Kerala High Court
Raju Narayana Swamy vs Beena .M.D on 21 October, 2016
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938
OP(Crl.).No. 616 of 2016 (Q)
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MP 978/2015 IN MC NO. 367/2015 OF FAMILY COURT, ERNAKULAM
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PETITIONER(S):
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RAJU NARAYANA SWAMY
AGED 46 YEARS, S/O.K.S.VENKITACHALAM IYER,
RG-324, ULLOOR GRAMAM, MEDICAL COLLEGE PO,
THIRUVANANTHAPURAM-11.
BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
RESPONDENT(S):
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BEENA .M.D
AGED 42 YEARS, D/O.M.N.DIVAKARAN,
HOUSE NO.XV/798-8-1, VATTAMAKKAL ROAD,
MOOLAMKUZHI, ERNAKULAM-07.
BY SRI.S.SREEKUMAR SENIOR ADVOCATE
BY ADVS. SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.JANEESH THOTTATHIL
SRI.DEEPAK S. DEVAN
SMT.LAKSHMI SREEDHAR
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 30-01-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
bp
OP(Crl.).No. 616 of 2016 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: TRUE COPY OF THE MC NO.367/2015
P2: TRUE COPY OF THE OBJECTION IN THE MC FILED BY THE
PETITIONER
P3: TRUE COPY OF THE MP 958/2015
P4: TRUE COPY OF THE ORDER DATED 21.10.2016
P5: TRUE COPY OF THE ADVANCE PETITION MP NO.657/2016
P6: TRUE COPY OF THE ORDER OF THE FAMILY COURT,
ERNAKULAM DATED 31.10.2016
P7: TRUE COPY OF THE MP NO.1119/2016
P8: TRUE COPY OF THE MP NO.1120/2016
RESPONDENT(S)' EXHIBITS :
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EXT.R1: COPY OF JUDGEMENT IN OP NO. 1451/2014 DT 28/12/2015
OF FAMILY COURT, ERNAKULAM.
EXT.R2: COPY OF 'B' DIARY PROCEEDINGS IN OP(HMA) NO. 1451 OF
2014 ON THE FILE F THE FAMILY COURT, ERNAKULAM.
EXT.R3: COPY OF PETITION IN EXHIBIT P1 MC CONTAINS THE
ENDORSEMENT OF THE COUNSEL FOR THE PETITIONER.
EXT.R4: COPY OF PETITION IN EXHIBIT P3 MP CONTAINS THE
ENDORSEMENT OF THE COUNSEL FOR THE PETITIONER.
EXT.R5: COPY OF OBJECTION FILED BY THE RESPONDENT TO EXHIBIT
P7 PETITION.
EXT.R6: COPY OF OBJECTION FILED BY THE RESPONDENT TO EXHIBIT
P8 PETITION.
//TRUE COPY//
P.A. TO JUDGE
bp
"CR"
RAJA VIJAYARAGHAVAN, V., J.
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O.P.(Crl) No.616 of 2016
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Dated this the 30th day of January, 2017
J U D G M E N T
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1.Whether the Family Court has jurisdiction to take cognizance of an independent and original proceeding under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'PWDV Act' for short) and grant any of the reliefs under section 18 to 12 of the Act? This is the moot question raised by the petitioner in this case.
2.The petitioner herein is the respondent in M.C. No. 367 of 2015 on the file of the Family Court, Ernakulam. The aforesaid petition has been filed by the respondent herein under Section 12 of the PWDV Act seeking a residence order and monetary reliefs. The maintainability of the original application itself is under challenge in this petition O.P.(Crl) No.616 of 2016 -2- filed under Article 227 of the Constitution of India.
3.Skeletal facts necessary for disposal of this petition are that the petitioner married the 1st respondent in the year 2007 and in course of time, the relationship ran into rough weather. This led to the filing of a petition seeking divorce by the respondent before the Family Court, Ernakulam as O.P.(HMA) No.1451 of 2014. It appears that the said petition was allowed ex parte. An application seeking to set aside the order was filed which is pending before the Court below. While so, the instant petition was filed under Section 12 of the PWDV Act before the Family Court, Ernakulam as M.C.No. 367 of 2015 under Section 19 and 20 of the PWDV Act with a prayer to direct the petitioner (i) to secure alternate accommodation for the respondent or to pay monthly rent; (ii) for monthly maintenance at the rate of Rs.20,000/-; and (iii) to direct O.P.(Crl) No.616 of 2016 -3- payment of compensation of Rs.50 Lakhs. Though an objection was filed by the petitioner, the Family Court by order dated 21/10/2016 directed the petitioner to pay a sum of Rs.15,000/- as maintenance to the respondent and a sum of Rs. 10,000/- as rent for availing appropriate accommodation. The petitioner is aggrieved by the above order. According to the petitioner, the original petition itself is not maintainable before the Family Court.
4.I have heard Sri. S.Rajeev, the learned Counsel appearing for the petitioner and Sri. S.Sreekumar, the learned Senior Counsel appearing for the respondent.
5.The learned counsel appearing for the petitioner submits that the learned Family Court was having no jurisdiction to entertain an independent application claiming relief under PWDV Act. It is argued by the learned Counsel that by virtue of Section 12 of the PWDV Act, the aggrieved O.P.(Crl) No.616 of 2016 -4- person has to approach the jurisdictional Magistrate for obtaining orders of reliefs. By Section 26 of the PWDV Act, if any legal proceeding is pending before a Civil Court, a Family Court or a Criminal Court, the reliefs available under Sections 18, 19, 20, 21 and 22 can also be sought in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding even if such proceeding was initiated before or after the commencement of the PWDV Act. But no independent application can be maintained before the Courts enumerated in Section 26 of the PWDV Act, is the submission. According to the learned counsel, the proceedings before the Family Court is clearly an abuse of process and the same is liable to be quashed. The learned Counsel would rely on the decision of a Division Bench of the Chattisgarh High Court in Smt.Neetu Singh V Sunil Singh [AIR 2008 (Chattisgarh) 1] and that of the Orissa O.P.(Crl) No.616 of 2016 -5- High Court in Smt.Kumari Behara V State of Orissa and others [AIR 2010 Orissa 68] to canvass the legal proposition advanced.
6.The learned Senior counsel appearing for the respondent on the other hand would urge that a broad interpretation is to be given to the relevant provisions as the Act is intended for extending succor for the women who are at the receiving end of rampant domestic violence. It is contended that the application before the Family Court was perfectly maintainable as the application for setting aside the ex parte order of divorce is pending consideration of the Family Court, though in an independent proceeding.
7. I have considered the rival submissions.
8.The object of the PWDV Act is to provide for more effective protection of the rights of women guaranteed O.P.(Crl) No.616 of 2016 -6- under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Section 3 of the PWDV Act defines 'domestic violence'. The definition of 'domestic violence' is very wide and apart from other aspects it encompasses within itself physical abuse, verbal abuse, sexual abuse, emotional abuse and economic abuse. Section 12 forming part of Chapter IV of the said PWDV Act provides for an application being made by an aggrieved person or a protection officer or any other person on behalf of aggrieved person. The application is maintainable before a Judicial Magistrate of First Class or a Metropolitan Magistrate, as the case may be. 'Aggrieved person' as defined by Clause (a) of Section 2 means any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Sub- O.P.(Crl) No.616 of 2016 -7- section (3) of Section 12 provides that every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed. Section 12 of the PWDV Act provides that an aggrieved person or a protection officer or any other person for and on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under the PWDV Act.
9.The Protection of Women From Domestic Violence Rules, 2006 (hereinafter referred to as 'the said Rules') have been framed under the PWDV Act. Rule 6 and Rule 7 are the relevant rules which lay down the procedure which reads as follows.
6. Applications to the Magistrate : -
(1) Every application of the aggrieved person under S.12 shall be in Form II or as nearly as possible thereto.O.P.(Crl) No.616 of 2016 -8-
(2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and forwarding the same to the concerned Magistrate.
(3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof.
(4) The affidavit to be filed under sub-
section (2) of S.23 shall be filed in Form III.
(5) The applications under S.12 shall be dealt with and the orders enforced in the same manner laid down under S.125 of the Code of Criminal Procedure, 1973 (2 of 1974).
7. Affidavit for obtaining ex parte orders of Magistrate :-
Every affidavit for obtaining ex parte order under sub-section (2) of Section 23 shall be filed in Form III."
10.The Magistrate before whom the application is filed is empowered to grant (i) protection orders under Section 18 which are for preventing the respondent from committing an Act of Domestic Violence; (ii) residence O.P.(Crl) No.616 of 2016 -9- orders under Section 19; (iii) Monetary relief under Section 20 which includes maintenance, loss of earnings, medical expenses and loss caused due to destruction, damage or removal of any property from the control of the aggrieved person; (iv) custody orders under Section 21 dealing with temporary custody of any child or children to the aggrieved person or visitation rights to aggrieved person under Section 21; and (v) compensation orders under Section 22.
11.It will be apposite to refer to Section 26 of the PWDV Act at this juncture.
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 O.P.(Crl) No.616 of 2016 -10- 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.
12.Section 26 of the PWDV Act has been inserted with an objective that in addition to the provisions of Section 12, the aggrieved person is entitled to any relief available under Sections 18, 19, 20, 21 and 22 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 the PWDV Act. Sub-section O.P.(Crl) No.616 of 2016 -11- (2) of Section 26 further envisages that 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. Sub-section (3) obliges the aggrieved person to disclose the nature of the reliefs, if any, obtained in any proceeding other than a proceeding under the Act. The intention of the legislature was to enable the aggrieved person to secure the same relief in other proceedings before the Civil, Family or Criminal Court, whether it was instituted prior to or after the commencement of the PWDV Act. This would enure to the convenience of the aggrieved person as well as the respondent and would also prevent multiplicity or proceedings and conflict of orders. However an application under Section 12 seeking various reliefs under Section 18 to 22 cannot be filed as an original or O.P.(Crl) No.616 of 2016 -12- independent application before the Family Court as the Act expressly stipulates that a proceeding under Section 12 of the PWDV Act has to be filed before the Magistrate competent to entertain the application. The Family Court will have jurisdiction under the PWDV Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding and the application under Section 26 of the Act seeking relief under section 18 to 22 is filed in that proceeding. The same view has been taken in Neetu Singh (supra) and Kumari Behara (supra). Accordingly, I hold that the Family Court, Ernakulam is having no jurisdiction to entertain M.C. No.367 of 2015 on the files of the said court. The same is quashed. However, the respondent will be at liberty to approach the learned Magistrate having jurisdiction under Section 12 of the PWDV Act or alternatively, before the competent court O.P.(Crl) No.616 of 2016 -13- under Section 26(1) of the PWDV Act, where any legal proceeding affecting the parties are pending. The petition is disposed of as above.
Sd/-
RAJA VIJAYARAGHAVAN, V. JUDGE Ps/22/1/2017