The court affirmed that magistrates have implied authority to restore domestic violence cases dismissed for default to prevent injustice.

JUDGMENT

Dated : 2nd December, 2021

1. This Original Petition has been filed against the order in CMP

1542/2021 for restoring M.C.184/2021 on the file of Judicial First Class Magistrate Court-I, Ottappalam, which was dismissed for default as per the order dated 25.2.2021 (Ext.P3). M.C.184/2020 was filed by the respondents, wife and daughter, of the first petitioner seeking various reliefs under Section 12 of the Act. Petitioners are the respondents in M.C.No.184/2020.

Respondents are the petitioners in the said case.

2. According to the first respondent, wife, M.C.184/2020 was posted to 17.2.2021 and it was not included in the list for calling on that day. Hence, respondent was not aware of the next posting date of the case. It was in the said circumstances, there happened to have no representation on behalf of the respondent and accordingly, the petition was dismissed for default. The petitioner herein filed objection contending that M.C.184/2020 was posted on 16.2.2020, 2.1.2021, 17.2.2021 and 25.2.2021 and there was no representation for the petitioners and hence M.C was dismissed for default. It is also the contention of the petitioner that once the MC is dismissed for default, Magistrate has no inherent jurisdiction to restore the case back to file and there is no provision in the Cr.P.C to restore the case which was dismissed for default. It is also his contention that once a case is dismissed for default, Section 362 of Cr.P.C (in short the Code) the Court cannot alter or review the same except to correct a clerical or arithmetical error. After hearing both sides, the learned Magistrate as per the impugned order, restored the case to file.

3. Heard both sides.

4. According to the petitioner, the impugned order passed by the Magistrate restoring the MC to file is without any jurisdiction since the Magistrate Court has no inherent jurisdiction to restore the case back to file. It is also his contention that as per Section 362, once the judgment or order is signed it cannot be altered or reviewed except for clerical error.

5. The learned Magistrate applying the principles laid down in Preeju David v. Minor Mebel ( 2017 (4) KLT 1162 = 2017 (4) KHC 609 = ILR 2017 4 (Ker), 71), found that the Court deemed to possess implied authority to restore the matter in appropriate cases and accordingly allowed the petition. So the only question for consideration is whether any interference is called for in the order restoring the case to file ?

6. M.C.184/2020 has been filed under Section 12 of the Act claiming reliefs under Sections 12 (1), 18, 19, 20 and 22 of Protection of Woman From Domestic Violence Act, 2005 (in short the Act). Statement of objects and Reasons of the Act would expressly provide that the Act was happened to be promulgated when it was found that the phenomenon of domestic violence which was prevailing widely but remains invisible in public dominion. The criminal law provides a remedy under Section 498A IPC for the redressal of a woman who is subjected to cruelty by the husband and relatives. But the Civil law does not address this phenomenon of domestic violence in its entirely. It was in that context that it was promulgated a law so as to ensure the constitutional guarantee provided under Articles 14, 15 and 21 of the Constitution of India for a remedy under Civil Law intended to protect woman from Domestic Violence Act to prevent the occurrence of domestic violence in the Society. So the Act provides a civil remedy which is being enforced through a Criminal Court.

7. In Preeju David, it has been held by this Court while dealing with a restoration petition under Section 125 of the Code of Criminal Procedure, 1973 that jurisdiction of the Court can be extended to exercise the powers to meet the ends of justice unless there is an indication to the contrary in the statute. It is also held that Courts exercising powers under Section 125(2), 127 Cr.P.C are possessing the implied authority to restore the matter in appropriat