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Issue Regarding DV Act Being Civil or Criminal, Now Stands Referred to Larger Bench

2 min read

Khushi Gupta

Published on: May 29, 2022 at 19:26 IST

Domestic violence is a household phenomenon, largely invisible in the public domain. The COVID-19 pandemic brought with it a rise in the instances of domestic violence in households.

The Madras High Court, in its judgment in the case of Dr P Pathmanathan vs Monica & Other dealt with the relevant provisions under the Act and various verdicts in this sphere.

The judgment swiftly took off in finding that the High Court has no jurisdiction to quash a complaint under Section 12 of the Domestic Violence Act, 2005 (DV Act), in exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 (CrPC).

 The Court rightly interpreted that civil proceedings under Chapter IV would transform into criminal proceedings in case of aforesaid breach under Chapter V of the Act.

The application of CrPC to an application under Section 12 of the DV Act is residuary in nature by virtue of the mandate of Section 28(1) of the DV Act.

The Court held that Section 482 CrPC being the inherent criminal jurisdiction of a High Court, cannot be invoked to quash an application under Section 12 of the DV Act.

However, the Court further held that the aggrieved are not remediless and they can approach the High Court under Article 227 of the Constitution, and laid down a slew of directions to be followed.

However, in P Arun Prakash and Others Vs S Sudhamary, the Court took a diametrically opposite view by holding that proceedings initiated under the DV Act are criminal in nature. The Court in the above case highlighted the relevant provisions under the DV Act, and after citing Section 26 of the Act, plainly concluded that the applicability of CrPC would make the proceedings under the DV Act criminal in nature.

It is important to note that the issue in the said case pertained to a petition seeking withdrawal of a DV case from the Metropolitan Magistrate Court and to transfer the same to the file of the Family Court. As the Registry had questioned the very maintainability of the plea under Article 227, the same was posted before the High Court.

The Court eventually confirmed the maintainability issues raised by the Registry and proceeded to make observations with respect to the nature of proceedings under the DV Act. Therefore, the moot issue in the said case was with respect to the very maintainability of the transfer Criminal Miscellaneous Petition, as it did not relate to the nature of jurisdiction exercised under the DV Act.

Although the earlier judgment might have reduced a large chunk of briefs for the counsel on the criminal side, it is ingeniously interpreted and made nuance findings.