Madras High Court "disregards" single judge's directions passed for custody of children in proceedings pertaining to DV Act

The Madras High Court recently "disregarded" the observations and directions issued by a single judge bench for the custody of the children while dealing with a civil revision petition that had been essentially filed to strike off the proceedings initiated under the Domestic Violence Act and for restitution of conjugal rights.

A division bench of Justice S Vaidyanathan and Justice N Anand Venkatesh observed that the single judge, while deciding the civil revision petitions, collaterally went into the findings of a division bench made in habeas corpus plea, and virtually set at naught the custody, that was granted by the division bench in favour of the father. 

Court underscored that the issue with regard to the custody of the children was not even the subject matter before the single judge and it had absolutely no relevance while deciding the civil revision petitions, which were filed to strike off the proceedings initiated by the respondent under the Domestic Violence Act and for restitution of conjugal rights.

In view of the same, court held, 

"That apart, there was no lis before the learned single Judge, seeking for the custody of the children. In view of the same, with due respect to the learned single Judge, the Hon'ble Judge could not have dealt with the subject matter of custody which was already decided in the H.C.P. and he cannot, in a petition filed under Article 227 of the Constitution of India, indirectly set aside the findings and directions issued by the Division Bench."

Court said that it is well settled that what cannot be done directly cannot be achieved indirectly by a collateral attack on the order passed by the division bench.

Court was dealing with a contempt petition filed against the respondent parties for non-compliance of the directions issued by a division bench of the high court in a habeas corpus plea. 

It came to light that the respondent parties had initiated domestic violence proceedings and proceedings for the relief of restitution of conjugal rights against the petitioner which became the subject matter of civil revision petitions. A single judge bench heard the civil revision petitions and came to the conclusion that the proceedings initiated by the respondent were maintainable.

However, while deciding the Civil Revision Petitions, the single judge bench also indirectly set aside the findings and directions issued by a division bench regarding custody of the children. 

Case Title: Kiran Kumar Chava v Usha Kiran

Statute: Domestic Violence Act, contempt application