IMPORTANT POINT
Article 227 cannot be invoked against final orders of the Sessions Court; a revision petition under Section 29 of the DV Act is the proper remedy.

ORDER :

Bechu Kurian Thomas, J.

Can an original petition under Article 227 of the Constitution of India be preferred against a judgment in an appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 [for short, ‘DV Act’] is the question that arises for consideration in this original petition.

2. Petitioner is the husband in a domestic relationship. The wife preferred an application under Section 12 of the DV Act and a final order was issued directing payment of monthly maintenance. The appeal preferred against the said order under Section 29 of the DV Act, before the Sessions Court, Ernakulam was dismissed by the impugned order. Petitioner has preferred this original petition under Article 227 of the Constitution of India challenging the order of the appellate court. The Registry of this Court noticed a defect that the original petition is not maintainable. Instead of curing the defect, petitioner requested the matter to be placed before this Court for consideration.

3. Sri. Shaji Chirayath, the learned counsel for the petitioner, contended that the jurisdiction under Article 227 of the Constitution of India can be exercised by this Court since the jurisdiction is all comprehensive and can be invoked, notwithstanding any other remedy available under law. It was submitted that though the order of the Sessions Court issued under Section 29 of the DV Act is final, recourse can be made to Article 227 of the Constitution of India since no other remedy exists. It was further submitted that Section 28 of the DV Act, indicates that Cr.P.C has no application beyond the stage of the court of first instance and therefore, the remedies provided under Cr.P.C cannot be followed after that stage.

4. Since the issue was brought up as a defect, this Court requested Adv.Vivek Venugopal to assist the Court as an Amicus Curiae. The learned Amicus Curiae submitted that recourse to Article 227 of the Constitution of India is not maintainable as the power of superintendence can be exercised only in respect of matters that are pending before the trial court. In the instant case, since the challenge is against a final order, recourse to Article 227 of the Constitution of India ought not be permitted. Adv. Vivek Venugopal further submitted that section 28 of the DV Act clearly indicate that the legislature had thought it fit to make Cr.P.C applicable to all proceedings and therefore only a revision will lie against a final order under section 29 of the DV Act.

5. The two issues that arise for consideration are (i) Can Article 227 of the Constitution of India be invoked against final orders or judgments passed by the Sessions Court in an appeal? and (ii) Can a revision petition be filed against a final order of the Sessions Court issued under section 29 of the DV Act?

Issue No. (i). Can Article 227 of the Constitution of India be invoked against final orders or judgments passed by the Sessions Court in an appeal?

6. The scope of power under Article 227 of the Constitution is no longer res integra. Though the power under Article 227 is exhaustive and vast, it has to be exercised only as a measure of superintendence over the Courts and Tribunals, and that too, when there is perversity or if the order is capricious. The extraordinary power is not a substitute for the appellate or revisional powers. As held in the decision in M/s. Filmistan (P) Ltd. v. Balkrishna Bhiva [(1972) 4 SCC 200], and Satyanarayan Laxminarayan Hegde and Others v. Mallikarjuan Bhavanappa Tirumale [AIR 1960 SC 137], the High Court cannot substitute its own judgment for that of the trial court or the District Court under Article 227 of the Constitution, whether on a question of fact or of law, unless it is arbitrary or capricious or there was no evidence at all for arriving at the conclusion. It was also observed in the above decisions that when alternative remedies are available under the Statutes, recourse to the power under Article 227 of the Constitution of