Madras High Court
Ms.Aishwarya Sridhar vs Mr.Harihara Venkatraman ...
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
C.R.P(PD).No.2553 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 04.08.2022
Delivered On : 26.08.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.R.P(PD).No.2553 of 2021
and
C.M.P.Nos.19044, 19046 & 19048 of 2021
Ms.Aishwarya Sridhar ... Petitioner
Vs.
1.Mr.Harihara Venkatraman Balasubramaniyan
2.Mr.N.Balasubramaniyan
3. Mrs.B.Santhi
4. Mrs.K.Priya ... Respondents
Prayer: This Civil Revision Petition had been filed under Article 227 of the
Constitution of India, directing the Learned Judge Presiding Officer,
Principal Family Court, Chennai, to number the petition
No.O.P.Sr.No.15584 of 2018 for restitution of conjugal rights and also the
relief prayed for under the Protection of Women from Domestic Violence
Act instituted by the petitioner and further hear O.P.No.152 of 2019
instituted by the first Respondent along with Petitioner's O.P.Sr.No.15584
of 2018 and decide both the petitions together.
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C.R.P(PD).No.2553 of 2021
For Petitioner : Mr.V.Prakash, Senior Counsel
for Mr.U.Manogar
For Respondents : Mr.A.R.Balaji
Mr.S.Mohamed Uduman
for R1 to R4.
ORDER
This Civil Revision Petition has been filed seeking to direct the learned Presiding Officer, Principal Family Court, Chennai, to number the petition in O.P.Sr.No.15584 of 2018 for restitution of conjugal rights and also the relief prayed for under the Protection of Women from Domestic Violence Act instituted by the Petitioner and further hear H.M.O.P.No.152 of 2019 instituted by the first Respondent along with Petitioner's O.P.Sr.No.15584 of 2018 and decide both the petitions together.
2. Mr.V.Prakash, learned Senior Counsel, submitted that the Petitioner (Aiswarya Sridhar), the wife of Harihara Venkatraman Balasubramanian had filed O.P.SR.No.15584 of 2018 before the learned Principal Judge, Family Court, Chennai under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. 2/10 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2553 of 2021
3. The Respondent/husband had filed H.M.O.P.No.152 of 2019 seeking divorce against the Petitioner. The Petitioner and her husband are residing in United States of America. The Petition for restitution of conjugal rights was filed through her mother as Power of Attorney Agent Bhuavaneswari in O.P.Sr.No.15584 of 2018. In the said HMOP, the first Respondent is her husband/Harihara Venkatraman, Second respondent is Balasubramanian, who is the father in law of the Petitioner, third respondent is Santhi, mother in law of the Petitioner and fourth respondent is the sister in law of the Petitioner. Her husband and her in laws treated her cruelly. Therefore, she filed a petition seeking the relief under Section 26 of the Protection of Women from Domestic Violence Act and also for clubbing in O.P.SR.No.15584 of 2018. When the Petition was presented before the learned Principal Judge, Family Court, Chennai, the said Petition was returned.
4. The learned Counsel for the Petitioner submitted that both the Respondents and the Petitioner are now residing in United States of America. Therefore, the HMOP is filed by the wife/Petitioner herein through her Power of Attorney Agent mother. In this Civil Revision 3/10 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2553 of 2021 Petition, directions are sought to be issued to the learned Principal Judge, Family Court, Chennai to take O.P.Sr.No.15584 2018 on file and proceed along with HMOP.No.152 of 2019.
5. As per Article 227 of the Constitution of India, to avoid miscarriage of justice, the H.M.O.P filed by the Petitioner clubbing the case under Domestic Violence Act, Maintainance case, O.P for restitution of conjugal rights has to be entertained and to be taken on file for joint trial with H.M.O.P.No.152 of 2019.
6. The learned Counsel for the Respondents 1 to 4 submitted that, after filing of this Civil Revision Petition, the subject matter of the HMOP filed by the husband was filed as an interim measure. In the meanwhile, both the parties were directed to appear before the Mediation Centre attached to the High Court of Madras. In the Mediation, there was 10 sittings. But Mediation was not possible. Therefore, they have sent a report on the 11th Day of Mediation.
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7. The learned Counsel for the Respondents 1 to 4 had relied on an advertisement given by the father of the Petitioner before this Court. Therefore, the petition for restitution of conjugal rights is not a bona-fide claim of the Petitioner herein. The Petitioner can very well participate in the proceedings in HMOP.No.152 of 2019 and agitate her rights before the Family Court, Chennai. It is the further contention of the learned Counsel for the Respondents 1 to 4 that the Petitioner had filed clubbing three reliefs that is to be granted by different portions. Maintanence cases are usually taken on file and proceeded by Court to the learned Judicial Magistrate. Domestic Violence Act case is also a private complaint to be filed by the wife against the person who had caused cruelty to the De-facto Complainant. In this case, the Petitioner had clubbed O.P for restitution of conjugal rights with maintenance case and Domestic Violence case.
8. Further the learned Counsel for the Respondents 1 to 4 submitted that, as per the ruling given by the Hon'ble Mr.Justice N.Anand Venkatesh in the case of Dr.P.Pathmanathan and others Vs. Tmt.V.Monica reported in 2021 (2) CTC 57, even though the complaint regarding Domestic Violence Act even though is a criminal complaint, the 5/10 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2553 of 2021 nature of the offence alleged is only matrimonial dispute between the husband and wife and it can be treated as civil. The power under Section 482 of Cr.P.C cannot be invoked. The Petition arising out of Domestic Violence Act is to be considered as civil case and Civil Revision Petition is proceeded with.
9. The Hon'ble Mr.Justice N.Anand Venkatesh ordered petition filed under the Domestic Violence Act in Criminal Original Petition as Civil Revision Petition. Thereafter, the Hon'ble Mr.Justice R.Subramanian & the Hon'ble Mr.Justice K.Murali Shankar, presiding over the Madurai Bench of Madras High Court, referred the order passed by the Hon'ble Mr.Justice N.Anand Venkatesh and the matter was referred to the Hon'ble the Chief Justice before the Hon'ble Division of Bench consisting of Hon'ble Mr.Justice M.Duraiswamy & the Hon'ble Mr.Justice Sunder Mohan in C.R.P.PD.(MD).Nos.909, 896 & 915 of 2021, wherein on 12.07.2022, in paragraph 17, the following order was passed:-
(a) The proceedings under chapter IV of the Domestic Violence Act are civil in nature.6/10
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(b) This Court can exercise power under Section 482 Cr.P.C in respect of Domestic Violence Act proceedings.
(c) Section 468 Cr.P.C is not applicable for proceedings under Domestic Violence Act.
(d) We cannot by a Judicial exercise determine the period of limitation in the absence of any provision under the Act prescribing limitation.
(e) Proceedings under Domestic Violence Act cannot be transferred from a Magistrate to a Civil or Family Court at the instance of the Respondent defined under 2 (q) of the Domestic Violence Act. However, the proceedings can be transferred at the instance of the applicants/victim or with her consent.
10. Therefore, the learned Counsel for the Respondent 1 to 4 submits that the Civil Revision Petition is to be dismissed with appropriate direction to the Family Court to dispose of the case in H.M.O.P.No.152 of 2019 pending before the Family Court, Chennai. 7/10 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2553 of 2021
11. Considering the rival submissions of the learned Counsel for the parties, the returns by the Registry of the Family Court, Chennai are found unreasonable and unacceptable in the light of the provisions of the Domestic Violence Act. Therefore, exercising the power under Article 227 of the Constitution of India, the petition in O.P.SR. filed by the Petitioner herein shall be taken on file, if it is otherwise in order. The learned Principal Judge, Family Court, Chennai is directed to dispose of both the Petitions in H.M.O.P & O.P.S.R within a period of three months from the date of receipt of a copy of this order and complete examination of the Petitioner and the Respondents who are in United State of America through virtual mode.
12. With the above directions, this Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
26.08.2022 Index : Yes / No Internet : Yes / No Speaking Order/Non-Speaking Order kmm 8/10 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2553 of 2021 To The learned Presiding Officer, Principal Family Court, Chennai, 9/10 https://www.mhc.tn.gov.in/judis C.R.P(PD).No.2553 of 2021 SATHI KUMAR SUKUMARA KURUP, J.
kmm Pre-Delivery Order in C.R.P(PD).No.2553 of 2021 and C.M.P.Nos.19044, 19046 & 19048 of 2021 26.08.2022 10/10 https://www.mhc.tn.gov.in/judis