Dileep K. G vs Swapna Dileep

C.Pratheep Kumar, J

The 1st respondent in M.C.36/2022 on the file of the Judicial First Class Magistrate,  Kakkanad,  filed  this  O.P under Article  227  of  the  Constitution  of India challenging Ext.P6 order of the learned Magistrate by which the learned Magistrate  ordered  to  restore  the  M.C.  which  was  dismissed  for  default.  (For the purpose of convenience, the parties are hereafter referred to as per their rank in the M.C.)

The petitioners filed the above M.C. under Section 12 of the Protection of Women from Domestic Violence Act (in short, the D.V.Act). Ext.P1 is the copy of the said petition. As per Ext.P3 order dated 30.09.2024, the learned Magistrate dismissed Ext.P1 on the ground that despite several chances given, the petitioners did not turn up for adducing evidence. The petitioners  preferred  Ext.P4  application  under  Order  IX  Rule  9  CPC  praying for  restoring  the  M.C. The  respondents  filed  Ext.P5  objection  stating  that  the Magistrate has no review power. Overruling the objection raised by the respondents, the learned Magistrate allowed Ext.P4, as per Ext.P6 order holding  that  being  a  welfare  legislation,  the  proceedings  under  section  12  of the  D.V.Act  should  be  liberally  construed. Aggrieved  by  Ext.P6  order  the  1st respondent preferred this O.P.

Now the point that arises for consideration is the following:

Whether the Magistrate has got the authority to restore a petition under Section 12 of the Protection of Women from Domestic Violence Act, which was dismissed for default?

Though  notice  was  served  on  the  respondents,  they  did  not  turn up.

Before this court also the contention taken by the learned counsel for  the  petitioner  is  that  the  proceedings  under  section  12  of  the  D.V.Act  is  a criminal  proceeding  and  that  the  Magistrate  has  no  review  power.  Therefore, according to the learned counsel for the petitioner, the learned Magistrate was not justified in restoring the M.C which was dismissed for default. The learned counsel  has  also  relied  upon  the  decision  of  this  Court  in  Farhan  v.  State  of Kerala, 2024 (6) KLT 75 in support of his argument that the Criminal Courts have no inherent power and in the absence of any such power, a Criminal Court  cannot  exercise  any  power  of  review,  modification  or  recalling  its  own order.

Though sub-section (1) of Section 28 of the D.V.Act stipulates that the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of Cr.P.C, sub-section (2) thereof permits the Magistrate to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. Section 28 of the D.V.Act dealing with the procedure to be followed, under Section 12 of the D.V.Act reads as follows :-

Procedure

(1)  Save  as  otherwise  provided  in  this Act,  all  proceedings  under  sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

As per section 26 of the D.V.Act, a 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. Section 26 of the D.V.Act reads as follows :-

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 an y proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

In the decision in Badshah v. Urmila Badshah Godse and Another, 2013 KHC 4831, the Apex court held in paragraph 25 as follows:

“While interpreting a statute the court may not only take into consideration  the  purpose  for  which  the  statute  was  enacted,  but  also  the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon’s Case[11] which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should  avoid  a  construction  which  would  reduce  the  legislation  to  futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result...”

Relying upon the decision in Badshah (supra), this court in Preeju David v. Minor Mebel, 2017 (4) KLT 1162, held that criminal courts have power to recall the order dismissing a petition filed under Section 125 of Cr.P.C for default. In the above decision this court further held that, the decision of this court in Balakrishnan v. Rajamma, 1979 KHC 280 in which it was held that criminal courts have no inherent powers to recall the order dismissing a petition filed under Section 125 of Cr.P.C for default, is no more good law.

In Karun Prasad & Others v. Keerthana & Another, 2021, SCC OnLine Ker, 15052 (OP(Crl.)295/2021), in a similar set of facts the order of the learned Magistrate restoring the petition filed under section 12 of the D.V.Act which was dismissed for default, was under challenge. This Court relying upon the decisions in Preeju David (supra) and Badshah (supra) held that  restoration  of  a  petition  under  section  12  of  the  D.V.Act  was  within  the powers of the Magistrate.

With respect to the object of the D.V.Act, in Karun Prasad (supra) in paragraph 6 this court held that:

“M.C.184/2020 has been filed under Section 12 of the Act claiming  reliefs under Sections  12(1),  18,  19,  20  and  22  of  Protection  of Woman From Domestic Violence Act, 2005 (in short the Act). Statement of objects  and  Reasons  of  the Act  would  expressly  provide  that  the Act  was happened  to  be  promulgated  when  it  was  found  that  the  phenomenon  of domestic violence which was prevailing widely but remains invisible in public dominion. The criminal law provides a remedy under Section 498A IPC for the redressal of a woman who is subjected to cruelty by the husband and relatives. But the Civil law does not address this phenomenon of domestic violence in its entirely. It was in that context that it was promulgated a law so as to ensure the constitutional guarantee provided  under  Articles  14,  15  and  21  of  the  Constitution  of  India  for  a remedy under Civil Law intended to protect woman from Domestic Violence Act to prevent the occurrence of domestic violence in the Society. So the Act provides a civil remedy which is being enforced through a Criminal Court.”

In paragraphs 8 and 11 in Karun Prasad (supra) this court further held that:-

“ 8. The act is also a benevolent legislation to redress the grievance of hapless woman and children at the hands of the opposite party. The  Act itself provides as per Section 26 that any relief available under Sections 18 to 22 may also be sought in any legal proceeding before the Civil Court or a Family Court affecting the aggrieved person and the respondent where such proceeding was initiated before or after the commencement of this Act. Section 26(2) also provides that any relief referred to under 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  proceedings  before  a  Civil  or  criminal  court.  The  only  embargo provided by sub-section (3) is that in case any relief has been obtained by the  aggrieved  person  in  any  proceeding  other  than  the  proceeding  under the  said Act,  she  shall  be  bound  to  inform  the  Magistrate  of  the  grant  of such relief. So the Act itself provides adequate safeguard to seek the relief under  Sections  18  to  22  in  any  civil  proceeding  in  addition  to  any  other relief pending in any other civil or criminal court.”

“11. PWDV Act is also a beneficial legislation and hence a purposive interpretation has to be given so as to achieve the object and to redress the grievance of marginalized society and the purpose of the Act is also to achieve social justice by eradicating menace of domestic violence which is rampant in our society. While dealing with such matters, the Court has to exercise its jurisdiction to advance the justice and curb injustice. In the present case, the impugned order itself would reveal that M.C.184/2020 was not included in the list on 16.12.2020 and 17.2.2021 on which date there  was no representation for  the respondent and hence  the  respondent could not have known the posting date of the case to 25.2.2021. So taking those aspects into account, the learned Magistrate find it just to restore the case back to file for adjudication on merits. I do not find any illegality or irregularity or illegal exercise of jurisdiction by the Magistrate warranting interference at the instance of this Court.”

As held by this Court in the decisions in Karun Prasad and Preeju David (supra) and the decision of the Apex court in Badshah (supra) it is  to  be  held  that  proceedings  under  the  D.V.Act  are  civil  in  nature  and  form part of a beneficial legislation. While interpreting the provisions of such a beneficial legislation, the courts must adopt purposive interpretation to ensure the  effective  protection  under  the  D.V.Act. Therefore,  it  is  to  be  held  that  the Magistrate  possesses  implied  power  to  restore  a  petition  filed  under  the  D.V. Act which was dismissed for default, to advance justice. Therefore, section 362 Cr.P.C cannot be a bar for exercising such power in the process of ensuring protection to the aggrieved person.

In the decision in Maria Mercy Suzana Fernandes vs. Francisco Monte Piedade Cruz and Ors., MANU/MH/0687/2018, the Bombay High Court also held that a Magistrate who has the power to dismiss a case for default inherently has the power to restore it upon sufficient cause being shown and it would be unjust to hold otherwise.

In the decision in Jaydipsinh Prabhatsinh Jhala and Ors. Vs. State of Gujarat and Ors., MANU/GJ/0850/2009, the Gujarat High Court while holding that a wife can array even female relatives of the husband as respondents under the proviso to Section 2(q) of the D.V.Act, held that, proceedings under the D.V.Act are predominantly civil in nature and therefore, the Magistrate is not strictly bound by rigid criminal procedure and may adopt flexible procedure in the interest of justice.

In the light of the above discussions, it can be seen that for ensuring the effective protection under the D.V.Act it is to be held that a Magistrate who has power to dismiss a case for default inherently has the power to restore it, upon sufficient cause being shown. Therefore, I do not find any  irregularity  or  illegality  in  Ext.P6  order  passed  by  the  learned  Magistrate restoring the MC which was dismissed for default and as such, this O.P.(Crl) is liable to be dismissed.

In the result, this O.P.(Crl) is dismissed.