DV Proceeding cannot be challenged u/s 482
A Full Bench of the Madras High Court, in Arul Daniel & Others v/s Suganya & Others, held that proceedings under Section 12 of the Domestic Violence Act (DV Act) can be challenged in the High Court only under Article 227 of the Constitution. Such proceedings cannot be challenged by invoking the court’s power under Section 482 Criminal Procedure Code (CrPC).
The full bench thus upheld the decision of a single bench of the Madras High Court in Dr.P.Pathamnathan v V.Monica which upheld that the proceedings under the DV Act are civil in nature.
However, a Division Bench of the court later observed that a petition to quash a proceeding under DV Act, under Section 482 of CrPC, was maintainable.
Subsequently, a single judge, referred the matter to a larger bench, as the decision of the division bench was not in consonance with the decisions of the Supreme Court.
Under DV Act Magistrate Court is only a designated court
The full bench observed that under the Domestic Violence Act, a Magistrate court is only the designated court to hear applications but not a criminal court. Therefore, a petition to quash a DV Act proceeding under Section 482 CrPC is not maintainable.
D V proceedings can be challenged under Article 227
However, a challenge against the proceedings under Domestic Violence Act under Article 227 of the Constitution can be filed in the High Court.
The jurisdiction under Article 227 is one of superintendence and is visitorial in nature. It 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.
Kerala HC holds such a view
The High court of Kerala states in Latha PC v State of Kerala that a proceeding initiated under section 12 of the DV Act cannot be quashed u/s 482 of the Criminal Procedure Code (CrPC).
In this case, the High Court of Kerala holds that the petitioner has the right of the petitioners to approach the Magistrate for reliefs and if he approaches the Magistrate, the court below shall consider their requests, in the light of the decisions in Dr. V.K.Vijayalekshmi Amma v Bindu V.
The Kerala HC adds that a person to whom notice is issued by the Magistrate under Section 12 of the DV Act can appear before the Magistrate and contend that the proceedings is not maintainable against him, on any of the ground that the person who filed the application is not an ‘aggrieved person’ as defined in Section 2(a) of the DV Act, or that he would not fall within the definition of the ‘respondent’ in Section 2(q) of it, or that the allegations do not make out a case of ‘domestic violence’ as defined in Section 2(g) of the act or that the reliefs sought are not reliefs provided for in the act. Such contentions regarding the maintainability of the application, if raised, shall be decided by the Magistrate.
What the Bombay High Court says
The Full Bench of the Bombay High Court in Prabhakar Mohite v State of Maharashtra [2018 ALL MR (cri) 4508] states that a petition under Section 482 CrPC for quashing of a complaint under DV Act, is maintainable.
D V proceeding is civil in nature
In Kunapareddy v Kunapareddy Swarna Kumari, (2016) 11 SCC 774, it was held that an application before a Magistrate, which seeks to vindicate the civil rights of an aggrieved person, for one or more reliefs under Chapter IV of the DV Act, are civil in nature. The inherent power u/s 482, the CrPC does not give authority to annul the proceedings which are not before a Criminal Court.
To constitute a criminal court, it should be a Court falling under Section 6 CrPC, and the proceedings before it should be criminal in character. If the proceeding before the Court is civil in nature, then it is improper to consider the Court as a Criminal Court exercising criminal jurisdiction for the purposes of Section 482, CrPC.
The court notes it with concern that in several cases under DV Act, Magistrates mechanically follow the procedure set out in Sections 190(1)(a), 200 to 204, CrPC and issue summons as if the respondent before it is accused of criminal offences.
Appeal u/s 29 of the DV Act is the right procedure
In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate.
An appeal under Section 29 of the Act is the right way to correct an error in the proceedings under DV Act.
Conclusion
The High Courts are divided in their views on whether the application under 482 or 227 will lie or not, on the proceedings under DV Act. It is for the Supreme Court to come and conclude the issue with an authoritative judgement.
Further reading
Anirudh Das: Divergent Views on the Nature of Domestic Violence Act and Jurisdiction of the High Court. In Jus Corpus Law Journal, 2021.
