Back
2024 Supreme(Online)(MAD) 13783
HIGH COURT OF MADRAS
Hon`ble Mr.Justice G.ILANGOVAN
Mohamed Iqbal – Appellant
Versus
Mohamed Sumaya – Respondent
The judgments clarified that proceedings under the Domestic Violence Act, though civil, are managed by a Criminal Court due to procedural requirements under the Code of Criminal Procedure.
Headnote:
Domestic Violence - Domestic Violence Act - Sections 12, 28 - The proceedings under the Domestic Violence Act are civil in nature, but the Magistrate operates as a Criminal Court due to the procedural requirements of the Code of Criminal Procedure.
Fact of the Case:
The petitioners sought to quash a Domestic Violence case asserting lack of connection to the matrimony dispute and arguing that the Magistrate lacked jurisdiction over them. They claimed the proceedings would cause manifest injustice.
Finding of the Court:
The court held that while Domestic Violence Act proceedings are civil, the Magistrate operates under the Criminal Procedure Code, affirming jurisdiction. No manifest injustice was found as remedies existed within the trial court.
Issues: Did the Magistrate possess jurisdiction over the Domestic Violence proceedings involving the petitioners, and was there any manifest injustice caused?
Ratio Decidendi: The character of the court dealing with a matter is determined by the procedure it follows, resulting in the Magistrate being classified as a Criminal Court while adjudicating on domestic violence matters.
Final Decision: The civil revision petition was dismissed without affecting the merits of the case.
O R D E R
This civil revision petition has been filed seeking to strike off the impugned DVC No.21 of 2022 on the file of the Additional Mahila Court, Judicial Magistrate Level, Ramanathapuram.
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. 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 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 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.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)”
5.In view of the above sai
