The Madras High Court in a recent hearing came forward to give an answer to this vexing question which is pending for so long now. Justice Mr. N. Anand Venkatesh on 18-01-2021 pronounced his Order in a batch of cases filed for the purpose of Quash and he said “No” to Quash.

In fact the Judge found a reason to say No to Quash on an Application instituted before the Magistrate Court under Section 12 of the Protection of Women from Domestic Violence Act, 2005, and according to him Section 482 can never be applied in a Quash of a DV proceedings.

The 60 pages Order found characteristics of the Magistrate Court that handles DV Complaint instituted by the Wife against the Husband and her in-laws. According to the Judge, Magistrate Court – especially handling Domestic Violence Case plays a civil character but not a criminal one.

However, the Judge opines – DV Act is half civil and half criminal, even though the Magistrate Court imbibes Criminal Procedure Code towards conducting trial of the case, but the Act endorses civil character on the Magistrate hence DV application instituted in the Magistrate Court has civil nature and thereby the inherent powers vested on the High Court under Section 482 of Cr.P.C. does not apply in the DV case, the Judge in its Order remarked.

Faqsonlaw does not endorse such views – i.e., characteristics of the Magistrate Court and the inherent powers of the High Court in allowing or disqualifying a DV Petition, however, we welcome the Order for one reason that DV Application instituted by the aggrieved Wife should not be quashed by the High Court under its inherent powers but only by the Magistrate Court has got a dismissal power and that too only upon concluding of a full-fledged Trial.

The intention of the lawmakers is very clear – they have kept checks and balances between application of civil and criminal characteristics in the marital dispute. It is wrong to say that the DV Act endorses civil character and the Magistrate handling it must imbibe civil character – DV Act is a derivative of both Section 498-A of Indian Penal Code and Section 125 to 128 of Code of Criminal Procedure [Cr.P.C.].

A close reading of DV Act would enlighten us that on the grounds of cruelty [prior to legislation of DV Act], the Courts were taking a view of cruelty under Section 498-A of IPC and for maintenance application and Orders passed therein were being enforced under Sections 125 and 128 of Cr.P.C. And the same Magistrate Court who has passed the maintenance Order got absolute powers under Section 127 of Cr.P.C. to modify his own order due to change in circumstances. While so, giving a shade of civil character on the Magistrate Court handling DV Act is inappropriate.

Now our question is;

• Should the Appellate Criminal Court has Revisional Powers under Cr.P.C. [to revise the Orders passed by the Magistrate Court in DV Act] or not?

• Then if one go by the Order of the High Court claiming – it does not have powers to quash under Section 482 of Cr.P.C. against an Application filed under Section 12 of the DV Act – as Magistrate handling it has got a civil character – then how come either the Sessions or High Court have got Revisional Powers to modify or alter the Order passed by the Magistrate under Cr.P.C.?

Faqsonlaw believes in application of natural justice in the marital dispute and natural justice can only be invoked case to case basis but not by the rigid laws. Had there been the interpretation of the characteristics attitude of the Magistrate forethought by our lawmakers the DV Act could have been a subject of the Family Court but not wrest with the Magistrate Court!

Faqsonlaw do also believe that DV Act must be insulated from the Family Court and there are some Courts tend to conduct combined trial together with the Divorce or Resumption of Conjugal Rights and which is against the very essence and spirit of the DV Act and any other Special Act under which the case was instituted.

Please remember the difference between Calendar Case [CC], Hindu Marriage Original Petition [HMOP], Original Suit [OS] and Domestic Violence Complaint [DVC] – all can never be made identical – they are separate as theirs ingredients are separate and they tend to be separate – any attempt to make it a unified one would only be legal conundrum, nothing else!