Single-judge cannot override Division Bench order while hearing collateral proceedings: Madras High Court

A single-judge of the High Court cannot pass directions which are contrary to the directions of a division bench, the Madras High Court recently said [Kiran Kumar Chava v Usha Kiran]. .A bench of Justices S Vaidyanathan and N Anand Venkatesh, therefore, ordered that a portion of single-judge Justice SM Subramaniam's order that ran contrary to division bench's order in a domestic violence case, be "disregarded" since such observations were in excess of the jurisdiction conferred on the single-judge."We have to necessarily hold that 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 single-judge must be taken to be without jurisdiction and it vitiates the order as the one passed by a corum non judice," the order passed by the division bench on March 2 said.In the order passed on February 1, the single-judge had held that even persons, who were living temporarily in India, were entitled to invoke the Protection of Women from Domestic Violence Act of 2005 (DV Act) before Indian courts. The single-judge was hearing a revision petition filed by an American citizen praying that the DV Act proceedings initiated by his estranged wife before a Mahila Court in Chennai be quashed. He had told the court that the wife, an Overseas Citizen of India (OCI) card holder, and their twin sons had come to India last year on the pretext of a short visit to Chennai, but had stayed back in India, never to return to USA. He had also said that during this period, an American court had granted an ex parte divorce decree and had granted the twin boys' custody to their father. He had, therefore, argued that all connected proceedings that the woman had initiated in India cannot be sustained. He had also pointed out that last year, he had filed a habeas corpus petition before the Madras High Court and a division bench of the High Court had the time said that the boys should go back to America and live with their father. He had argued that in view of such order, the single-judge cannot re- examine the boys. .The single-judge had, however, said at the time that the nature and scope of the Habeas Corpus Petition was incomparable with the proceedings under the Hindu Marriage Act and Domestic Violence Act. Thus, right to seek relief under the special enactments by an aggrieved woman shall not be taken away and preventing the woman from doing the same would amount to infringement of her basic rights under the Constitution and the special enactments, it had said. It had also gone a step further and said that its "conscience" could not permit it to forcibly send the two boys to America..The husband then filed a contempt of court petition on March 2 which came to be heard by the division bench.The division bench held that the single-judge, in passing its order, had overreached its 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 High Court said.In this regard, it highlighted that the issue of custody was not even under challenge before the single-judge, and yet, it had sat on "considered judgement" of the division bench that had passed orders on the habeas corpus plea. "In view of the same, lending the language from the full bench as above, the observations and directions, issued by the learned single Judge, touching upon the custody of the children, must be disregarded," it said. The Court also noted that the passport of the two boys was expiring on March 6. It therefore, granted permission to the husband-father to take his sons to America and get their passport renewed. Senior Counsel G Rajagopal and advocate Sunita Kumari appeared for Chava. .[Read Judgment]