Petition under D V Act cannot be transferred to Family Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 10.09.2008

Coram

The Honourable Mr. JUSTICE K.MOHAN RAM

Crl. O.P. No.17122 of 2008
and M.P.Nos.1 to 3 of 2008

Capt. C.V.S.Ravi …. Petitioner
-Vs.-
Mrs. Ratna Sailaja …. Respondent

Prayer:- Criminal Original Petition filed under Section 482 of Cr.P.C. for a direction to withdraw M.P.No.1038 of 2008 on the file of the XVII Metropolitan Magistrate, Saidapet, Chennai and transfer the same to the file of the II Additional Family Court Judge, Chennai, to be tried along with M.C.No.57 of 2008 and M.P.No.198 of 2008.

For Petitioner : Mr. S.A.Rajan, for M/s. K.Viswanathan
For Respondent : Mr. George Cheriyan

– – –

O R D E R

The petitioner in the above Criminal Original Petition is the husband of the respondent herein. The respondent herein has filed M.C.No.57 of 2008 before the II Additional Family Court, Chennai, under Section 125 of the Criminal Procedure Code seeking maintenance and she has also filed M.P.No.198 of 2008 claiming interim maintenance. Subsequently the respondent has also filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) (hereinafter referred to as the Act ) claiming reliefs under Sections 18, 19, 20, 21 and 22 of the Act before the XVII Metropolitan Magistrate Court, Saidapet, Chennai, and the same has been taken on file as M.P.No.1038 of 2008. The above Criminal Original Petition has been filed by the husband-the petitioner herein for transferring M.P.No.1038 of 2008 from the file of the XVII Metropolitan Magistrate, Saidapet, Chennai to the file of the II Additional Family Court, Chennai, to be tried along with M.C.No.57 of 2008 and M.P.No.198 of 2008 on the ground that the respondent herein is seeking monetary reliefs before both the forums and the issues to be decided in both the cases are same and if both the cases are heard by different courts it may lead to delivery of conflicting judgments and multiplicity of proceedings.

2. The transfer sought for by the petitioner is strongly opposed by the respondent herein on the ground that the monetary relief claimed by the respondent in the petition filed before the Family Court under Section 125 of the Cr.P.C. and the monetary relief claimed by her under the provisions of the Act are different since the respondent has claimed several other reliefs under Sections 18, 19, 20, 21 and 22 of the Act which reliefs are beyond the scope of Section 125 of the Cr.P.C. Further the objection raised by the respondent is that the proceedings initiated under Section 12 of the Act and pending before the learned Judicial Magistrate cannot be transferred to the Family Court since there is no provision in the Act or in the Cr.P.C. to order such transfer.

3. Heard the learned counsel on either side.

4. Learned counsel for the petitioner submitted that under Section 26 of the Act any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil Court, family Court or a criminal Court; as per Section 28 of the Act all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Cr.P.C. and as per Section 28 (2) of the Act, the Court can lay down its own procedure; proceedings under Section 125 of the Cr.P.C. and Sections 18, 19, 20 and 22 of the Cr.P.C. are summary proceedings; the proceedings under Section 125 Cr.P.C. cannot be transferred to the file of the Magistrate Court in view of Sections 7 and 8 of the Family Courts Act; in the light of the provisions contained in Section 26 of the Act a proceeding under Section 18, 19 and 20 can also be tried by the Family Court and therefore there is no legal bar for transferring the proceedings initiated under Section 12 of the Act before the Magistrate to the Family Court. Learned counsel further submitted that in both the proceedings the cause of action, issues and parties are common and the reliefs sought for are also common and therefore both the proceedings can be disposed of if both the cases are tried together.

5. Learned counsel for the petitioner submitted that the following observations namely:-

there is no provision anywhere in the act which permits or authorizes transfer of a petition which is pending before the Magistrate to any other Court. Powers under the Cr.P.C. do not evidently clothe the superior Courts with power to transfer pending before a criminal Court to any other Civil Court .
made by the learned single Judge of the Kerala High Court in the decision reported in 2007 Crl.L.J. 2604 (Kerala) = 2007 (2) MLJ 209 (M.A.Mony v. M.P.Leelamma and Anr.) may not be a good law in the light of the decision of the Division Bench reported in 1991 Crl.L.J. 1838 (DB) (Munna Lal v. State of U.P.). Learned counsel for the petitioner further submitted that since both the proceedings pending before the Family Court as well as the Magistrate Court are summary proceedings and if they are heard together lot of time can be saved and the petitioner, who is employed as a Senior Commander with the King Fisher Airlines, who is based in Bangalore has to travel to Chennai for the Court hearings and if the cases are heard separately by two courts it will be difficult for him to attend the hearings by coming from Bangalore to Chennai. On the other hand if both the proceedings are heard and disposed of together no hardship will be caused to the respondent who is residing at Chennai.

6. Learned counsel for the respondent strongly opposed the transfer sought for by the petitioner and made the following submissions:-

As per Section 27 of the Act, the Court of the Judicial Magistrate of the First Class or the Metropolitan Magistrate within the local limits of which the aggrieved person permanently or temporarily resides or carries on business or is employed or the cause of action has arisen shall be the competent court to grant a protection order and other orders under this Act; the Family Court does not have jurisdiction to try cases filed under Section 12 of the Act; the Act or the Civil Procedure Code or the Criminal Procedure Code do not provide for transfer of an application filed under Section 12 of the Act before the Metropolitan Magistrate Court to any other civil, criminal or family Courts; the Act provides for speedily disposal of the applications filed under Section 12 of the Act to give immediate relief to the aggrieved person and if the application pending before the Metropolitan Magistrate Court is transferred to the Family Court its disposal will be delayed and the respondent will loose the benefit of speedily disposal available under the Act. Learned counsel for the respondent further submitted that as against the order passed under Section 12 of the Act an appeal lies to the Court of Session and thereafter a right of revision to the High Court is available whereas as against an order passed by a Family Court, an appeal lies only to the Division Bench of the High Court and therefore if an application filed under Section 12 of the Act is transferred from the file of the Metropolitan Magistrate Court to the file of the Family Court and if an adverse order is passed against the respondent, the respondent will lose her right to file an appeal to the Sessions Court and further the right to file a revision before this Court.

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7. Learned counsel for the respondent further submitted that though as per Section 26 of the Act any relief available under Sections 18, 19, 20, 21 and 22 of the Act may be sought for in addition to and along with any other relief that the aggrieved person may seek in any legal proceedings initiated before the Family Court, it does not mean that an application filed under Section 12 of the Act can be either filed before the Family Court directly or an application already filed and pending before the Metropolitan Magistrate Court could be transferred to the file of the Family Court to be heard with the legal proceedings already pending on the file of the Family Court. In support of his above said contentions the learned counsel relied upon the following decisions:-

(i) 2007 Cri. L.J. 2604 (Kerala) = 2007 (2) KLJ 209 (referred to supra). In this decision, in paragraph 10, it is observed as follows:-

10. The learned counsel submits that in view of the stipulations in Section 26 (1), there cannot be a bar against transfer of a clim under Section 12 to any such civil Court or Family Court. The counsel further submits that Section 7 (2) (b) of the Family Courts Act, which I extract below, is also sufficient to indicate that the Family Court has jurisdiction to deal with a claim under Section 12.

Section 7. Jurisdiction (1) subject to the other provisions of this Act, a Family Court shall –

xx xx xx

(2) Subject to the other provisions of the Act, a Family Court shall also have and exercise –

(a) xxx xxx

(b) such other jurisdiction as may be conferred on it by any other enactment.

I am unable to accept this argument at all. Though under Section 7 (2) (b), the Family Court is clothed with authority to deal with matters, which, under any other law the Family Court can consider, it is significant that the Family Court is not invested with any power to deal with an application under Section 12 of the DVA. That reliefs under Sections 18 to 22 can be claimed before the Family Court in any other proceedings is a world different from the contention that a petition under Section 12 can be considered and disposed of by the Family Court. There is nothing in the language, scheme or purport of the DVA, which can even remotely suggest that a Civil Court or Family Court is competent to deal with an application under Section 12 and grant reliefs under Sections 18 to 22 in such application under Section 12. Of course, the Family Court and the Civil Court have the jurisdiction in a proceedings pending before it to grant the reliefs under Sections 18 to 22 of the DVA also. But certainly there is no power for the Family Court or Civil Court to deal with an application under Section 12. They cannot entertain an application under Section 12 neither when it is originally filed before them nor can the superior Courts entertain any jurisdiction to deal with an application under Section 12. They cannot entertain an application under Section 12 neither when it is originally filed before them nor can the superior Courts entertain any jurisdiction to transfer such petition under Section 12 pending before the Magistrate to such Civil or Family Court so that such Court can entertain jurisdiction to deal with an application under Section 12. The decision of the Legislature to confer the right to redressal through the criminal Court cannot obviously be denied to or taken away from an aggrieved woman by such an order of transfer by the superior Court. That she can claim the reliefs under the DVA through the civil Court also is not reason to deprive her of the vested statutory right of procedure to claim enforcement through the Criminal Court. I, therefore, take the view that except the Magistrate clothed with authority to deal with petitions under Section 12 of the DVA, no Civil Court or Family Court has jurisdiction to deal with an application under Section 12. Consequently this Court cannot direct transfer of a petition under Section 12 pending before the Magistrate to the Family Court and thus clothe the Family Court with jurisdiction to consider such application under Section 12. The prayer for transfer cannot hence succeed .

(ii) AIR 2008 Chh 1 (Smt. Neetu Singh v. Sunil Singh) (DB). In this decision, the Division Bench of the Chattisgarh High Court, in paragraph 9, has observed as under:-

9. In view of the above scheme of the Act, specially as per the provisions of Section 26 of the Act, the appellant herein is entitled to seek relief available to her under Sections 18, 19, 20, 21 and 22 of the Act, 2005 in the maintenance proceeding pending in the Family Court, Bilaspur. But the appellant is required to move an application under Section 26 read with Section in which she is seeking relief. However, instead of doing that, the appellant moved an independent fresh application under Section 12 of the Act, 2005 which can be entertained only by the Magistrate having jurisdiction. An application under Section 12 cannot be filed before Family Court because proceeding under Section 12 of the Act, 2005, as per the scheme of the Act, has to be filed before the Magistrate competent to entertain the application .

(iii) Order dated 02.04.2008 passed in Crl.O.P.No.7156 of 2007 by Mr.Justice M.Jeyapaul rendered in the case of Dennison Paulraj and Ors. v. Mrs. Mayawinola. In this case, the learned Judge of this Court while considering the following question namely whether the application filed under Section 12 of the Act can be transferred to the file of the Family Court, to be enquired into along with the proceedings initiated for Judicial separation has held as under:-

9. Section 26 of the Act gives liberty to the affected person to seek reliefs under Sections 18, 19, 20, 21 and 22 of the Act in any legal proceedings before a Civil Court, Family Court or Criminal Court. It is not necessary for the affected person to invoke only the Act to seek protection from domestic violence. Even part of the reliefs can be sought under the Act. There is no bar for the aggrieved person to seek the other part of the reliefs under the Act before a Civil Court or a Family Court or a Criminal Court.

10. It is true that the Family Court where the proceedings for judicial separation initiated by the first petitioner is pending as against the respondent is also empowered to address the grievance of act of domestic violence by an aggrieved person. But, the respondent alleged to have been affected by the act of domestic violence would contend that she prefers to conduct the summary proceedings initiated by her under the Act only before the learned Judicial Magistrate II, Poonamallee. After all, the proceedings under the Protection of Women from Domestic Violence Act, 2005 is a summary one in nature. It does not require lengthy trial engaging both the parties for quite a long time. But, the proceedings initiated for judicial separation will take its own time. Therefore, transferring this matter to the Family Court may not serve the purpose, it is found.

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(iv) Order dated 28.11.2007 passed in Crl.O.P.No.32475 of 2007 (Amar Kumar Mahadevan v. Karthiyayini). In the above said order, I had an occasion to consider the scope and purport of the Protection of Women from Domestic Violence Act, 2005 and in this order the following observations have been made:-

2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a women is subjected to cruelly by her husband or his relatives, it is an offence under section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.

3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

8. In construing the provisions of the Act, the Court has to bear in mind that it is a beneficent piece of social welfare legislation aimed at promoting and securing the well-being of the aggrieved persons and the Court will not adopt a narrow interpretation which will have the effect of defeating the very object and purpose of the Act. It must be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim.

9. Keeping the above said principles in mind, if the provisions contained in Sections 12 and 13 of the Act are considered with reference to the contentions put forth by the learned counsel for the petitioner, this Court without any hesitation comes to a conclusion that the said contentions put forth by the counsel for the petitioner have to be rejected at a threshold. A reading of Section 12(4) of the Act shows that the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. Section 12(5) of the Act stipulates that the Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing. Since the Act provides for the disposal of the application filed by the aggrieved person in a time bound manner, to achieve that object, certain enabling provisions have been incorporated under Section 13 of the Act. Section 13 of the Act provides that a notice of the date of hearing fixed under Section 12 of the Act shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt. A declaration of service of notice made by the Protection Officer in the form set out by the Central Government by rules shall be a proof of service of notice. Since as per Section 12(5) of the Act, it is the bounden duty of the Magistrate to make an endeavour to dispose of the application within a period of sixty days from the date of its first hearing, unless the service of notice is completed at the earliest, it may not be possible to dispose of the application within the above said stipulated time. Therefore, Section 13 of the Act provides for service of notice on the respondent through the Protection Officer and such notice shall be served within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate. In this context, it will be useful to refer Section 28 of the Act, which reads as follows:-

28. Procedure- (1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under subs-section (2) of Section 23.

8. Learned counsel for the respondent submitted that in the light of the law laid by various High Courts in the above said decisions it is well settled that an application filed under Section 12 of the Act cannot be transferred to the file of the Family Court, simply because earlier to the filing of an application under Section 12 of the Act the respondent has already filed an application under Section 125 Cr.P.C. claiming maintenance.

9. By way of reply, the learned counsel for the petitioner submitted that the decision of the Kerala High Court reported in 2007 Crl.L.J. 2604 (Kerala) (referred to supra) laying down that there is no provision in the Domestic Violence Act authorising transfer of a petition pending before the Magistrate to any other Court and powers under the Cr.P.C. do not clothe the superior Courts with a power to transfer petitions pending before the criminal Court to any other Civil Court may not be correct in the light the law laid down by the Division Bench in the decision reported in 1991 Crl.L.J. 1838 (DB) (referred to supra). In this decision it has been held that the High Court has power under Sections 22 to 24 of the Cr.P.C. to transfer a case relating to the matters dealt with by explanation to sub-s (1) of Sec. 7 of the Act and likewise has powers u/s. Sec. 407 Cr.P.C. to transfer a case relating to Chapter IX, Cr.P.C.

10. Learned counsel for the petitioner further based reliance on the following observation of the decision of the Chattisgarh High Court, reported in AIR 2008 Chh 1 (referred to supra) :-

…Still the appellant is entitled to move an application under Section 26 of the Act, 2005 before the Family Court in the maintenance proceeding said to be pending before that Court .

and the learned counsel further submitted that the decision of Mr. Justice M.Jeyapaul in Crl.O.P.No.7156 of 2007 is distinguishable on facts and submitted that in that case the learned Judge has already held that the proceedings initiated for judicial separation before the Family Court are not summary in nature and therefore an application filed under Section 12 of the Act which is summary in nature cannot be transferred to the file of the Family Court. But in this case the proceedings filed under Section 125 of the Cr.P.C. seeking maintenance are pending before the Family Court as well as the petition filed under Section 12 of the Act which is pending before the learned magistrate Court are both summary in nature and therefore the said observation of the learned Judge is not applicable to the facts of this case. He further submitted that the decision rendered in Crl.O.P.No.32475 of 2007 does not relate to the issue that arises for consideration in the above Criminal Original Petition and therefore it is of no assistance to the respondent.

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11. I have carefully considered the said submissions made by the learned counsel on either side. The decisions reported in 2007 Crl.L.J. 2604 (Kerala) (referred to supra), AIR 2008 Chh 1 (referred to supra) and the order dated 02.04.2008 rendered in Crl.O.P.No.7156 of 2007 squarely covers the issue that arises for consideration in the above petition. I am in respectful agreement with the view taken by the learned Judges in the above decisions that a petition filed under Section 12 of the Act cannot be transferred from the file of the learned Magistrate to be heard along with a maintenance petition already filed by the wife and pending before a Family Court.

12. As elaborated and held by me in the order dated 28.11.2007 rendered in Crl.O.P.No.32475 of 2007 the Act has been enacted to provide for a remedy under the Civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society and the Act aims at providing speedy remedy to victims of domestic violence and to achieve that object special procedure has been provided for in the Act itself and the Act further provides for the disposal of the application filed by the aggrieved person in a time bound manner and to achieve that object certain enabling procedures have been set-out under Section 13 of the Act. As per Section 12 (5) of the Act, it is the bounden duty of the Magistrate to make an endeavour to dispose of the application within a period of sixty days from the date of its first hearing, but no such time limit has been prescribed in Section 125 of the Cr.P.C., for the disposal of the petitions filed under Section 125 of the Cr.P.C. Though both the proceedings may be summary in nature this enabling provision is available only under the Domestic Violence Act to the Magistrate hearing an application under Section 12 of the Act. In this case, a perusal of the counter affidavit filed by the respondent shows that the respondent had approached the protection officer on 29.02.2008 and after conducting enquiry the protection officer has filed a domestic incident report under the provision of Section 9(b) read with Section 37 (2) (c) of the Act before the XVII Metropolitan Magistrate Court on 31.03.2008 and the learned Magistrate has fixed the date of hearing of the case on 04.08.2008 and from 25.04.2005 the case is pending before the learned Magistrate because of the adjournments taken by the petitioner herein and because of that the learned Magistrate was not in a position to pass orders within the time stipulated in the Act and if at this stage, the petition is transferred to the file of the Family Court, its disposal will be further delayed which will in effect defeat the very object sought to be achieved by the Domestic Violence Act and on that ground also this Court is not inclined to order transfer.

13. In the decision reported in 1991 Crl.L.J. 1838 (DB) (referred to supra) and relied on by the learned counsel for the petitioner the question that came up for consideration before the Division Bench was as to whether the High Court has jurisdiction to transfer the case from one family Court to another Court in exercise of powers of transfer under C.P.C. and Cr.P.C. While considering that issue the Division Bench in paragraphs 14 and 15 of the said decision has held as under-
14. Family Court is a court, which decides the disputes in exercise of the State s judicial power conferred on it by a statute in a judicial manner and declare the rights of the parties. Parties before the Family court are entitled to be heard in support of their case and they are also entitled to adduce evidence in order to prove their claim, they can cross-examine each other and adduce evidence. The Family court is obliged under law to settle and decide the dispute on the basis of the evidence produced by the parties. Family Court has all the attributes and satisfies all the ingredients of a Court. It has been declared by S.7 of the Act to be a distinct court or subordinate civil court to which provisions of the C.P.C. and Cr.P.C. have been applied by S.10 of the Act. It will not cease to be a court merely because some restrictions are imposed by Ss.11 to 16 of the Act.

15. Looked at from every single Family Court is a Court and as such, High Court has powers u/Ss. 22 to 24 of the C.P.C. to transfer a case relating to the matters dealt with by explanation to sub-s. (1) of S.7 of the Act and likewise has powers u/S. 407 of the Cr.P.C. to transfer a case relating to Chapter IX, Cr.P.C.

Thus it is clear that the question of transfer of an application filed under Section 12 of the Act from the file of a Judicial Magistrate to the file of a Family Court was not an issue that came up for consideration before the Division Bench. Therefore, that decision has no applicability to the facts of this case. Here transfer is not sought for from one Family Court to another Family Court and the transfer sought for in this case is from the file of the Magistrate Court to the file of the Family Court. The Domestic Violence Act does not contain any provisions clothing jurisdiction on the Family Court to entertain an application filed under Section 12 of the Act. It may be true that the reliefs available under Sections 18 to 22 of the Act may also be claimed in a pending proceeding before the Family Court already initiated by the aggrieved person but from that it cannot be inferred that an independent application under Section 12 of the Act can be filed before the Family Court. So only an option is given to the aggrieved person to claim the reliefs available under Sections 18 to 22 of the Act in a pending legal proceedings initiated by such aggrieved person before the Family Court and therefore from such a liberty given to the aggrieved person an inference cannot be drawn to the effect that a pending application filed under Section 12 of the Act before the learned Magistrate can be transferred to the file of the Family Court. Unless the Court has been specifically empowered to entertain an independent application filed under Section 12 of the Act, transfer of a pending application filed under Section 12 of the Act from the file of the learned Magistrate to the file of the Family Court cannot be ordered.

14. For the aforesaid reasons the submissions made by the learned counsel for the petitioner cannot be countenanced and the transfer sought for by the petitioner cannot be ordered.

15. In such view of the matter the above Criminal Original Petition fails and the same is dismissed.

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