SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Abhijeet Prabhaka Jail vs Manisha Abhijeet Jail And Anr on 5 June, 2018

(1)APPLNNo.7322017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.732 OF 2017

Abhijeet Prabhakar Jail … Applicant
V/s.
Manisha Abhijeet Jail Anr. … Respondents

…..

Smt.Seema Sarnaik with Mr.Ameya Tamhane, Advocate for the
Applicant.

Mr.Nitin Deshpande, Advocate for the Respondent No.1.

Mr.A.R.Kapadnis, APP for the Respondent No.2/State.

….

CORAM : A.M.BADAR J.

DATED : 5th JUNE 2018.

ORAL ORDER :

1 This is an application under Section 407 of the

Criminal Procedure Code for transfer of Criminal Application
bearing No.523 of 2015 filed by the Respondent No.1/wife from
the Court of the learned Judicial Magistrate First Class, Pune to
the Family Court at Pune.

2 The Petitioner/husband filed a divorce petition bearing

Gaikwad RD 1/10

::: Uploaded on – 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

No.603 of 2015 against the Respondent No.1/wife under Section
13(1)(i) and (ia) for claiming divorce from wife/respondent No.1
Manisha and the same is pending for adjudication at the Family
Court, Pune. The Respondent No.1/wife has filed Criminal
Application bearing No.523 of 2015 under
Section 12 of the
Protection of Women from
Domestic Violence Act, 2005
(hereinafter referred to as “
Domestic Violence Act, 2005″ for the
sake of brevity) in the Court of the learned Judicial Magistrate
First Class, Pune for claiming reliefs under the said Act. By the
instant petition, the Petitioner/husband is seeking transfer of the
proceedings under the
Domestic Violence Act, 2005 initiated by
the Respondent/wife from the Court of the learned Judicial
Magistrate First Class, Pune to the Family Court at Pune, where his
petition for divorce against the respondent/wife is pending.

3 Heard the learned Advocate appearing for the
Petitioner/husband. She vehemently argued that evidence in both
these cases is similar and in order to avoid multiplicity of
proceedings, the proceedings under the
Domestic Violence Act,
2005 needs to be transferred to the Family Court at Pune, where
the divorce petition filed by the Petitioner/husband is pending.
The learned Advocate placed reliance on
Section 7 of the Family
Court Act, 1984, so also on
Section 26 of the Domestic Violence
Act, 2005 and argued that the Family Court has powers to
entertain and dispose of the proceedings under the Domestic

Gaikwad RD 2/10

::: Uploaded on – 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

Violence Act, 2005. For this purpose, reliance is placed on Section
26 of the Domestic Violence Act, 2005 as well as Judgment of this
Court in
Minoti Subhash Anand v. Subhash Manoharlal Anand1
as well as Order dated 22nd March 2018 of this Court in the matter
of Mr.Ujwal Singh Manhas v. Mrs.Jyostna Ujwal Shahi Manhas
Ors.2 The learned Advocate further placed reliance on the
Judgment of this Court in the matter of
Mrs.Pramodini Vijay
Fernandes v. Mr.Vijay Fernandes3 in order to demonstrate that
the Judge of the Family Court has all powers of the Judicial
Magistrate First Class.

4 The learned Advocate for the Respondent No.1/wife
opposed the application by contending that there is no question of
causing inconvenience to the parties because of pendency of
proceedings before two different forums which are situated in the
same premises. He argued that allowing the application for
transfer would amount to curtailing statutory right of the wife to
prefer an appeal challenging Orders passed in the
Domestic
Violence Act proceedings before the Sessions Court at Pune. For
this purpose, reliance is placed on the Judgment of the
Honourable Apex Court in the matter of Garikapati Veeraya v.

N.Subbiah Choudhry Ors.4

1 2016(1) ALL MR 408.
2 Criminal Application No.561 of 2017.
3 Writ Petition No.5252 of 2009 decided on 17th February 2010.
4 AIR 1957 S.C. 540.

Gaikwad RD 3/10

::: Uploaded on – 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

5 I have carefully considered the rival submissions and

also perused the Judgments relied by both the parties.

6 Undoutedly, the Family Court has jurisdiction to grant
relief under
Sections 18 to 22 of the Domestic Violence Act, 2005
vide
Section 26 of the said Act. In the matter of Mrs.Pramodini
Fernandes (supra), as seen from paragraph 6 of the said
Judgment, an order came to be passed under
Sections 18, 19, 20,
21 22 of the Domestic Violence Act by the Family Court in that
matter. In the matter of Minoti Anand (supra), it is held that the
parties are not in dispute that the reliefs claimed by the applicant
therein before the learned Metropolitan Magistrate under the
provisions of the
Domestic Violence Act can be granted by the
Family Court. In the matter of Ujwal Singh Manhas (supra), it
was observed that
Section 26 of the Domestic Violence Act gives
jurisdiction to the Family Court to grant relief under
Sections 18 to
22 of the said Act to the aggrieved person.

7 Under Section 7(2)(b) of the Family Court Act, 1984,
the Family Court is empowered to deal with matter which under
other law the Family Court can consider. It can exercise such
other jurisdiction as may be conferred on it by other enactment.
At this juncture, it is necessary to quote
Section 26 of the Domestic
Violence Act, which reads thus :

Gaikwad RD                                                                         4/10

::: Uploaded on - 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

"26. Relief in other suits and legal proceedings.--
(1) 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,
affecting the aggrieved person and the respondent
whether such proceeding was initiated before or after
the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be
sought for in addition to and along with any other
relief that the aggrieved person may seek in such suit
or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the
aggrieved person in any proceedings other than a
proceeding under this Act, she shall be bound to
inform the Magistrate of the grant of such relief."

Thus, it is clear that the reliefs provided for under
Sections 18 to 22 of the Domestic Violence Act can be claimed
before the Family Court in any other proceedings in addition to
and along with any other relief that the aggrieved person may seek
in such legal proceedings before the Family Court. This makes it
clear that the Family Court has jurisdiction in a proceeding
pending before it to grant reliefs under
Sections 18 to 22 of the
Domestic Violence Act.

Gaikwad RD                                                                             5/10

::: Uploaded on - 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

8 However, the application claiming reliefs including

those provided for under Sections 18 to 22 of the Domestic
Violence Act is required to be filed before the Magistrate which
alone has jurisdiction to entertain it. No doubt, an aggrieved
person/woman can independently claim such reliefs available to
her under the
Domestic Violence Act through Civil Court or Family
Court, in addition to the relief claimed from those Courts in such
proceedings. However, her right to file the proceeding before the
Magistrate under
Section 12 of the Domestic Violence Act cannot
be made sterile by transferring such already initiated proceedings
to the Family Court. The proceedings initiated under
Section 12
of the Domestic Violence Act before the Court of competent
jurisdiction i.e. the Judicial Magistrate First Class, Pune cannot be
ordered to be transferred to the Family Court at Pune. Those
proceedings will have to be entertained and decided by the
learned Judicial Magistrate First Class, Pune itself.
The Domestic
Violence Act has been enacted to provide for a remedy which is
intended to protect the woman from being victim of domestic
violence and to prevent the occurrence of domestic violence in the
society.
The Domestic Violence Act aims at providing speedy
remedy to victims of domestic violence and necessary provisions
are made in the said Act itself to achieve this object. It provides
for disposal of such proceedings in the time found manner within
a period of sixty days from the date of first hearing. Order passed
by the Magistrate in a proceeding under the
Domestic Violence Act

Gaikwad RD 6/10

::: Uploaded on - 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

can be challenged in an appeal to the Court of Sessions. However,
Order passed by the Family Court can be challenged in an appeal
before the Division Bench of the High Court. The Family Court
cannot entertain an independent application filed under
Section
12 of the Domestic Violence Act.

9 At this juncture, it is apposite to quote the provisions
under
Section 29 of the Domestic Violence Act, 2005, which reads
thus :

"29. Appeal.--There shall lie an appeal to the Court of
Session within thirty days from the date on which the order
made by the Magistrate is served on the aggrieved person
or the respondent, as the case may be, whichever is later.

10 In the case in hand, proceedings initiated by the
Petitioner/husband are pending before the Family Court at Pune,
whereas the proceedings initiated by the Respondent/wife are
pending before the Court of Judicial Magistrate First Class, Pune,
which are virtually situated in one campus alone. The provisions
of
Domestic Violence Act, 2005 and more particularly Section 29
thereof provides a right of appeal to the Court of Sessions from the
Orders passed by the Magistrate in the said proceedings.
Thereafter, the aggrieved woman has right of revision before this
Court. In the matter of Garikapati Veeraya (supra) relied by the
learned Advocate for the Respondent No.1, the Honourable Apex

Gaikwad RD 7/10

::: Uploaded on - 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

Court has stated that the right of appeal is not merely the matter
of procedural formalities, but it is a substantive right of the
parties. Relevant portion of paragraph 23 of the said Judgment
read thus :

"23. From the decisions cited above the following
principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and
second appeal are really but steps in a series of
proceedings all connected by an intrinsic unity and are to
be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure
but is a substantive right.

(iii) The institution of the suit carries with it the implication
that all rights of appeal then in force are preserved, to the
parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to
enter the superior court accrues to the litigant and exists as
on and from the date the lis commences and although it
may be actually exercised when the adverse judgment is
pronounced such right is to be governed by the law
prevailing at the date of the institution of the suit or
proceeding and not by the law that prevails at the date of
its decision or at the date of the filing of the appeal."

Gaikwad RD                                                                              8/10

::: Uploaded on - 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

11 Transferring the proceedings initiated by the wife

under the Domestic Violence Act, 2005 before the learned Judicial
Magistrate First Class, Pune to the Family Court at Pune would
certainly deprive the Respondent/wife from availing statutory
right of appeal as provided by
Section 29 of the Domestic Violence
Act, 2005. There is no question of inconvenience to the parties as
both these Courts are virtually situated in one campus alone.

Ultimately, the Respondent/wife is the master of litigation
initiated by her and she alone is entitled to choose the forum from
which she desires to claim relief. The Respondent/wife would be
deprived of her statutory right of appeal to the Sessions Court,
Pune by transfer of her proceedings under the
Domestic Violence
Act to the Family Court. There may not be any inconvenience to
the parties to both these proceedings as those are pending before
two different forums which are virtually situated in the same
campus. Moreover, in the case in hand if request of the
petitioner/husband is acceded and the proceedings under
Section
12 of the Domestic Violence Act are transferred from the file of the
learned Judicial Magistrate First Class, Pune to the Family Court,
Pune, then the respondent/wife will certainly suffer prejudice as
she will have to challenge adverse Orders in her proceedings, if
any, passed by the Family Court, Pune before this Court at
Mumbai by incurring huge expenses apart from undertaking
ordeal of travelling to Mumbai for attending such appeal.

Gaikwad RD                                                                        9/10

::: Uploaded on - 13/06/2018 15/06/2018 00:00:47 :::
(1)APPLNNo.7322017

12 In view of reasons set out in foregoing paragraphs, the
application is devoid of merits. The application is, therefore,
dismissed.

13 At this stage, the learned Advocate for the

Petitioner/husband prays for continuation of stay granted by this
Court earlier for a period of seven weeks. Though the learned
Advocate for the Respondent No.1/wife had opposed this request,
in the interest of justice, stay granted earlier is continued for a
period of seven weeks from today.

(A.M.BADAR J.)

Gaikwad RD 10/10

::: Uploaded on - 13/06/2018 15/06/2018 00:00:47 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh