The Rajasthan High Court has held that single-judge of the High Court cannot pass directions contrary to the orders of a division bench.
A division bench of Justice S Vaidyanathan and Justice N Anand Venkatesh thus observed that single-judge's observation running contrary to division bench order in collatral order must be 'disregarded' in view of law laid down as it beyond jurisdiction of the former.
"The findings and the directions issued by the learned single Judge contrary to the discussion, observations and directions issued by the Division Bench must be held to be non-est in the eye of law. The learned single Judge should have exercised restraint and ought not to have sat on the considered judgment passed by a Division Bench and any orders passed by the Hon'ble Judge must be taken to be without jurisdiction and it vitiates the order as the one passed by a corum non judice" the Court remarked.
The single-judge bench in revision petition filed by an American citizen seeking quashing of proceedings initiated by his estranged wife before a Mahila Court in Chennai, ruled that that even persons, who were living temporarily in India, were entitled to invoke the Protection of Women from Domestic Violence Act of 2005 before Indian courts.
It was his case, that his wife who is an Overseas Citizen of India (OCI) card holder came to India last year with his twin sons on the pretext of a short visit to Chennai, but stayed back. Meanwhile, an American Court granted an ex parte divorce decree and handover the custody of kids to him, the father.
He argued that the proceedings initiated by his wife here in India are not sustainable in law. It was futher submission on his part that in a habeas-corpus filed by him with the High Court, a division bench has already ruled that the sons should go back to America and join him as ordered by the court of local jurisdiction therein and therefore it is not open for the single-judge to re-examine the issue.
The single-judge bench, however in the impugned order observed that the nature and scope of the Habeas Corpus Petition was incomparable with the proceedings under the Hindu Marriage Act and Domestic Violence Act and thus an aggrieved woman's right to seek relief under the special enactments cannot be taken away.
The judge said that doing so would amount to infringement of her basic rights under the Constitution and rights conferred on her by the special enactment.
The Court, in the present contempt petition, ruled in favour of the husband stating that single-judge extended his jurisdiction.
"It is too well settled that what cannot be done directly cannot be achieved indirectly by a collateral attack on the order passed by the Division Bench," the Court observed.
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