Kerala High Court
Sunil Babu vs Renju on 23 November, 2021
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
WP(C) (FILING NO. 7025) OF 2021
PETITIONERS
1.SUNIL BABU,AGED 43,
S/O MADHUSOODHANAN NAIR, VIJAYA BHAVAN, THURAVOOR PO,
THURAVOOR PO, CHERTHALA, ALAPPUZHA 688532
2. VIJAYALAKSHMI AGED 71 YEARS,
W/O MADHUSOODHANAN, VIJAYA BHAVANAN, THURAVOOR
CHERTHALA, ALAPPUZHA 688532
3. SINDHU AGED 48 YEARS,
D/O MADHUSUDHANAN, NANDHANAM HOUSE, VAIKOM PO
KOTTAYAM 686 141
BY ADV JOBY CYRIAC
RESPONDENTS
RENJU AGED 38
D/O RADHAMMA, SANJU BHAVANAM,
KADAKKAL PO, KOLLAM 691 536
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.10.2021, THE COURT ON 23.11.2021, DELIVERED THE FOLLOWING:
Unnumbered WP(C) (F.No.7025/2021) of 2021
2
JUDGMENT
Dated : 23rd November, 2021
1. This Writ Petition has been filed seeking transfer of M.C.43/2019 and M.C.45/2019 pending before the Judicial First Class Magistrate-I, Cherthala to the Family Court, Alappuzha.
2. Registry noted defect as to whether the Original Petition under Article 226 of the Constitution of India is the proper remedy ?
3. Heard the learned counsel for the petitioners.
4. Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi (2017 (14) SCC 373 = AIR 2017 SC 2926 = 2017 KHC 6434), Hiral P.Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. (arising out of SLP (Civil) No.9132 of 2015 dated 6.10.2016), Minoti Subhash Anand v. Subhash Manoharlal Anand (2015 SCC Online Bom 6113 = (2016 1 AIR Bm R (Cri) 247) as well as Sandip Mrinmoy Chakraboarty v. Reshita Sandip Chakrabarty & Anr. (Criminal Writ petition No.4649 of 2015 dated 6.9.2018), were relied Unnumbered WP(C) (F.No.7025/2021) of 2021 3 on by the learned counsel for the petitioner.
5. The relief sought in the Writ peititon is for an issue of writ of mandamus seeking for transfer of M.C.43/2019 and 45/2019 (Form No.II) pending before the Judicial First Class Magistrate-I, Cherthala to the Family Court, Alappuzha. According to the petitioner, petitioner had filed Ext.P1 OP(D).326/2019 before the Family Court, Alappuzha and as a counter blast, the respondent fled Ext.P2 petition under Section 125 of Cr.P.C before the Family Court, Alappuzha. The respondent also filed two applications under Section 12 of the Protection of Woman From Domestic Violence Act, 2005 (DV Act) before the Judicial First Class Magistrate-I, Cherthala, copy of which is produced as Ext.P3. Ext.P4 appear to be the printed form of Ext.P3 petition. The only question which arises for consideration is whether an MC filed under section 12 of the DV Act is liable to be transferred to the Family Court ?
6. In Vaishali Abhimanyu Joshi's case, the Apex Court was Unnumbered WP(C) (F.No.7025/2021) of 2021 4 dealing with a question as to whether the claim filed by the wife seeking right under Section 19 of the DV Act can be entertained in a suit filed against her under Section 26 of Provincial Small Cause Courts Act seeking a mandatory injunction directing her to stop using the suit flat and to remove her belongings therefrom.
7. S.19 of the DV act deals with residence orders which enables a Magistrate while disposing an application under sub-section (1) of Section 12 on being satisfied that domestic violence has taken place to pass residence order for restraining the respondent from dispossessing; in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal; equitable interest in the shared household; directing the respondent to remove himself from the shared household; restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; Unnumbered WP(C) (F.No.7025/2021) of 2021 5 restraining the respondent from alienating or disposing off the shared household or encumbering the same; or restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; etc etc.
8. The Apex Court considered the scope of Section 26 of the Act which provides that any relief available under Section 18 to 22 may also be provided in any legal proceeding before a Civil Court, family Court or a Criminal Court affecting the aggrieved person and the respondent. Since the appellant in that case had set up her counter claim on the basis of Section 26 it was held that the proceedings before the Judge of Small cause is a legal proceeding. On the strength of Section 26 any reliefs available under Section 18 to 22 of the DV Act can also be sought by the aggrieved person. But that was not a case of transfer of a case pending before the Magistrate Court under Section 12 of the DV Act to any other Court. So the dictum laid down in Vaishali Abhimanyu Joshi's case is not squarely Unnumbered WP(C) (F.No.7025/2021) of 2021 6 applicable to the fact situation of this case.
9. Though the learned counsel placed reliance on Hiral P.Harsora, that was a case in which the constitutional validity and interpretation of Section 2(q) of the DV Act has come up for consideration and ultimately the words 'adult male person' in Section 2(q) were struck down as the words between the persons similarly situated and far from being in tune with, are contrary to the objects sought to be achieved by the DV Act. So it is also not squarely applicable to the issue mooted in this writ petition.
10. It is true that in Minoti Subhash Anand's case, the Honourable Bombay High Court allowed a transfer petition filed by the wife invoking Section 24 of the Code of Civil Procedure, 1908 and also jurisdiction vested with the court under Article 226 of the Constitution of India seeking for transfer of case No.155/SS/2009 from the Magistrate Court Girgaon to Family Court, Bandra.
11. So also in Sandip Mrinmoy Chakraboarty's case the Unnumbered WP(C) (F.No.7025/2021) of 2021 7 High Court of Bombay allowed a transfer petition filed by the husband seeking for transfer of a petition instituted by the wife to Family Court where an OP filed by the wife seeking for dissolution of marriage, is pending.
12. But a learned Single Judge of this Court in Rajeev Thomas and Others v. Sheeja Antony and Others (2018 (4) KHC 8 = ILR 2018 (3) Ker. 756) dealt with the question whether a prayer for transfer of case from Magistrate Court under the DV Act can be transferred to Family Court for joint trial. Paragraph Nos.12 and 13 of the above decision are relevant in this context to be extracted with read as under :-
"12. Division Bench of this Court in Sudhannya v. Umasanker Valsan, 2012 (4) KHC 901 : 2013 (1) KLT 135 : 2013 (1) KLD 85 : 2013 (1) KLJ 375 had considered the question whether S.26 of DV Act gives an option to the aggrieved person to approach either Magistrate under S.12 of the Act or Family Court, if person needs the reliefs contemplated under S.18 to 22 of the DV Act. It was held that, though S.12 of the DV Act specifically confers power on the Magistrate Unnumbered WP(C) (F.No.7025/2021) of 2021 8 Court and S.26 of the Act explains that, identical reliefs can be sought before the Family Court, the distinction is so clear that the application under S.12 can be filed only before the Magistrate Court and such a power is not conferred on the Family Court.
13. The distinction has been explained by a learned Single Judge of this Court in M.A.Mony v. M.P.Leelamma and Another, 2007 KHC 3478 : 2007 (2) KLJ 209 : ILR 2007 (2) Ker.394 : 2007 (2) KLT 432, 2007 (1) KLD 405 : 2007 CriLJ 2604. It was held that, though under S.7(2) (b) of 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 S.12 of the DV Act. That reliefs under S.18 to 22 can be claimed before the Family Court in any other proceeding is a world different from the contention that a petition under S.12 can be considered and disposed of oby the Family Court. There is nothing in the language, scheme or purport of the DV Act, which can even remotely suggest that a Civil Court or Family Court is competent of deal with an application under S.12 and grant reliefs under S.18 to 22 of the DV Act."
13. On analyzing Section 26 of the DV Act, it could be seen that what the Section provides is that, any relief Unnumbered WP(C) (F.No.7025/2021) of 2021 9 available under Sections 18 to 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. Sub- section (2) of Section 26 further provides that the 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. Sub- section (3) further provides that 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.
14. Obviously Section 26 enables a party to seek the relief available under the DV Act before any Civil Court, Family Court or criminal court expressly excludes the relief provided under Section 12. Section 26 only provides an additional benefit to any aggrieved Unnumbered WP(C) (F.No.7025/2021) of 2021 10 person and respondent to seek reliefs under Sections 18 to 22 in any legal proceeding before a civil Court, family Court or a criminal Court etc. So also as per Section 27, the jurisdiction under the Act has been conferred upon the Court of Judicial First Class Magistrate or the Metropolitan Magistrate. So also Section 28 expressly provides that all proceedings under Sections 12, 18, 19, 21, 22 and 23 and offence under Section 31 is governed by the provisions of Cr.P.C though as per sub-section (2), the Court has been given power to lay down its own procedure for disposal of the application under Section 12 or sub- section (2) of Section 23. So also as per Section 29, the Court of Session is conferred with the appellate jurisdiction under the Act. Hence I am of the considered view that the dictum laid down by the learned Single Judge of this Court in Rajeev Thomas's case that a transfer of a proceedings under the DV Act to a Family Court cannot be allowed, is the more reasonable proposition and hence I am accepting the Unnumbered WP(C) (F.No.7025/2021) of 2021 11 dictum laid down in the said decision and find that the Writ petition filed by the petitioner seeking for transfer of the MC proceedings pending before the Judicial First Class Magistrate Court-I, Cherthala, to the Family Court, Alappuzha is not sustainable in law.
15. Accordingly the writ petition is rejected as not maintainable.
Sd/-
M.R.Anitha, Judge Mrcs/22.11.