Bombay High Court
Mr. Sanket Sanjeev Khanolkar vs Mrs. Surabhi Sanket Khanolkar on 15 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 202
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
MCAST-5825-20.doc
BDP-SPS
Bharat
D.
Pandit
Digitally signed
by Bharat D.
Pandit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Date: 2021.02.22
09:55:03 +0530
MISC. CIVIL APPLICATION (ST) NO. 5825 OF 2020
Mr. Sanket Sanjeev Khanolkar ..... Applicant.
V/s
Mrs. Surabhi Sanket Khanolkar ..... Respondent.
Ms. Jai Vaidya for the Applicant.
Ms. Gayatri Gokhale a/w Jitendra Gokhale for the Respondent.
CORAM: NITIN W. SAMBRE, J.
DATE: FEBRUARY 15, 2021
P.C.:-
1] This is an application under Section 24 of the Civil Procedure
Code seeking transfer of the proceedings i.e. D.V. Application No.44 of 2020 pending on the file of 5 th Court of Metropolitan Magistrate Bhoiwada, Mumbai to Family Court, Bandra which is dealing with divorce proceeding bearing Lodging No. 2137 of 2020. 2] The parties to the application got married on 19/12/2010 and out of matrimonial differences both the aforesaid proceedings are initiated. In both these proceedings, applicant-husband is non- applicant and he has sought transfer of proceedings from the Court of Metropolitan Magistrate to the Family Court.
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MCAST-5825-20.doc 3] According to the learned Counsel for the applicant, transfer is required to be ordered so as to avoid contradictory findings on the same set of facts, to save judicial time, avoid hardship to the parties and also to avoid repetition of the proceedings. The learned Counsel for the Applicant has placed reliance on the following judgments in the matters of (1) Hitesh Prakashmalji Mehta vs. Ashika Hitesh Mehta, delivered on 28/9/2020 in Misc. civil Application (St) No.788 of 2020, (2) Mr. Santosh Machindra Mulik vs. Mrs. Mohini Mithu Choudhari , delivered on 15/11/2019 in Misc. Civil Application No.64 of 2019, (3) Sandip Mrinmoy Chakraboarty vs. Reshita Sandip Chakrabarty & Anr., delivered on 6/9/2018 in Criminal Writ Petition No.4649 of 2015, (4) Mr. Abhishek N. Billawa & Ors. vs. Mrs. Tejashree Abhishek Billawa delivered on 14/12/2020 in Misc. Civil Application No.47 of 2020, (5) Dr. Santosh Kumar Shetty vs. Mrs. Smita Shetty & Anr ., delivered on 20/11/2019 in Criminal Application No.273 of 2019. 4] While countering the aforesaid submissions, learned Counsel for the non-applicant would urge that proceedings which are initiated by the non-applicant/wife are first in point of time. It is also claimed that 2/10 MCAST-5825-20.doc non-applicant is yet to appear before the Family Court. By inviting attention of this Court to the provisions of Section 26 of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as "D.V. Act" for the sake of brevity) and also to the object of the said Act, it is claimed that the non-applicant is a master of proceedings which she has initiated. It is submitted that provisions of Section 26 is not enabling or substantive provision and as such non- applicant will be at loss in case proceedings are ordered to be transferred. He has invited attention of this Court to the judgment of this Court in the matter of Abhijeet Prabhakar Jail vs. Manisha Abhijeet Jail & Anr delivered on June 5, 2018 in Criminal Application No. 732 of 2017, particularly para 9 which reads thus :
"9. 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 3/10 MCAST-5825-20.doc 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 bound 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 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."4/10
MCAST-5825-20.doc Relying on the aforesaid observations, the Respondent claimed for dismissal.
5] Considered rival submissions. 6] The issues as are sought to be canvassed by the learned Counsel
for the Respondent while opposing the prayer for transfer are already dealt with in the matter of Hitesh Prakashmalji Mehta cited supra. Para 11 and 13 of the said judgment read thus :
"11. Be that as it may, the principle issue is whether the Family Court can entertain the application, as framed and filed by the respondent, before the learned Magistrate. This issue may not detain me long, as it is covered by at least three decisions of learned Single Judges of this Court, in case of (i) Minoti Subhash Anand V/s. Subhash Manoharlal Anand (R.D. Dhanuka, J.), (ii) Sandip Mrinmoy Chakraboarty V/s. Reshita Sandip Chakrabatry (Smt. Bharati H. Dangre, J.) and (iii) Mr.Santosh Machindra Mulik V/s.Mrs.Mohini Mithu Choudhari (S.C. Gupte, J.). It has been consistently held by this Court, in view of Section 7(2)(b) of the Family Courts Act, read with Section 26 of the D.V. Act, that the Family Court 5/10 MCAST-5825-20.doc would get jurisdiction to entertain application for reliefs under section 18 to 22 of the D.V. Act. It is necessary to note that in the case of Sandip Chakraboarty this Court has also adverted to the issue whether the Family Court would be competent to grant interim relief and has held in the affirmative. Although the learned counsel for the respondent submitted that the entire reliefs which the respondent has claimed before the learned Magistrate, cannot be granted by the Family Court on a carefully consideration of the reliefs sought, I am unable to accept the same."
"13. It was further submitted that the right of appeal/revision available to the respondent would be lost. I find that a similar ground was also raised before this Court in the case of Santosh Mulik and the same has been negatived. This is what is held in paragraph No.5 of the order.
"5. Learned Counsel for the Respondent further submits that transfer of the criminal proceeding curtails the right of the Respondent-wife to fle an appeal, which she ordinarily would have had if the proceeding were to be decided by the criminal court. We are concerned in the present case essentially with the justice of the case in having the two matters heard together. On the one hand, we have a situation where two diferent courts would be required efectively to consider the same set of circumstances and could have arrived at two diferent conclusions or, even possibly, conlicting 6/10 MCAST-5825-20.doc conclusions, and on the other hand, if this situation were to be avoided, and it appears to be imperative that it be avoided, one particular stage of challenge would be missed. In any event, since from the domestic violence proceeding that may be heard along with the matrimonial proceeding before the Family Court, an appeal would lie to this court, and in that sense, no party can be said to be loosing his/ her right of appeal, what is lost is further right of revision. That, however, is no ground to deny transfer of proceedings on the basis of the principle of justice noted above."
As such, a consistent view has already been taken by this Court that Section 7(2)(b) of Family Courts Act read with Section 26 of D.V. Act gives jurisdictional power to the Family Court to entertain the application seeking relief under the provisions of Sections 18 to 22 of D.V. Act. Once it is held that such jurisdiction can be exercised by the Family Court, provisions of Family Courts Act will come in to play. Section 19 of the Family Courts Act provided for remedy of appeal, which reads thus:
"19 Appeal.-(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.7/10
MCAST-5825-20.doc (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991].
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.] [(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.
[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges." 8/10
MCAST-5825-20.doc The aforesaid provision of appeal in the background of the observations made hereinabove is required to be taken note of. The judgment relied upon by the learned Counsel for the non-applicant in the matter of Abhijeet Prabhakar Jail cited supra has failed to consider the provisions of Family Courts Act, particularly Section 19 which provides for appeal from the judgment of the Family Court. If the contentions of non-applicant are appreciated, situation will be, two different courts will be dealing with the dispute based on same set of facts and circumstances and may arrive at two different conclusions, resulting in conflicting decisions. So as to avoid conflicting decisions, it is imperative on the part of this Court to step into the power under Section 24 of the Civil Procedure Code.
7] In view of the above observations, submissions of the learned Counsel for the non-applicant that non-applicant is yet to appear before the Family Court and the proceedings initiated by the non- applicant are first in point of time will have hardly any bearing over the powers to be exercised by this Court under Section 24 of the Civil Procedure Code.
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MCAST-5825-20.doc 8] In the wake of above, in my opinion, case for grant of transfer is made out. As such, application stands allowed in terms of prayer clause (a).
9] However, in the facts of the case, it is expected of the learned court below to expeditiously decide the proceedings taken out by the non-applicant wife for grant of interim maintenance.
( NITIN W. SAMBRE, J. ) 10/10