"Petition under Article 227 will be maintainable against Domestic violence act proceedings"

 The Madras High Court in its single-judge bench of Justice GR Swaminathan held that Article 227 of the Constitution is “forum-neutral” making no distinction between civil and criminal cases. It was further held that while seeking for quashing of proceeding under Domestic Violence Act, article 229 is maintainable.

Article 227 in The Constitution Of India 1949

"227. Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces"

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.

Order of the Court:

The Hon’ble bench of the Madras High Court was of the view that the Registry should not have kept the petition unnumbered for so long. Further, the Registry ought to have placed the papers before the Court, if it had any doubt or reservation regarding maintainability.

It was also held that the text of the provision in Article 227 is forum-neutral as it 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 Registry was thus directed to number the petition and list the matter for admission before the portfolio Judge on 16.06.2021.