Bombay High Court
Mr. Hitesh Prakashmalji Mehta vs Mrs. Aashika Hitesh Mehta on 28 September, 2020
Author: C.V. Bhadang
Bench: C.V. Bhadang
1-Misc. Civil Appl.St.-788-2020-final order
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS CIVIL APPLICATION (ST) NO.788 OF 2020
Hitesh Prakashmalji Mehta ..Applicant
Vs
Nilam Digitally signed
by Nilam Kamble Aashika Hitesh Mehta ..Respondent
Kamble Date: 2020.09.28
19:13:43 +0530 ----
Mr.Abhijit D. Sarwate for the Applicant.
Mr.Arvind Chavan for the Respondent.
----
CORAM : C.V. BHADANG, J.
DATE : 28th SEPTEMBER 2020
(Through Video Conference)
P.C.
1. This is an application for transfer of Criminal
Miscellaneous Application No.533 of 2017 pending before the
learned Judicial Magistrate First Class at Pune, to the file of the
Family Court No.2 at pune where P.A.No.371 of 2018 filed by the
applicant for dissolution of marriage, on the ground of cruelty, is
pending.
2. The parties are husband and wife. They were married
on 22nd February 2008 and have two children from the wed-lock. It
appears that the marriage ran into rough weather and this led the
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applicant/husband to file for divorce on the ground of cruelty in P.A.
No.371 of 2018 which is pending before the Family Court at Pune.
The respondent/wife has filed Criminal M.A. No.5223 of 2017
against the applicant for various reliefs under the Protection of
Women from Domestic Violence Act, 2005 ('D.V. Act' for short)
which is pending before the learned Magistrate First Class, Pune.
The applicant prays for transfer of the said case to Family Court.
3. I have heard the learned counsel for the applicant and
the learned counsel for the respondent.
4. The learned counsel for the applicant submitted that
same or similar issues would arise in the matters pending before the
Family Court and learned Magistrate, inasmuch as the parties are
making allegations of being treated with cruelty, against each other.
It is therefore submitted that in order to avoid conflicting decisions/
orders and for convenience of the trial and also in order to save
time, it is necessary to transfer Criminal Application filed by the
respondent, under the D.V. Act to the Family Court, where the
petition for divorce, filed by the applicant is pending. The learned
counsel has placed reliance on Section 26 of the D.V. Act, in order to
submit that any relief, which the aggrieved person, can claim before
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the Magistrate, can also be claimed before the Family Court. This in
the submission of the learned counsel for the applicant, would show
that the application filed under the D.V. Act, can be heard and
decided by the Family Court.
5. The learned counsel has placed reliance on the decision
of this Court in Mr.Santosh Machindra Mulik V/s. Mrs.Mohini Mithu
Choudahri (MCA No.64 of 2019 decided on 15 th November 2019)
and Sandip Mrinmoy Chakraboarty V/s. Reshita Sandip Chakrabarty
&Anr. (Criminal Writ Petition No.4649 of 2015 decided on 06 th
September 2018) in order to submit that in similar circumstances,
this Court had directed the transfer of the matter under the D.V. Act,
to the Family Court.
6. The learned counsel for the respondent has opposed the
application. It is strenuously urged that the application under the
D.V. Act, cannot be transferred to the Family Court, inasmuch as the
Family Court has no jurisdiction to hear and decide the same. The
learned counsel has placed reliance on Section 27 of the D.V. Act, in
order to submit, that the jurisdiction to entertain such an application
is only with a Magistrate, as defined in Section 2(i) of the D.V. Act.
It is submitted that a Family Court is not included in the definition
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of a 'Magistrate', and thus in the absence of jurisdiction to entertain
the proceedings under the D.V. Act, the request for transfer is
misconceived.
7. The learned counsel has placed reliance on the decision
of the Division Bench of the Chhattisgarh High Court in Smt.Neetu
Singh V/s. Sunil Singh1, in order to submit that such transfer is not
permissible. Reliance is also placed on the decision of the Supreme
Court in the case of the Vimlaben Ajitbhai Patel V/s. Vatslaben
Ashokbhai Patel and Ors with Ajitbhai R. Patel & Anr. V/s. State of
Gujarat and Anr.2.
8. It is submitted that the issues involved in the two
proceedings are different. The learned counsel pointed out that the
issue before the learned Magistrate is essential, whether the
respondent has been subjected to any acts of domestic violence by
the applicant and quite to the contrary, the issue before the Family
Court, is whether the applicant is entitled to dissolution of
marriage, on the ground that the applicant is treated with cruelty. It
is submitted that, thus the transfer is not warranted, as it would
create complications and stifle the trial of the Domestic Violence
1 AIR-2008-Chhattisgarh High Court-1
2 (2008) 4 Supreme Court Cases 649
N.S. Kamble page 4 of 12
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case. It is submitted that such transfer, if allowed, would result into
the respondent loosing a statutory right of appeal/revision before
the learned Sessions Judge, which is impermissible. The learned
counsel points out that the applicant has made all the attempts to
protract the proceedings filed before the learned Magistrate and this
is yet another attempt to do so.
9. I have considered the circumstances and the
submissions made. The applicant has filed P.A. No.371 of 2018
against the respondent inter-alia seeking the relief of, dissolution of
marriage and permanent custody of the children. The applicant is
also seeking partition of the property, namely a flat situated at
Vardhamanpura, Bibwewadi, Pune. The respondent has filed
Criminal M.A. No.533 of 2017 under Section 12, 17, 18, 19, 20, 22
and 23(2) of the D.V. Act, seeking a residence order in the Flat
situated at Bibwewadi, a protection order and monetary reliefs in
the form of a monthly maintenance of Rs.1,50,000/- and
compensation in the form of one time, lump sum payment of Rs.50
lakhs, along with costs of Rs.5 lakhs.
10. It is undisputed that in the petition pending before the
Family Court, the applicant has entered into the witness box and he
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is presently under cross-examination. The evidence in the
application before the learned Magistrate is yet to begin. For the
limited purpose of deciding the application for transfer, it not
necessary to go into the reasons why the evidence has not started
before the Magistrate, although these proceedings are filed
somewhere in the year 2017.
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 Anand3 (R.D. Dhanuka, J.), (ii) Sandip
Mrinmoy Chakraboarty V/s. Reshita Sandip Chakrabatry4
(Smt.Bharati H. Dangre, J.) and (iii) Mr.Santosh Machindra Mulik
V/s.Mrs.Mohini Mithu Choudhari5 (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 would get jurisdiction to entertain application for
reliefs under section 18 to 22 of the D.V. Act. It is necessary to note
3 Misc.C.A. No.255 of 2015 decided on 10th December 2015
4 2018 SCC Online Bom 2709
5 Misc.C.A.No.64 of 2019 decided on 15th November 2019
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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.
12. The learned counsel for the respondent pointed out that
Section 26 of the D.V. Act, only speaks of the reliefs available under
Section 18 to 22 and does not cover Section 17. I am afraid, the
contention is misconceived Section 17 only declares the right of the
aggrieved person to reside in the shared household. The remedy to
enforce any such right, is to be found in Section 19, which is
included in Section 26 of the said Act.
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.
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1-Misc. Civil Appl.St.-788-2020-final order
"5. Learned Counsel for the Respondent further
submits that transfer of the criminal proceeding curtails
the right of the Respondent-wife to file 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 different courts would be
required effectively to consider the same set of
circumstances and could have arrived at two different
conclusions or, even possibly, conflicting 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."
I am in respectful agreement with the view as taken.
14. Coming to the case of Smt.Neetu Singh , it is necessary
to note that this decision was brought to the notice of this Court in
the case of Santosh Mulik (Supra). I would still propose to make a
brief reference to the same. In that case the wife had filed an
application for maintenance under Section 125 of the Code of
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Criminal Procedure (Cr.P.C.) before the learned Chief Judicial
Magistrate at Bilaspur. The said proceedings were transferred to
Family Court at Bilaspur and were pending. The wife filed separate
substantive proceedings under section 12 read with Section 19 of
the D.V. Act, before the Family Court at Bilaspur. The Family Court,
by the impugned order, had returned the same, for filing it before
the Competent Court having jurisdiction. That order was subject
matter of challenge before the High Court. Although the High Court
held that the substantive proceedings filed under Section 12 were
not maintainable before the Family Court, the High Court held that
it would be open to the wife to seek the reliefs under Sections 18 to
22 of the Act by filing application under Section 26 in the
maintenance proceedings which were pending before the Family
Court. This is what is held in paragraph 10 and 11 of the
judgment :-
"10. In view of the above scheme of the Act, specially as
per the provisions of Section 26 of the Act, the appellant
herein is entitled to seek relief available to her under
Sections 18,19,20,21 and 22 of the Act, 2005 in the
maintenance proceeding pending in the Family Court,
Bilaspur. But the appellant is required to move an application
under Section 26 read with Section in which she is seeking
relief. However, instead of doing that, the appellant moved
an independent fresh application under Section 12 of the
Act, 2005 which can be entertained only by the Magistrate
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having jurisdiction. An application under Section 12 cannot
be filed before Family Court because proceeding under
Section 12 of the Act, 2005, as per the scheme of the Act,
has to be filed before the Magistrate competent to entertain
the application.
11. In the circumstances, we do not find any illegality or
infirmity in the order impugned passed by the learned Judge,
Family Court. The appeal is, therefore, liable to be dismissed
and it is hereby dismissed. Still the appellant is entitled to
move an application under Section 26 of the Act, 2005
before the Family Court in the maintenance proceeding said
to be pending before that Court.
(emphasis supplied)
15. It can thus clearly be seen that even in that case the
High Court has held, that the family Court can entertain an
application seeking reliefs under Sections 18 to 22 of the Act,
provided they are sought with reference to Section 26. In my
humble opinion, it would only be a matter of label, which is not
decisive. Thus if the Family Court can entertain an application
under Sections 18 to 22, if filed under Section 26 merely because
the application is styled as one under section 12, would hardly
make any difference.
16. The learned counsel for the respondent also submitted
that under Section 28(2) of the D.V. Act the learned Magistrate is
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competent to follow his own procedure, which latitude is not
available to the family Court. This argument is also negatived in the
case of Santosh Mulik, in view of Sub-Section 3 of Section 10 of the
Family Courts.
17. Reliance placed on behalf of the respondent on the
decision of the Supreme Court in the case of Vimlaben Patel to my
mind is misplaced. The Supreme Court in the said case has inter
alia held that under the provisions of the Domestic Violence Act the
wife not only acquires a right to be maintained but also acquires a
right of residence, which is a higher right. It has been held that such
a right of residence extends only to joint properties, in which the
husband has a share. It is difficult to see how judgment can come to
the aid of the respondent in this case.
18. Thus looked from any angle the objection raised on
behalf of the respondent cannot be upheld.
19. In the result the following order is passed.
ORDER
(i) The application is allowed.
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(ii) Criminal M.A. No.5223 of 2017 is withdrawn from the file of the learned Judicial Magistrate First Class, 04th Court, Pune and is transferred to the Family Court No.2 for disposal according to law.
(iii) In the circumstances, there shall be no order as to costs.
C.V. BHADANG, J.
N.S. Kamble page 12 of 12