Article 227 Petition Maintainable Against Domestic Violence Act Proceedings : Madras High Court

The Madras High Court has held that a petition under Article 227 of the Constitution is maintainable to seek the quashing of proceedings under the Domestic Violence Act.

A single bench of Justice GR Swaminathan held that regardless of whether DV Act proceeding is civil or criminal in nature, powers under Article 227 of the Constitution are available against it.

The bench observed that Article 227 is "forum-neutral", which makes no distinction between civil court and criminal court. In other words, the power under Article 227 can be exercised both over civil Courts as well as the criminal Courts. The power under Article 227 of the Constitution cannot be ousted.

"I therefore hold that irrespective of whether the proceedings under Central Act 43 of 2005 are civil or criminal, the power under Article 227 of the Constitution would always lie to quash the proceedings, if a case is really made out", Justice Swaminathan said in the order.

The bench was considering a petition filed under Article 227 of the Constitution seeking to quash proceedings instituted under the Domestic Violence Act. The Registry of the Court refused to number the petition saying that the petition under Article 227 was not maintainable. Therefore, the petitioners' lawyer, Advocate PM Vishnuvarhanan, made a mention before the bench. The bench listed the matter for deciding the issue of maintainability.

The bench noted that the hesitance of the Registry to number the petition was based on the divergence of views expressed in two decisions regarding the nature of proceedings under the Domestic Violence Act. The judgment delivered by Justice Anand Venkatesh in the case Dr.P.Pathmanathan and others v. V.Monica and others (2021 (2) CTC57 held that the proceedings instituted under the DV Act are civil in nature and therefore petition under Section 482 of the Code of Criminal Procedure was not maintainable against it. It was also held in the decision that in appropriate cases, Article 227 will lie against DV Act proceedings.

On the other hand, the judgment delivered by Justice SM Subramaniam in P.Arun Prakash and others v. S.Sudhamary (2021-2-Law Weekly- 518) held that DV proceedings filed are criminal proceedings.

Justice Swaminathan noted that the issue before him was not whether the proceedings are civil or criminal in nature. Regardless of the nature of the proceedings, Article 227 was available against them, since the powers of superintendence are "forum-neutral".

Registry cannot decide maintainability

Justice Swaminathan also observed that the Registry should not have kept the petition unnumbered for long. In this connection, reference was made to the decision of the High Court in P.Surendran v. State by Inspector of Police,  where it was observed that the Registry cannot decide the issue of maintainability as it was a judicial function.

"Respectfully and with utmost humility following the said decision, I hold that the Registry ought to have placed the papers before the Court, if it had any doubt or reservation regarding maintainability.

In the case on hand, the petition that was filed as early as on 17.03.2021 was returned on the ground of maintainability only on19.05.2021. The Bar members complained that a number of petitions have been kept un-numbered", Justice Swaminathan observed in the order.

Click here to read/download the order