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.

CRP(PD)(MD)No.2624 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 02.01.2023

CORAM:

THE HONOURABLE MR.JUSTICE B.PUGALENDHI

CRP(PD)(MD)No.2624 of 2022 and

CMP(MD) Nos.12794 & 12795 of 2022

Vedhavalli

... Petitioner

Vs

1.Durga Devi

2.P.Jayagobi

... Respondents

Prayer: Petition filed under Article 227 of the Constitution of India, to

call for the records of D.V.C.No.24 of 2021, pending on the file of the

learned Judicial Magistrate No.1, Kovilpatti and quash the same as

against the petitioner herein, under the provisions of Sections 12, 20, 22

& 23 of Protection of Women from Domestic Violence Act, 2005 by

invoking Article 227 of the Constitution of India.

For Petitioner

: Mr.M.Pandian

O R D E R

This Civil Revision Petition is filed against the proceedings

initiated by the first respondent herein in D.V.C.No.24 of 2021 before

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CRP(PD)(MD)No.2624 of 2022

the Judicial Magistrate Court No.I, Kovilpatti. The petitioner herein is

one of the respondents in D.V.C.No.24 of 2021.

2. The Hon'ble Full Bench of this Court, in the reference

made in Crl.O.P.SR.Nos.31852 of 2022, etc. (batch), dated 17.11.2022,

has answered as follows:

“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

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CRP(PD)(MD)No.2624 of 2022

mechanism available to the aggrieved parties before the

Magistrate, and then by way of an appeal under Section

29 of the Act.”

3. The Hon'ble Full Bench of this Court has also held that

the personal appearance of the parties shall not be insisted upon, if the

parties are effectively represented through a counsel. The relevant

portion is extracted as under:

“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).”

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CRP(PD)(MD)No.2624 of 2022

4. This Civil Revision Petition is filed by the mother-in-law

of the first respondent, challenging the proceedings initiated by the first

respondent, under Sections 12, 20, 22 & 23 of Protection of Women

from Domestic Violence Act, 2005 and not filed on the ground of lack

of jurisdiction. Therefore, this Civil Revision Petition is not

maintainable before this Court, as per the decision rendered by the

Hon'ble Full Bench (cited supra). However, this Court is inclined to

dispose of the Civil Revision Petition in the following terms:

(i) If the petitioner is having any grievance that she

has been unnecessarily added as party to the proceedings,

it is open to her to file an application before the learned

Magistrate to delete her name and if any such application

is filed, the learned Magistrate shall decide the same, as

per the decision of the Hon'ble Supreme Court in

Kuna