DV Act | Magistrate Has Inherent Power To Restore Case Dismissed For Default If Sufficient Cause Shown: Kerala High Court
The Kerala High Court, in a recent judgment, held that a magistrate has inherent power to restore a petition under Section 12 of the Protection of Women from Domestic Violence Act that was dismissed for default.Justice C. Pratheep Kumar opined:“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...
The Kerala High Court, in a recent judgment, held that a magistrate has inherent power to restore a petition under Section 12 of the Protection of Women from Domestic Violence Act that was dismissed for default.
Justice C. Pratheep Kumar opined:
“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.”
The respondents before the High Court had preferred a petition under Section 12 of the DV Act against the petitioner herein. Thereafter, the petitioner was dismissed by the Magistrate on the ground that the respondents did not turn up for adducing evidence even though they were given several chances. Thereafter, they filed an application for restoration under Order IX Rule 9 CPC.
Though the petitioner objected to the same, the Magistrate restored the petition saying that the proceedings under Section 12 should be liberally construed since DV Act was a welfare legislation. Aggrieved, the petitioner challenged the restoration before the High Court.
The petitioner contended that since the proceedings under Section 12 was a criminal proceeding, the Magistrate does not have the power of review. The respondents did not appear before the High Court.
The Court examined various provisions of the DV Act, including Sections 26 and 28, which lay down the procedure for proceedings under the Act and the forum for seeking relief.
It remarked that though Section 28 provides that proceedings shall be governed by the Cr.P.C., sub-section (2) permits Magistrate to lay down its own procedure for disposal of an application under Section 12.
Referring to Section 26, the Court observed that as per the provision, 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.
The Court also placed reliance on a catena of decisions by various High Court, which had held that the proceedings under the DV Act are predominantly civil in nature and the Magistrate may adopt flexible procedure to give effect to the welfare nature of the legislation. In some of these cases, the Court had permitted the restoration of petitions, which were dismissed for default.
The Court was of the opinion that the Magistrate rightly restored the petition dismissed for default and that there was no irregularity or illegality in the restoration order.
It, thus, dismissed the petition.
Case No: OP(Crl) 922 of 2024
Case Title: Dileep K.G. v. Swapna Dileep and Ors.
Citation: 2026 LiveLaw (Ker) 224
Counsel for the petitioner: K.C. Eldho, S. Bijilal, Almajitha Fathima, Hima Joseph
Counsel for the respondents: Sanal P. Raj