Kerala High Court
Anish Antony Thimothy vs Neetha on 17 June, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(Crl.).No. 41 of 2011()
1. ANISH ANTONY THIMOTHY, AGED 33 YEARS,
... Petitioner
2. DHALEELA THIMOTHY, KARAM CO-OPERATIVE
3. M.A. THIMOTHY, KARAM CO-OPERATIVE
Vs
1. NEETHA, D/O. JOSEPH GEORGE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.SOORAJ T.ELENJICKAL
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/06/2011
O R D E R
THOMAS P. JOSEPH, J.
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T.P.(Crl.). No.41 of 2011
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Dated this the 17th day of June, 2011.
ORDER
Petitioners are the respondents in M.C.No.3 of 2010 of the court of learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam (for short, " the ACJM") filed by first respondent under Section 12 of the Protection of Women from Domestic Violence Act (for short, "the Act"). First respondent has also filed O.P.No.2188 of 2010 in the Family Court, Thrissur seeking divorce and return of gold ornaments and other reliefs. Petitioners pray that M.C.No.3 of 2010 pending before the learned ACJM may be transferred to the Family Court, Thrissur. According to the petitioners they are staying at Mumbai and in connection with M.C.No.3 of 2010 they are required to come down to Ernakulam every now and then which caused much inconvenience to them. It is also submitted that first petitioner has lost his job. I have heard learned Public Prosecutor also.
2. According to the learned counsel, by virtue of Section 26 of the Act Family Court is also given the power to grant reliefs under Sections 18,19, 20,21 and 22 of the Act. Learned counsel has also invited my attention to Section 7(2) of the Family Courts Act to contend that Family Courts also can exercise jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Tr.P.(Crl.)41/2011 2 Criminal Procedure. In the circumstances, it is contended that proceeding before learned ACJM may be transferred to the Family Court.
3. Having heard learned counsel and gone through the provisions of the Act, I am unable to agree. As per provisions of the Act, jurisdiction is conferred on the Magistrate and "Magistrate" is defined in Section 2(i) of the Act as meaning as a Judicial Magistrate of First Class or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place. The Magistrate exercising power under the Act is a criminal court. This is clear from Section 29 of the Act which states that there shall lie an appeal to the court of Sessions from the order passed by the Magistrate. Thus, it is clear that the Magistrate while exercising power under the Act acts as a criminal court.
4. True that by virtue of power conferred under Section 26 of the Act apart from the 'Magistrate' above referred, a civil court or Family Court or criminal court is also empowered to grant relief under Sections 18, 19, 20, 21 and 22 of the Act. That provision is not intended to equate the Magistrate exercising power under the Act with a Family Court or civil court empowered to grant certain reliefs as provided in the Act. The mere fact that power to grant certain reliefs is conferred on other courts also does not mean that the proceeding pending before the Magistrate could be transferred to those courts. I must also bear in mind that from the decision of the Family Court in exercise of power under Tr.P.(Crl.)41/2011 3 Section 26 of the Act, there could be no appeal to the Court of Sessions under Section 29 of the Act. Thus, 'Magistrate' as defined in Section 2(i) of the Act and other courts which are also empowered to grant certain reliefs under the Act are different and it is not as if the case pending in one court could be transferred to the other, exercising power by virtue of Section 26 of the Act. Section 7(2) of the Family Courts Act only empowered the Family Court to exercise the power conferred on a Magistrate under Chapter IX of the Code of Criminal Procedure, 1973 in relation to grant of maintenance of wife, children, etc. Learned counsel made reference to Sub-clause (b) of Sub-section (2) of Section 7. Assuming that jurisdiction conferred on Family Court by other enactments also could be exercised by that Court, it is not as if the Magistrate exercising power under the Act and the Family Court or other court referred to in Section 26 of the Act empowered to grant certain reliefs in the same position so that case pending in one court could be transferred to other court. So viewed request made by petitioner cannot be entertained.
Resultantly this Transfer Petition (Criminal) is dismissed.
THOMAS P.JOSEPH, Judge.
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