BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.12.2023
Delivered on : 19.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.RC(MD). Nos.1276 and 1215 of 2022 and
Crl.M.P(MD). Nos.16224 and 7334 of 2022
Crl.RC(MD). No.1276 of 2022:
N.Jeyarani
Vs. … Petitioner/Petitioner
P.K.Nagarajan @ Meenatchi Sundaram … Respondent/Respondent
PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401 of
Cr.P.C., to call for the records in S.T.C.No.1 of 2012 on the file of the learned Family
Court, Madurai and set aside the judgment dated 18.02.2022 in so far as dismissing the Petitioner’s claim to reside in the shared household.
Crl.RC(MD). No.1215 of 2022:
P.K.Nagarajan @ Meenatchi Sundaram … Appellant/Respondent
Vs.
N.Jeyarani … Respondent/Petitioner
PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401 of
Cr.P.C., to call for records and set aside the order passed by the Learned Family Court, Madurai in S.T.C.No.1 of 2012 dated 18.02.2022 and allow this revision.
Crl.RC(MD). Nos.1276 and 1215 of 2022:
For Petitioner : Mr.G.Prabhu Rajadurai, in Crl.R.C(MD)No.1276/2022
: Mr.S.Subbiah, Senior Counsel
for M/s.P.Jessi Jeeva Priya in Crl.R.C(MD)No.1215/2022
For Respondent : Mr.S.Subbiah, Senior Counsel
for M/s.P.Jessi Jeeva Priya in Crl.R.C(MD)No.1276/2022
: Mr.G.Prabhu Rajadurai, in Crl.R.C(MD)No.1215/2022
COMMON ORDER
The petitioner in Crl.R.C.(MD) No.1215 of 2022 is the husband of the petitioner in Crl.R.C.(MD) No.1276 of 2022. The petitioners married on 22.05.1988 and out of the wedlock, they are blessed with two male children in the years 1997 and 1998, respectively. Due to some misunderstanding between them in the matrimonial life, they started living separately.
2.In this case, the wife filed a petition before the learned Judicial Magistrate,
Rajapalayam, in S.T.C.No.1777 of 2009 under the Protection of Women from Domestic Violence Act, seeking various reliefs. Subsequently, she filed a petition in Crl.O.P. (MD).No.15083 of 2011, before this Court to transfer the said S.T.C.No.1777 of 2009 from the file of the learned Judicial Magistrate, Rajapalayam to the learned Judicial Magistrate No.5, Madurai. At that time, a divorce petition filed by the husband in H.M.O.P.No.126 of 2009, was pending before the Family Court, Madurai. After hearing both the parties and considering the same, the learned Single Judge of this Court passed the following order in Crl.O.P.(MD).No.15083 of 2011, dated 28.03.2012;
“2.The petitioner is the wife of the respondent. The petitioner informs that the respondent/husband has moved HMOP.No.129 of 2009 before the learned Family Court,
Madurai, seeking divorce. The case of the petitioner filed in
STC.No.1777 of 2009 seeks reliefs under the Protection of Women from Domestic Violence Act, 2005. The reliefs available under such enactment may also be sought before the Family Court as provided for under Section 26 of the Protection of Women from Domestic Violence Act, 2005. Therefore, the case in STC.No.1777 of 2009 shall stand transferred to the Family Court, Madurai to be tried along with HMOP.No.129 of 2009 before such Court.”
3.On the basis of the said transfer petition, the learned Family Court Judge, Madurai, re-assigned the number in S.T.C.No.1 of 2012. After that, the learned Family Court Judge decided the claim of the wife under the Domestic Violence Act, in the following terms:-
1) The respondent is ordered not to commit any Domestic Violence against the petitioner. The Inspector of Police, South Gate Police Station and Thalavaipuram Police Station, Virudhunagar District, are ordered to give necessary protection to the petitioner;
2) The respondent is ordered not to alienate the properties owned by him without leave of this Court;
3) The respondent is ordered not to contract second marriage till the marriage between the petitioner and the respondent is subsisting;
4) Since the respondent has already alienated the shared house hold, he is ordered to secure same level of alternative accommodation to the petitioner or to pay rent for the same;
5) The respondent is ordered to pay a monthly sum of Rs.25,000/- per month as maintenance to the petitioner from the date of petition till 31.12.2015 and thereafter he is ordered to pay a sum of Rs.50,000/- per month to the petitioner and to be paid on or before the 10th of every English Calender month;
6) The respondent is ordered to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation to the petitioner within two months from the date of this order.
4.The respondent filed an appeal in Crl.A.(MD).No.403 of 2022. Thereafter, this Court passed the order in the said appeal filed by the husband. By mistake, the Registry has registered a revision case as appeal. The registry was directed to convert this appeal as revision and post it along with the revision filed by the wife, which was in SR stage in Crl.R.C.(MD).SR.No.33067 of 2022 in the routine course then and later numbered as Crl.R.C.(MD).No.1276 of 2022. Both the cases were clubbed together and placed before this Court for final disposal.
5.Mr.S.Subbiah, the learned Senior Counsel appearing for the husband submitted that the transfer order passed by the learned single Judge of this Court in Crl.O.P. (MD).No.15083 of 2011 dated, 28.03.2012, is not valid one and the same is a nullity as per law and the proceedings conducted by the learned Family Court Judge, Madurai, under the Domestic Violence Act, in S.T.C.No.1 of 2012 is without jurisdiction and illegal and hence, the impugned order passed by the learned Family Court Judge, Madurai, in S.T.C.No.1 of 2012 is in-executable and invalid in law, on the basis of the judgment of the Honourable Full Bench of this Court reported in 2022 (6) CTC 833 in the case of Arul Daniel and others Vs. Suganya and others. According to the learned Senior Counsel, as per the Full Bench judgment, the Family Court has no jurisdiction to entertain the petition filed by the wife under the Domestic Violence Act. As per the law laid down by the Honourable Full Bench of this Court, the learned Judicial Magistrate alone has power to decide the Domestic Violence Petition. The said judgment of the Full Bench was decided on 17.11.2022. Since the criminal revision was pending before this Court, the learned Senior Counsel made the above said submission. To substantiate his contention, he relied on the following judgments of the Hon’ble Supreme Court:-
5.1. Balvant N.Viswamitra and others Vs. Yadav Sadashiv Mule (Dead) through LRS., and others reported in 2004 (8 )SCC 706.
5.2. Howrah Daw Mangla Hat B.B.Samty Vs. Pronab Kumar Daw reported in 2001 (6) SCC 534.
5.3. K.P.Ranga Rao Vs. K.V.Venkatesham and others reported in 2015 (13 )
SCC 514.
5.4. Sarup Singh and another Vs. Union of India and another reported in 2011 (11 )SCC 198.
- On the basis of the above law laid down by the Hon’ble Supreme Court, the learned Senior Counsel submitted that a defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the Court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a Court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings”. Therefore, the learned Senior Counsel concluded his submission that this proceedings before this Court is continuation of the proceedings initiated by the wife in S.T.C.No.1 of 2012 on the file of the learned Judge, Family Court, Madurai. The husband is entitled to question the jurisdiction on the basis of the Hon’ble Full Bench Judgment of this Court decided much later after the order passed in Crl.O.P.(MD).No. 15083 of 2011. The learned Senior Counsel further submitted that the jurisdiction has not been conferred upon the Court on the basis of the consent of the parties. Hence, he seeks to set aside the order passed in S.T.C.No.1 of 2012 and remit back the same to the jurisdictional Judicial Magistrate Court as per the decision of the Hon’ble Full Bench of this Court.
7.Per contra, Mr.G.Prabhu Rajadurai, the learned Counsel for the wife submitted that when the Hon’ble Full Bench has not made any reference as to “whether the Family Court lacks the jurisdiction to decide the application under the Domestic Violence Act, this Court has power to transfer the proceedings from the Judicial Magistrate Court to the Family Court” and decide the said issues even without jurisdiction. The decision of the Hon’ble Full Bench on the issues, has not referred it as nullity and hence, the submission of the learned Senior counsel for the husband that as per the Hon’ble Full
Bench, the order passed by the Family Court is nullity cannot be accepted.
7.1. The learned counsel further submitted that after the long battle, the wife obtained some of the reliefs in S.T.C.No.1 of 2012, under the Domestic Violence Act, only on 18.02.2022. Originally, the said application under the Domestic Violence Act, was filed in the year 2009 before the learned Judicial Magistrate, Rajapalayam in S.T.C.No.1777 of 2009 and the same was transferred to the Family Court, on the basis of the order of this Court dated 28.03.2012 in Crl.O.P.(MD).No.15083 of 2011. After prolonging for 13 years, the learned Family Court Judge decided the said issues. The husband all along not disputed the jurisdiction of the Family Court, till the decision of the Hon’ble Full Bench. Even in this revision filed before this Court, they have not questioned the jurisdiction. Therefore, he said that the Hon’ble Full Bench judgment is not applicable to the present case. It is to be decided
as it is, on the law that prevailed on the date of the decision of the learned Family Court Judge, Madurai. The lack of the jurisdiction of the Family Court was decided by the Full Bench only on 17.11.2022. Therefore, he seeks that the Full Bench is not applicable to the case retrospectively and it is applicable only prospectively and the same was not applicable to the pending case filed against the final adjudication of the Court. Therefore, he submitted that the submission of the learned counsel deserves to be rejected. He relied the following Judgments of the Hon’ble Supreme Court:
(i) 2021 (15) SCC 15;
(ii) 2015 (13) SCC 514;
(iii) 2017 (6) SCC 785; (iv) 2021 (1) SCC 414. - Per contra, Mr.S.Subbiah, learned Senior counsel appearing for the husband reiterated his stand on the basis of the following precedents:
(i) 2004 (8 ) SCC 706;
(ii) 2001 (6 ) SCC 534;
(iii) 2015 (13) SCC 514;(iv) 2011 (11) SCC 198;
and contended that when the Court lacks inherent jurisdiction in passing the decree or making the order, the same would be without jurisdiction, non est and void ab initio and the same can be challenged at any stage, even in execution or collateral proceedings.
9.The said submission of the learned Senior Counsel was repudiated by the learned counsel for the wife, Thiru. Prabhu Rajadurai, saying once he submitted to the jurisdiction to allow the learned Family Court judge to decide the issue on merits and when there was no bar to decide the domestic violence petition on the date of passing the orders or pending proceedings before the Family Court, now the husband cannot contend that the Family Court lacks the jurisdiction. He placed the judgment of the Honourable Supreme Court reported in 2021 (15) SCC 15 where it is stated the parties cannot allow to take a different stand after submitting to the jurisdiction on the principle of approbate and reprobate. He further submitted that when the wife submitted application in the year 2009 and she was begging for the relief under the Domestic Violence Act and she got the order only in the year 2022, then, it is against the interest of justice to drive the wife to further ordeal of trial afresh before the judicial Magistrate Court and hence, he seeks for the confirmation of the relief granted by the Family Court and he seeks for allowing his relief which is meant for the right of the shared hold. He submitted that the wife is entitled for right of the shared hold in the house situated in the upstairs of the Door No.73, 74, South Veli Street, Madurai. - This Court concluded the hearing of this case after Marathon argument by the rival parties. From the pleadings, submissions and the judgment relied on by the learned counsel on either side, the following questions arise for consideration:-
(i) whether the plea of the husband to set aside the reliefs granted in
S.T.C.No.1 of 2012 on the file of the learned Judge, Family Court,
Madurai, in favour of the wife under the Domestic Violence Act,
2005, by impugned order dated 18.02.2022, holding that the Family
Court has no jurisdiction to entertain the petition under the
Domestic Violence Act, 2005, as per the decision of the Hon’ble Full Bench dated 17.11.2022 is acceptable ?
(ii) whether the plea of the husband that the order passed in Crl.O.P.(MD).No.15083 of 2011 automatically became a nullity, on the basis of the decision of the Hon’ble Full Bench dated 17.11.2022?
(iii) whether the Hon’ble Full Bench Judgment has retrospective application?
(iv) whether the plea of the wife that the Hon’ble Full Bench decision that this Court has no jurisdiction to transfer the petition filed under the Domestic Violence Act, 2005 to the Family Court and the Family Court has no jurisdiction to entertain the petition under the Domestic Violence Act, 2005, is not valid for the reason that the same was decided by the Hon’ble Full Bench beyond the reference?
(v) whether the wife’s plea that she is entitled to a shared household right in the upstairs of Door No.73 and 74, South Veli Street, Madurai? - Question No. iv the question of decision beyond reference:
The reference made before the Hon’ble Full Bench of this Court in the case of
Arul Daniel and others Vs. Suganya reported in 2022 (6) CTC 833,
Reference Answer
Whether a proceeding under Section 12 of the D.V. Act can be challenged under Article 227 of the Constitution or under Section 482 of Cr.P.C.? A petition under Section 482 Cr.P.C. challenging a proceeding under
Section 12 of the D.V. Act is not maintainable. A petition under Article 227 of the Constitution is maintainable on a limited ground of patent lack of jurisdiction, as indicated in paragraphs 40 and 41, supra.
B Except on the limited ground indicated, supra, jurisdiction under Article 227 of the Constitution will not be exercised, as a measure of self-imposed restriction, by-passing the statutory remedies under the D.V. Act in the light of the decision of the Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai, supra.
Whether the aforesaid remedy is available to an aggrieved person before approaching the learned Magistrate and, if necessary, the Court of Sessions by way of an appeal under Section 29 of the D.V.
Act?” 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.”
11.1. According to the learned counsel appearing for the wife, the Hon’ble Full Bench in paragraph No.74, has decided the following questions beyond the reference and hence, he seeks to hold that the same is not binding precedent:-
vi. No power has been vested with the Family Court, either under the D.V. Act or the Family Courts Act, 1984, to entertain an application under Section 12 of the D.V. Act. Similarly, no power has been vested with the Civil Court to entertain an application under Section 12 of the D.V. Act.
vii. Consequently, we hold that an application under Section 12 of the D.V. Act cannot be transferred from the Court of the Magistrate, designated under Section 27 of the D.V. Act, to the Family Court or the Civil Court. Decisions of learned single judges which have held to the contra in paragraphs 56 and 57, supra, will stand overruled.
viii. We, therefore, uphold the first limb of the conclusion of the Division Bench in paragraph 17(e) in P. Ganesan, supra, though for different reasons. The second limb of paragraph 17(e) of the opinion in P. Ganesan, supra, will stand overruled in the light of the well settled principle that consent cannot confer jurisdiction on a court which does not otherwise possess inherent jurisdiction (vide Raghunath Rai Bareja v. Punjab National Bank47).
11.2.To substantiate his contention, the learned counsel for the wife relied
the following provision of the Domestic Violence Act and the
Family Court Act:
Section 26 of the Domestic Violence Act Section 7.2 of the Family Court Act
Relief in other suits and legal proceedings.
(1) Any relief available under sections 18, 19,20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. 7. Jurisdiction.—
(1) Subject to the other provisions of this Act, a Family Court shall—
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.—The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:—
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; 4
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise—
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX
(relating to order for maintenance of wife, children and parents) of the Code of
Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
11.3. Further, the learned counsel for the wife relied the following paragraph of the judgment of the Hon’ble Three Member Bench of the Supreme Court in the case of Satish Chander Ahuja Vs. Sneha Ahuja reported in 2021(1) SCC 414: - …Further, Section 26 also contemplates grant of relief of right of residence under Section 19 in any legal proceedings before a civil court or Family Court or criminal court affecting the aggrieved person….
11.4. He further relied Section 8 of the Family Court Act, which reads as follows:
8. Exclusion of jurisdiction and pending proceedings.—Where a Family Court has been established for any area,—
(a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974),—
(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.
11.5. On the basis of the above Sub-Section 8(b) of the Family Court Act, he submitted that as per Sub-Section 8(b) of the Family Court Act, the jurisdiction is very well conferred upon the Family Court under the Domestic Violence Act, 2005 and the learned Judicial Magistrate lacks the jurisdiction.
11.6. This Court is unable to appreciate the above argument of the learned counsel for the wife on the principle of the judicial discipline. This Court is bound by the decision of the Hon’ble Full Bench.
Therefore, the question No.IV is answered against the wife. - Question No. iii Whether the Hon’ble Full Bench Judgment has retrospective application?
To decide this issue, it is relevant to chart the dates and events of this case.
DATES EVENTS
22.05.1988 Date of Marriage
14.10.2008 Wife driven out of matrimonial home
2009 -Husband filed divorce petition in H.M.O.P.No.126 of 2009.
30.07.2009 S.T.C.No.1777 of 2009 filed before the learned Judicial Magistrate, Rajapalayam under Domestic Violence Act.
2011 Crl.O.P.(MD).No.15083 of 2011 filed under Section 482 of Cr.P.C., to transfer the case from the learned Judicial Magistrate, Rajapalayam, to Judicial Magistrate No. 5, Madurai.
28.03.2012 -This Court considered Section 26 of Domestic Violence Act, 2005, transferred the case to the Family Court. Considering the pendency of the Divorce Petition filed by the husband in H.M.O.P.No.129 of 2009.
-Thereafter, the Family Court, assigned new S.T.C.No.1 of 2012
18.01.2021 -The Honourable Single Judge (Hon’ble Thiru.Justice N.Anand Venkatesh) of this Court reported in 2021 (2) CTC 57 has held that quash petition to quash the proceedings of Domestic Violence petition under Section 482 of Cr.P.C., is not maintainable and
01.04.2021 Honourable Single Judge (Hon’ble Thiru.Justice S.M.Subramanian) of this Court reported in 2021 (2) LW 518 has held that the petition filed under Section 482 of Cr.P.C., to transfer the Domestic Violence Petition from the Judicial Magistrate Court to Family Court is not maintainable.
11.06.2021 Another Honourable Single Judge (Hon’ble Thiru.Justice G.R.Swaminathan) of this Court reported in 2021 (4) CTC 826 has not agreed with the above said decision and held that the transfer petition is maintainable.
27.09.2021 In view of the conflict of judgments, the Honourable Single Judge (Hon’ble Thiru.Justice K.Murali Shankar) of this Court referred the matter to the Honourable Divison Bench of this Court vide judgment reported in 2022 (1) CTC 178.The learned Judge also framed a number of questions for the reference.
18.02.2022 The learned Judge, Family Court, Madurai, granted some reliefs under the Domestic Violence Act, vide impugned order in S.T.C.No.1 of 2012, in favour of the wife.
29.04.2022 The husband filed the Crl.A.(MD).No.403 of 2022, challenging the above impugned order.
12.07.2022 The Honourable Division Bench of this Court (Hon’ble Justice Mr.M.Duraisamy and Justice Mr.Sundar Mohan) reported in 2022 SCC online Mad 3598 had held that application under DV Act cannot be transferred from a magistrate Court to a Family Court and can be made with the consent of the aggrieved person and the parties.
DATES EVENTS
12.08.2022 The Hon’ble Single Judge once again doubted the decision of the Hon’ble Division
Bench and sought the reference on 12.08.2022
20.09.2022 Wife also filed the Criminal Revision Case, against the disallowed portion.
17.11.2022 Then the matter is placed for the Hon’ble Full bench and the Hon’ble Full Bench of this Court decided all the issues including non reference issue of jurisdiction of entertainment of the Family Court petition under DV Act.
29.11.2022 This Court has passed the judicial order to convert the above said appeal in Crl.A. (MD).No.403 of 2022, into Criminal Revision Case.
13.From the narration of the case, the following facts are clear:
The marriage between the parties took place on 22.05.1988. Out of their wedlock, two male children were born in the year 1997 and 1998. Wife alleged that on 14.10.2008, she was driven out of the matrimonial home. The husband gave the complaint against the wife alleging that she committed theft of 400 sovereigns of gold jewels, 10 kgs of Silver Utensils and a cash of Rs.2,00,000/- on 28.04.2009. The husband filed the petition in H.M.O.P.No.126 of 2009 seeking divorce against the wife. On 30.07.2009, the wife filed an application under the Domestic Violence Act, in S.T.C.No.1777 of 2009. The wife filed a petition in Crl.O.P.(MD).No.15083 of 2011 under Section 482 of Cr.P.C/, to transfer the S.T.C.No.1777 of 2009 from the learned Judicial Magistrate, Rajapalayam to learned Judicial Magistrate No.5, Madurai. On 28.03.2012, this Court passed the following order :
“2.The petitioner is the wife of the respondent. The petitioner informs that the respondent/husband has moved HMOP.No.129 of 2009 before the learned Family Court, Madurai, seeking divorce. The case of the petitioner filed in STC.No.1777 of 2009 seeks reliefs under the Protection of Women from Domestic Violence Act, 2005. The reliefs available under such enactment may also be sought before the Family Court as provided for under Section 26 of the Protection of Women from Domestic Violence Act, 2005. Therefore, the case in STC.No.1777 of 2009 shall stand transferred to the Family Court, Madurai to be tried along with HMOP.No.129 of 2009 before such Court.”
- 1.Thereafter, the case was transferred to the Family Court, Madurai and re-numbered as S.T.C.No.1 of 2012 and posted along with the H.M.O.P.No.126 of 2009. In the S.T.C., proceeding, the husband disputed the paternity of the second child and filed the application to conduct DNA test. The same was dismissed and confirmed by this Court in dismissing the Criminal Revision Case. As against the same, S.L.P.No.31732 of 2014 was filed and the Hon’ble Supreme Court directed the husband to appear before the Rajaji Government Hospital, Madurai to take samples, within a period one week from 29.01.2015. But he failed to appear and on 13.05.2016, the S.L.P., was dismissed. Thereafter, the proceedings in S.T.C.No.1 of 2012 and the H.M.O.P.No.126 of 2009 were going simultaneously and after prolonged proceedings, the impugned order was passed. Both the husband and the wife filed the criminal revision case, challenging the same. They never raised the question of jurisdiction either before this
Court or before the trial Court. The learned trial Judge on the basis of the order of this Court in Crl.O.P.(MD).No.15083 of 2019, decided the matter on merits and the final order was passed by the Court below only on 18.02.2022. In the said circumstances, the wife cannot be Penalised for no fault on her on the basis of the one of the maxim of equity namely, actus curiae neminem gravabit meaning- an act of the Court shall prejudice no man and the same is fortified by the decision of the Hon’ble Supreme Court in the case of Raj Kumar Dey v. Tarapada Dey, reported in 1987 (4 ) SCC 398;
6.We have to bear in mind two maxims of equity which are well settled, namely, actus curiae neminem gravabit — An act of the Court shall prejudice no man. this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law.
13.2. And the same was reiterated by the Hon’ble Supreme Court in the case of Committee-GFIL v. Libra Buildtech (P) Ltd., reported in 2015 (16)
SCC 31;
27. It is thus a settled principle of law based on principle of equity that a person cannot be penalised for no fault of his and the act of the court would cause no prejudice to any of his rights. - 3.Therefore, this Court is unable to accept the argument of the husband that the Family Court has no jurisdiction to decide the application filed
by the wife in S.T.C.No.1 of 2012, on the basis of the transfer order passed in Crl.O.P.(MD).No.15083 of 2011. - Further, the Hon’ble Supreme Court in the case of Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, reported in 2017 14 SCC 373 has upheld the jurisdiction of the small cause Court to decide the grievance of the aggrieved person after detailed discussion on legislative intention, object of the domestic violence Act and applying the purposive interpretation to the following word mentioned in the Section 26 “before a
Civil Court, Family Court, Criminal Court”
14.1. The relevant portion of the judgment is as follows, - The Protection of Women from Domestic Violence Act, 2005 has been enacted to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The 2005 Act was enacted by Parliament to give effect to various international conventions. One of us (A.K. Sikri, J.) had occasion to consider the purposes of enacting the 2005 Act in Kunapareddy v. Kunapareddy Swarna Kumari
[Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774 : (2016) 4 SCC (Civ) 493 : (2017) 1 SCC (Cri) 396] . In para 12 of the judgment, the following has been stated: (SCC pp. 781-82)
“12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows: ‘Introduction
The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Penal Code, 1860. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the Protection of Women from Domestic Violence Bill was introduced in Parliament.
Statement of Objects and Reasons - Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this.
The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (Cedaw) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
- It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
- The Bill, inter alia, seeks to provide for the following—
(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.’”
- Section 17 provides for right to reside in a shared household by aggrieved person. Section 18 empowers the Magistrate to pass protection orders of different categories as enumerated in the section itself. Section 19 provides for passing of a residence order in favour of an aggrieved person who is subjected to domestic violence.
- Section 26 of the Act is a special provision which has been enacted in the enactment. Although, Chapter IV of the Act containing Section 12 to Section 29 contains the procedure for obtaining orders of reliefs by making application before the Magistrate whereas steps taken by the Magistrate and different categories of reliefs could be granted as noted in Sections 18 to 22 and certain other provisions. Section 26 provides that any relief available
under Sections 18 to 22 may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent. Section 26 is material for the present case since the appellant has set up her counterclaim on the basis of this section before the Judge, Small Cause Court. Section 26 is extracted below:
“26. Relief in other suits and legal proceedings.—
(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.” - There cannot be any dispute that proceeding before the Judge,
Small Cause Court is a legal proceeding and the Judge, Small Cause Court is a civil court. On the strength of Section 26, any relief available under Sections 18 to 22 of the 2005 Act, thus, can also be sought by the aggrieved person. - Further the Hon’ble Three Member Bench of the Supreme Court in the case of Satish Chander Ahuja Vs. Sneha Ahuja reported in 2021 1 SCC 414 has held as follows:
- …Further, Section 26 also contemplates grant of relief of right of residence under Section 19 in any legal proceedings before a civil court or Family Court or criminal court affecting the aggrieved person….
- In view of the above law prevailed before the Hon’ble Full Bench judgment dated 17.11.2022, the learned Judge, Family Court, Madurai, correctly entertained the petition of the wife filed under the Domestic Violence Act, 2005. Therefore, the contention of the husband on the basis of the decision of the Hon’ble Full Bench dated 17.11.2022 that the Family Court has no jurisdiction to redress the grievance of the wife under Domestic Violence Act, 2005, deserves to be rejected.
- Giving retrospective effect to the law laid down by the Hon’ble Full Bench and holding that the family court had no jurisdiction to try the petition filed by the wife under section 12 of the Domestic Violence Act, 2005, at this stage, would cause serious irreparable discomfort to the wife. Further, if she is directed to undergo further ordeal of trial, the same would go against the object of the domestic violence Act. In this regard, this Court is duty bound to reiterate the principles laid down by the Hon’ble Supreme Court relating to the applicability of the law laid down by the Court to the concluded proceedings depriving the benefit to the victims by applying the principle of the prospective over ruling. It is well known that the Hon’ble Supreme Court in the year 1967, in the case of Golak Nath Vs. State of Punjab reported in AIR 1967 SC 1643 adopted the doctrine of prospective over ruling as expounded by the Hon’ble U.S., Supreme Court. The said application of the principle of the prospective over ruling adopted by the Hon’ble Supreme Court in “Golak Nath” case also was affirmed by the larger Bench of the Hon’ble Supreme Court in Kesavanatha Bharathi case. The said principle also was reiterated by the Hon’ble Supreme Court in various line of judgments and finally in the Constitution Bench of the Hon’ble Supreme Court in the case of ECIL
v. B. Karunakar, reported in 1993 (4 ) SCC 727 has held as follows: - It would, thus, be clear that the Supreme Court of the United States of America has consistently, while overruling previous law or laying a new principle, made its operation prospective and given the relief to the party succeeding and in some cases given retrospectively and denied the relief in other cases. As a matter of constitutional law retrospective operation of an overruling decision is neither required nor prohibited by the Constitution but is one of judicial attitude depending on the facts and circumstances in each case, the nature and purpose the particular overruling decision seeks to serve. The court would look into the justifiable reliance on the overruled case by the administration; ability to effectuate the new rule adopted in the overruling case without doing injustice; the likelihood of its operation whether substantially burdens the administration of justice or retards the purpose. All these factors are to be taken into account while overruling the earlier decision or laying down a new principle. The benefit of the decision must be given to the parties before the Court even though applied to future cases from that date prospectively would not be extended to the parties whose adjudication either had become final or matters are pending trial or in appeal. The crucial cut-off date for giving prospective operation is the date of the judgment and not the date of the cause of action of a particular litigation giving rise to the principle culminating in the overruling decision. There is no distinction between civil and criminal litigation. Equally no distinction could be made between claims involving constitutional right, statutory right or common law right. It also emerges that the new rule would not be applied to ex post facto laws nor acceded to plea of denial of equality. This Court would adopt retroactive or nonretroactive effect of a decision not as a matter of constitutional compulsion but a matter of judicial policy determined in each case after evaluating the merits and demerits of the particular case by looking to the prior history of the rule in question, its purpose and effect and whether retroactive operation will accelerate or retard its operation. The reliance on the old rule and the cost of the burden of the administration are equally germane and be taken into account in deciding to give effect to prospective or retrospective operation.
- Following the same, the Hon’ble Supreme Court in the case of Sonu v. State of
Haryana, reported in 2017 (8 ) SCC 570 at page 589 has held as follows: - This Court did not apply the principle of prospective overruling in Anvar case [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] . The dilemma is whether we should. This Court in K. Madhava Reddy v. State of A.P. [K. Madhava Reddy v. State of A.P., (2014) 6 SCC 537 : (2014) 2 SCC (L&S) 305] held that an earlier judgment would be prospective taking note of the ramifications of its retrospective operation. If the judgment in Anvar [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar case [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] was decided by a three-Judge Bench, propriety demands that we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a three-Judge Bench. In any event, this question is not germane for adjudication of the present dispute in view of the adjudication of the other issues against the accused.
- Upon consideration of the above law, this Court finds difficulty in accepting the argument of the learned counsel for the husband that the judgment of the Hon’ble Full Bench should be applied retrospectively, which would result in unscrambling past transactions and adversely affecting the administration of justice. In order to save the wife from further ordeal of the trial to get the relief of maintenance etc., and achieve the object of the Domestic Violence Act, 2005 namely the speedy remedy, this Court has no hesitation to follow the non-statutory area of law to vintage English Law christening it “justice, equity and good conscience” and the same is fortified by the following paragraph of the Hon’ble Constitution Bench judgment of the Supreme Court in the case of M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, reported in (2020) 1
SCC 1 at page 659,
Justice, Equity and Good Conscience today - With the development of statutory law and judicial precedent, including the progressive codification of customs in the Hindu Code and in the Shariat Act, 1937, the need to place reliance on justice, equity and good conscience gradually reduced. There is (at least in theory) a reduced scope for the application of justice, equity and good conscience when doctrinal positions established under a statute cover factual situations or where the principles underlying the system of personal law in question can be definitively ascertained. But even then, it would do disservice
to judicial craft to adopt a theory which excludes the application of justice, equity and good conscience to areas of law governed by statute. For the law develops interstitially, as Judges work themselves in tandem with statute law to arrive at just outcomes. Where the rights of the parties are not governed by a particular personal law, or where the personal law is silent or incapable of being ascertained by a court, where a code has a lacuna, or where the source of law fails or requires to be supplemented, justice, equity and good conscience may properly be referred to. - Post Independence, Indian courts have utilised the concept less frequently but adopted a broader view of the term “justice, equity and good conscience”. Two cases of this Court are instructive:
- The common underlying thread is that justice, good conscience and equity plays a supplementary role in enabling courts to mould the relief to suit the circumstances that present themselves before courts with the principal purpose of ensuring a just outcome. Where the existing statutory framework is inadequate for courts to adjudicate upon the dispute before them, or no settled judicial doctrine or custom can be availed of, courts may legitimately take recourse to the principles of justice, equity and good conscience to effectively and fairly dispose of the case. A court cannot abdicate its responsibility to decide a dispute over legal rights merely because the facts of a case do not readily submit themselves to the application of the letter of the existing law. Courts in India have long availed of the principles of justice, good conscience and equity to supplement the incompleteness or inapplicability of the letter of the law with the ground realities of legal disputes to do justice between the parties. Equity, as an essential component of justice, formed the final step in the just adjudication of disputes. After taking recourse to legal principles from varied legal systems, scholarly written work on the subject, and the experience of the Bar and Bench, if no decisive or just outcome could be reached, a Judge may apply the principles of equity between the parties to ensure that justice is done. This has often found form in the power of the court to craft reliefs that are both legally sustainable and just.
19.1. It is usual, after the introduction of any special Act, unless the Hon’ble Supreme Court settled the issue of the jurisdiction of the Court, entitlement of the relief etc., the confusion relating to the jurisdiction, applicability of the Act and the nature of the relief has existed among the various Courts in interpreting the provision of the Act. Such situation arises in this case and the same has not been settled by the Hon’ble Supreme Court. In the said circumstances, application of the judgment of the Hon’ble Full Bench in this case would place the wife in the worst position that existed prior to the filing of the petition under the Domestic Violence Act, 2005. Therefore, this Court declines to apply
the principle to the petitioner’s case and the same is fortified by the following observation of the Hon’ble Full Bench in 2020 (1) CTC 33:
“Cry for justice has to be responded to by a Court of justice and equity and unless there is a power, there can be no response to help”.
20.This Court while considering the submission of the husband that whether the non-payment of the maintenance amount is a breach of protection order for which, law enforcing authority has jurisdiction to register the criminal case under Section 31 of the Domestic Violence Act,2005, this Court painfully observed as follows in the case of
S.Amalraj Vs. The Inspector of Police, Sivagangai, reported in 2023 (4) CTC 517
“Sometimes obvious things become imperceptible through legal brain thought proceedings”.
21.Such contention was also raised by the learned counsel for the husband that the Family Court has no jurisdiction by giving interpretation to the Hon’ble Full Bench Judgment of this Court to apply the principle of retrospective operation in order to thwart and nullify the order passed in S.T.C.No.1 of 2012 and hence, this Court without any option dismiss the criminal revision case filed by the husband.
22.The learned counsel for the husband has not submitted much on the merit of the case. This Court perused the judgement. The learned trial judge considering the grievance of the wife, substantiated with evidence and considering the conduct of the husband, granted the following reliefs: - The respondent is ordered not ot commit any Domestic
Violence against the petitioner. The Inspector of Police, South Gate Police Station and Thalavaipuram Police Station, Virudhunagar District, are ordered to give necessary protection to the petitioner. - The respondent is ordered not to alienate the properties owned by him without leave of this Court.
- The respondent is ordered not to contract second marriage till the marriage between the petitioner and the respondent is subsisting.
- Since the respondent has already alienated the shared house hold, he is ordered to secure same level of alternative accommodation to the petitioner or to pay rent for the same.
- The respondent is ordered to pay a monthly sum of Rs.25,000/- per month as maintenance to the petitioner from the date of petitioner till 31.12.2015 and thereafter he is ordered to pay a sum of Rs.50,000/- per month to the petitioner and to be paid on or before 10th every English Calender month.
- The respondent is ordered to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation to the petitioner within two months from the date of this order.
23.The wife established the income of the husband through the business. She also proved the prolonged disturbance caused by the husband to get compensation. She further established that her husband entered into the second marriage even before the divorce and was continuously causing some trouble to the properties forcing her to get injunction restraining the husband from alienating the suit property. The husband also raised the issue of the paternity of one of the child and applied for the DNA test and failed to co-operate for the said test. In all aspects, the wife has suffered Domestic Violence at the hands of the husband. Therefore, this Court finds no grounds to interfere with the impugned order of the Court below. - The wife claimed the right of the shared household in the property situated in the upstairs of the Door No.73, 74, of South Veli Street, Madurai and this Court made a specific question to the husband’s counsel regarding the same. The husband’s counsel submitted that she was not entitled to the right of the shared household in the said property. But, this Court on perusal of the evidence and also other facts is inclined to accept the argument of the learned counsel for the wife that she is entitled to the relief of the right of the shared household. The Honourable three Bench of the Supreme Court reported in 2021 1 SCC 414 clearly interpreted the provisions of the Domestic Violence Act and specifically held that the right of the shared household right is an indefeasible right of the wife and she is entitled to seek the right of the shared house hold. In this case, the husband has number of properties. The wife with the two children ask for the shared household. It is clear from the records, apart from the pleadings and evidence, the said house was in the occupation of the wife at the time of the matrimonial life and
the same is conducive for her living. The husband is now residing at Door No.11/74, 6th
West Cross Street, Meenakshi Nagar, Villupuram, along with his second wife. Therefore, this Court holds that the wife is entitled to right of the shared household in the said house situated in the upstairs, Door Nos.73 and 74, South Veli Street, Madurai.
In view of the entitlement, the following direction No.iv issued by the learned trial
Judge in S.T.C.No.1 of 2012 is liable to be set aside:
iv. Since the respondent has already alienated the shared house hold, he is ordered to secure same level of alternative accommodation to the petitioner or to pay rent for the same.
In view of the above discussion, this Court is inclined to allow the revisions filed by the wife and the husband to that extent. - Accordingly, the Criminal Revision filed by the wife in Crl.R.C.(MD).No.
1276 of 2022, is partly allowed with the following terms:
(i) the impugned order of the Court below in S.T.C.No.1 of 2012 is hereby set aside in respect of the relief of shared household;
(ii) the wife is entitled to the right of shared household in the upstairs of Door Nos.73 and 74, South Veli Street, Madurai.
26.Accordingly, the Criminal Revision filed by the husband in Crl.R.C.(MD).No.
1215 of 2022, is partly allowed with the following terms:
(i) the 4th relief ie., to secure the same level of alternate accommodation to the wife or to pay the rent for the same granted by the learned trial Judge is hereby set aside;
(ii) the remaining portion of the order in S.T.C.No.1 of 2012 is hereby confirmed and the husband is directed to adhere to all the directions issued by the learned Trial Judge, Family Court, Madurai, in the Domestic Violence petition in S.T.C.No.1 of 2012, within a period of four weeks from the date of receipt of a copy of this order. On his failure, it is open to the wife to take appropriate proceedings under Section 31 of the Domestic Violence Act, 2005.
Consequently, connected Criminal Miscellaneous Petitions are closed.
19.03.2024
NCC : Yes/No
Index : Yes/No Internet: Yes/No sbn/vsg
To
1.The Judge,
Family Court, Madurai.
2.The Section Officer,
Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.
K.K.RAMAKRISHNAN, J.
sbn/vsg
Pre-delivery Order made in
Crl.RC(MD). Nos.1276 and 1215 of 2022 and Crl.M.P(MD). Nos.16224 and 7334 of 2022
19.03.2024
