.528 and 529 of 2024
1.Murugaperumal : Petitioner/4th Respondent
Vs.
1.Subbulakshmi : 1st Respondent/Petitioner
2.Rajammal
3.Duraisamy
4.Alamelu
5.Manikandan : R2 to R5/R2 to R5
PRAYER:-Civil Revision Petition has been filed under
Article 227 of the Constitution of India, to strike off
the proceedings in DVC No.26 of 2023 on the file of the
Judicial Magistrate Court No.IV, Tirunelveli and pass
further or other orders.
For Petitioners : Mr.Ka.Ramakrishnan
O R D E R
This civil revision petition has been filed seeking
to strike off the proceedings in DVC No.26 of 2023 on the
file of the Judicial Magistrate Court No.IV, Tirunelveli.
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2.Heard the learned counsel appearing for the
petitioner.
3.Let me extract the relevant portion of the
judgment reported in the case of Arul Danial Vs. Suganya
(2022(3)MWN (CR.)539(FB):-
“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.
“15 (o) To sum up:
(i) As we have already held that
the proceedings under the Domestic
Violence Act are civil in
nature.............
16 (c) We have already held that
the proceedings under Chapter IV of the
Domestic Violence Act are civil in
nature..........”
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:
“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
(2) of the Act.” (emphasis supplied)
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.”
4.Similarly regarding the appearance of the parties
before the trial court, para (iv) may be extracted
herein:-
“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.
6.In the light of the above said statement of law,
now we will go to the another aspect.
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.
8.Let me extract the relevant portion:-
“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
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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.”
9.In the light of the statement of law, it is
submitted that now this civil revision petition has been
filed by the petitioner.
10.Now we shall examine as to whether the
petitioners satisfied the requirement of law namely;-
(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
(iii)Whether there is any manifest or substantial
injustice.
11.Now what is meant by jurisdictional error has
also been elaborately discussed in the judgment. Let me
extract the relevant portions:-
“25.At this juncture, it is
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
in Nusli Neville Wadia Vs. Ivory
Properties, 2020(6)SCC 557, wherein, it
was observed as under:-
“The word “jurisdiction” is derived
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
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class of cases to which a particular
case belongs. Jurisdiction is the
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
generally understood as the authority to
decide, render a judgment, inquire into
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
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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)
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.
13.Now we will examine as to whether the other
ingredients are attracted namely whether there is any
manifest or substantial injustice occasioned to the
petitioner.
14.In the light of the above said ingredients, we
will examine the factual aspects to answer this point.
15. The complaint is filed by the 1 s t respondent wit h
the following allegations:-
The marriage between the petitioner and the 1st
respondent took place, on 09/12/2021 as per their
religious customary rites. Even at the time of marriage,
she noticed some abnormal behaviour with the husband.
Right from the marriage, he has not interested in
conjugal relationship. Even the in-laws prevented her
from the conjugal rights. Even though, it was brought to
the notice of the in-laws, she was harassed, ill-treated
and insulted. During their joint living, the husband and
the in-laws were interested in getting money. They also
started demanding property, money, etc.
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16.The revision has been preferred by the petitioner
stating that there is no domestic relation exits between
the petitioner and the 1st respondent; the petitioners
sisters are married and living separately and the other
reasons stated in the complaint are not made out.
17.So the next question, which arises for
consideration is whether the grievance expressed by the
petitioner will cause or have occasioned manifest
injustice.
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:-
“manifest injustice.A direct, obvious,
and observable error in a trial court, such as
a defendant's guilty plea that is involuntary
or is based on a plea agreement that the
prosecution has rescinded.”
19.In the light of the above said definition, when
we examine the factual aspects, as mentioned above, now
again, it is a clear answer and remedy suggested to the
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people like the petitioners in the light of the decision
rendered in Dr.P.Pathmanathan Vs. Monica [(2021(2)CTC
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.
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
(CRP(MD)No.2568 of 2023, dated 10/10/2023) has observed
like this.
“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.
“76....
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
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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)”.
21.The same may be followed by the petitioners as
well as the trial court.
22.So this civil revision petition deserves no
consideration at all, of course with the above said
liberty.
23.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.
29/02/2024
Index:Yes/No
Internet:Yes/No
er
To,
1.The Judicial Magistrate No.IV,
Tirunelveli.
2.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
C.R.P(MD)No.116 of 2024
29/02/2024
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