The Supreme Court has held that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers.
In this case, the petitioner had filed a domestic violence complaint before Metropolitan Magistrate, Bengaluru, which was dismissed. The appeal against this order was dismissed by the Additional Sessions Judge, Bengaluru. The High Court also dismissed the revision petition filed by the petitioner. The petitioner assailed this order passed by the High Court by filing a writ petition under Article 226 with a prayer to declare the judgment of the Single Judge ' void'. Later, this writ petition was transferred to Apex Court.
When the case came up before the bench comprising Justices DY Chandrachud and KM Joseph, the petitioner who appeared in person submitted that the writ petition under Article 226 is maintainable on the ground that the order dated 31 July 2018 of the High Court is void ab initio. Rejecting such a contention, the bench observed:
"We are of the view that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court."
The bench also refused to address the submissions made on merits by the petitioner. The Court, however, left open the rights and remedies available to the petitioner, including by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge.
The case between the duo had earlier reached the Apex Court when one of the parties had assailed the order of the High Court transferring to itself the appeal pending before the Sessions Court. In the said case, the Supreme Court had observed that to issue an order under the Domestic Violence Act permitting a party to occupy a household, it is necessary that the two parties had lived in a domestic relationship in the household. The court held that there was no reason for the proceedings to be withdrawn from the appellate court to the high court itself.
Case name: Neelam Manmohan Attavar vs. Manmohan Attavar (D) Thr LRsCase no.: Transferred Case (Criminal) No 1 of 2020Coram: Justices DY Chandrachud and KM Joseph