The Kerala High Court held that proceedings under the Domestic Violence Act are civil in nature and part of a beneficial legislation, and that a Magistrate who has power to dismiss a DV Act petition for default also has implied power to restore it upon sufficient cause being shown.
The Kerala High Court has held that a Magistrate has implied power to restore a petition filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, after its dismissal for default.
Justice C. Pratheep Kumar held that proceedings under the DV Act are civil in nature. He also said that the Act is a beneficial legislation. Courts must therefore interpret it purposively to ensure effective protection to the aggrieved person.
The judgment was delivered on March 10, 2026, in Dileep K.G. v. Swapna Dileep & Ors., OP(Crl.) No.922 of 2024.
Dileep K.G. filed the original petition under Article 227 of the Constitution of India.
He was the first respondent in M.C. No.36 of 2022 before the Judicial First Class Magistrate Court, Kakkanad.
Through the petition, he challenged the Magistrate’s order in CMP No.2774 of 2024. By that order, the Magistrate restored the M.C. that had earlier been dismissed for default.
The respondents before the High Court were the petitioners before the Magistrate.
They had filed M.C. No.36 of 2022 under Section 12 of the DV Act.
On September 30, 2024, the Magistrate dismissed the petition. The order noted that the petitioners had failed to appear for adducing evidence despite several opportunities.
Later, they filed an application under Order IX Rule 9 of the Code of Civil Procedure. They sought restoration of the M.C.
The respondent before the Magistrate objected to the restoration application.
He argued that the Magistrate had no review power.
The Magistrate rejected the objection and allowed the application. It held that proceedings under Section 12 of the DV Act form part of a welfare legislation. Such proceedings, the Magistrate said, should receive liberal interpretation.
Aggrieved by that order, the first respondent approached the High Court.
The High Court considered whether a Magistrate can restore a petition filed under Section 12 of the DV Act after dismissing it for default.
Although notice was served on the respondents, they did not appear before the High Court.
Counsel for the petitioner argued that proceedings under Section 12 of the DV Act are criminal proceedings.
He submitted that the Magistrate has no review power. Therefore, according to him, the Magistrate could not restore the M.C. after dismissing it for default.
The petitioner relied on Farhan v. State of Kerala, 2024 (6) KLT 75.
Based on that decision, he argued that criminal courts have no inherent power. He also submitted that criminal courts cannot review, modify, or recall their own orders unless the law grants such power.
The Court referred to Section 28 of the DV Act.
It noted that Section 28(1) says proceedings under Sections 12, 18, 19, 20, 21, 22 and 23, and offences under Section 31, shall follow the Code of Criminal Procedure.
However, Section 28(2) gives flexibility to the Magistrate. It allows the Magistrate to lay down its own procedure for disposal of an application under Section 12 or Section 23(2).
The Court also referred to Section 26 of the DV Act. This provision allows parties to seek reliefs under Sections 18 to 22 in proceedings before a Civil Court, Family Court, or Criminal Court.
The High Court relied on Badshah v. Urmila Badshah Godse, 2013 KHC 4831.
In that case, the Supreme Court held that courts may consider the purpose of a statute and the mischief it seeks to prevent.
Where two interpretations are possible, courts must prefer the one that advances the object of the law.
The Court also referred to Preeju David v. Minor Mebel, 2017 (4) KLT 1162.
In that case, the Kerala High Court held that criminal courts can recall an order dismissing a petition under Section 125 CrPC for default.
The Court in Preeju David had also considered Balakrishnan v. Rajamma, 1979 KHC 280. It held that the earlier view, which denied such inherent power to criminal courts, was no longer good law.
Justice Pratheep Kumar further relied on Karun Prasad & Others v. Keerthana & Another, 2021 SCC OnLine Ker 15052.
That case involved a similar challenge to an order restoring a petition under Section 12 of the DV Act. The Kerala High Court had held that restoration of a DV Act petition falls within the Magistrate’s powers.
The Court noted that the DV Act provides a civil remedy through a criminal court.
Parliament enacted the law to secure constitutional guarantees under Articles 14, 15 and 21 of the Constitution.
The Act, the Court said, is a beneficial legislation. It aims to redress the grievances of women and children. It also advances social justice by addressing domestic violence.
Justice Pratheep Kumar held that proceedings under the DV Act are civil in nature.
For that reason, courts must adopt a purposive interpretation while applying the Act.
Such an approach, the Court said, ensures effective protection to aggrieved persons.
The Court held that a Magistrate has implied power to restore a DV Act petition dismissed for default.
Such power helps advance justice. It also ensures that the protection under the Act remains effective.
The Court further held that Section 362 CrPC does not bar the Magistrate from exercising this power.
The Court also referred to Maria Mercy Suzana Fernandes v. Francisco Monte Piedade Cruz and Ors., MANU/MH/0687/2018.
In that case, the Bombay High Court held that a Magistrate who can dismiss a case for default also has inherent power to restore it upon sufficient cause.
The Kerala High Court also referred to Jaydipsinh Prabhatsinh Jhala and Ors. v. State of Gujarat and Ors., MANU/GJ/0850/2009.
In that decision, the Gujarat High Court held that proceedings under the DV Act are predominantly civil in nature. It also held that the Magistrate need not follow rigid criminal procedure in such cases.
The High Court held that effective protection under the DV Act requires a practical approach.
A Magistrate who can dismiss a case for default can also restore it when sufficient cause is shown.
The Court found no irregularity or illegality in the Magistrate’s order restoring M.C. No.36 of 2022.
Accordingly, the Kerala High Court dismissed OP(Crl.) No.922 of 2024.
It upheld the order of the Judicial First Class Magistrate Court, Kakkanad, restoring the DV Act petition that had been dismissed for default.
