Madras High Court
M.Mohammed Abzar vs A.M.Nisha on 9 February, 2024
Author: G.Ilangovan
Bench: G.Ilangovan
C.R.P.(MD)No.113 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 09/02/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
C.R.P(MD)No.113 of 2024
and
CMP(MD)Nos.523 and 524 of 2024
1.M.Mohammed Abzar
2.S.Sikkandar Aayishabegam
3.Akkil Fathima
4.Mohammed Sulaiman
5.Jainul Zulaiga : Petitioners/Respondents 1 to 5
Vs.
A.M.Nisha : Respondent/Petitioner
PRAYER:-Civil Revision Petition has been filed under
Article 227 of the Constitution of India, to call for the
records and strike off the proceeding/Petition in D.V
No.218 of 2023 on the file of the Judicial Magistrate,
Additional Mahila Court, Madurai, filed by the respondent
herein and pass such further or other orders.
For Petitioners : Mr.A.Jayaramachandran
O R D E R
This civil revision petition has been filed seeking to strike off the proceeding in D.V No.218 of 2023 on the file of the Judicial Magistrate, Additional Mahila Court, Madurai.
https://www.mhc.tn.gov.in/judis 1/16 C.R.P.(MD)No.113 of 2024
2.Heard the learned counsel appearing for the petitioners.
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. https://www.mhc.tn.gov.in/judis 2/16 C.R.P.(MD)No.113 of 2024 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 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 https://www.mhc.tn.gov.in/judis 3/16 C.R.P.(MD)No.113 of 2024 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 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.These are the directions issued, while entertaining the petition under Domestic Violence Act. So the petitioners can very well invoke those directions before the trial court itself.
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5.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)”
6.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.
7.In the light of the above said statement of law, now we will go to the another aspect.
8.As stated in the Full Court Judgement, even though, petition under section 482 of Cr.P.C will not https://www.mhc.tn.gov.in/judis 5/16 C.R.P.(MD)No.113 of 2024 lie, Article 227 of the Constitution of India can be invoked on a specific plea and circumstances.
9.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 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 https://www.mhc.tn.gov.in/judis 6/16 C.R.P.(MD)No.113 of 2024 the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.”
10.So in the light of the statement of law, now this civil revision petition has been filed by the petitioners.
11.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.
(ii)Whether there is any error in jurisdiction;
and
(iii)Whether there is any manifest or substantial injustice.
12.Now what is meant by jurisdiction 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
https://www.mhc.tn.gov.in/judis 7/16 C.R.P.(MD)No.113 of 2024 “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 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' https://www.mhc.tn.gov.in/judis 8/16 C.R.P.(MD)No.113 of 2024 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 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.
https://www.mhc.tn.gov.in/judis 9/16 C.R.P.(MD)No.113 of 2024 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.
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, https://www.mhc.tn.gov.in/judis 10/16 C.R.P.(MD)No.113 of 2024 and would depend on the nature or subject matter of the case before it.
13.So absolutely, the petitioners cannot say that there is inherent lack of jurisdiction in view of the above said statement of law.
14.Now we will examine as to whether the other ingredients can be attracted namely whether there is any manifest or substantial injustice occasioned to the petitioners.
15.So in the light of the above said ingredients, we will examine the factual aspects to answer this point.
16.Cognizance was taken on the basis of the report submitted by the Protection Officer. The respondent appeared and her statement was recorded. Wherein, she has stated that the marriage between the husband and herself took place, on 11/07/2021. The marriage expenses were promised to be shared by the husband's family. Even at the first day of the marriage, she was insulted and ill- treated by the husband. She was compelled to read Guran and follow the religion rites. When she refused, she was insulted and criminally intimidated. He was not https://www.mhc.tn.gov.in/judis 11/16 C.R.P.(MD)No.113 of 2024 interested in the conjugal relationship. He started saying that he is not liking her. When that was brought to the parents of the husband, they did not take proper care. But later, she came to know that he is having illegal affairs with another girl. She was compelled to do domestic work independently. The in-laws are also started harassing, insulting and ill-treating her. She was taken to the parental home, on 11/11/2021. Thereafter, she did not take proper care. So, she filed OS No.53 of 2022 seeking divorce. She was compelled to withdraw the suit and assaulted.
17.In the grounds, it has been stated that the in- laws have been wrongly implicated. Because of the misbehvaiour of the wife, issue arose between them. She voluntarily left the matrimonial home. On the date of the alleged assault, on 15/08/2023, the petitioners were in Bangalore and in other stations attending to their duty. The trial court entertained the petition without following the case of Arul Danial Vs. Suganya (2022(3)MWN (CR.)539(FB).
18.So the next question, which arises for consideration is whether the grievance expressed by the petitioners 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:-
“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.”
20.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 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.
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.
https://www.mhc.tn.gov.in/judis 13/16 C.R.P.(MD)No.113 of 2024 “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 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)”.
22.The same may be followed by the petitioners as well as the trial court.
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.
09/02/2024 Index:Yes/No Internet:Yes/No er To, The Judicial Magistrate, Additional Mahila Court, Madurai.
https://www.mhc.tn.gov.in/judis 15/16 C.R.P.(MD)No.113 of 2024 G.ILANGOVAN, J er C.R.P(MD)No.113 of 2024 09/02/2024 https://www.mhc.tn.gov.in/judis 16/16