CHAITANYA SINGHANIA Vs. KHUSBOO SINGHANIA

JUDGEMENT

(1.) The question that requires an answer in the instant revision is whether an order passed by the learned magistrate in a proceeding under Section 12 read with Section 23 of the Protection of Women from Domestic Violence act, 2005 (hereinafter described as the said Act) on the point of maintainability of the said proceeding can be quashed under the provisions of Section 482 of the Code of Criminal Procedure (hereafter described as the Code).

(2.) The above question would have been answered considering the provisions of the said Act and the Code but for the conflicting decisions on the applicability of section 482 of the Code in a proceeding under the said Act. The Hon'ble Madras High Court in Dr. P. Pathmanathan v. V. Monica: (2021) 2 CTC 57 pronounced an order on 18th January 2021 holding, inter alia, that the petition under section 482 of the Code is not maintainable. However, the petition under Article 227 of the Constitution is maintainable if it is found that the proceedings before the magistrate suffered from patent lack of jurisdiction. The Jurisdiction under art. 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exist jurisdictional error and that substantial injustice would be caused if the power is not exercised in favour of the petitioner. 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, and then by way of an appeal under section 29 of the Act.

(3.) In short, the Madras High Court said that the relief under the said Act will be granted by a civil or criminal or family court. Further there is no application of service of summons under the said Act upon the respondent as under section 61 of the Code. It also held that an application under section 12 of the said Act is not a complaint under section 2(d)and consequently section 190(1)(a) and sections 200-204 of the Code have no manner of application in such proceeding. Further, there is no concept of an accused but a concept of the respondent in the said Act and finally in absence of the concept of commission of an offence in the PWDV Act redressal in terms of Section 482 of the Code is not available.