Kerala High Court
Rajeev Thomas vs Sheeja Antony on 23 July, 2018
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940
WP(C).No. 8218 of 2017
AGAINST THE ORDER/JUDGMENT IN MC 14/2016 of J.M.F.C.,CHANGANACHERRY
PETITIONER(S):
1 RAJEEV THOMAS
AGED 45 YEARS, S/O.THOMAS, KOCHUKANIKKAD HOUSE,
PERUMBANACHI POST, KARUMBANADAM, MADAPPALLY VILLAGE,
CHANGANASSERY TALUK, KOTTAYAM DISTRICT NOW RESIDING AT
SOKHRAT A1 QAMAR CONT. AND TRADING W.L.L.P.O., BOX90267,
DOHA, QATAR, REP. BY HIS POWER OF ATTORNEY HOLDER
ROSAMMA THOMAS @ BEENA, AGED 39 HYEARS, W/O.JOSHY,
RESIDING AT PADANILATHU HOUSE, KADAMANCHIRA KARA,
THRIKKODITHANAM POST, THRIKKODITHANAM VILLAGE,
CHANGANASSERY TALUK, KOTTAYAM DISTRICT.
2 MARYKUTTY,
AGED 71 YEARS, W/O.LATE THOMAS, KOCHUKANIKKAD
HOUSE,NEDUMUDY POST, CHAMBAKKULAM VILLAGE, ALAPPUZHA
DISTRICT, NOW RESIDING AT PADANILATHU HOUSE,
KADAMANCHIRA KARA, THRIKKODITHANAM POST,
THRIKKODITHANAM VILLAGE, CHANGANASSERY TALUK,
KOTTAYAM DISTRICT.
3 ROSAMMA THOMAS @ BEENA,
AGED 39 YEARS, W/O.JOSHY, RESIDING AT PADANILATHU HOUSE,
KADAMANCHIRA KARA, THRIKKODITHANAM POST,
THRIKKODITHANAM VILLAGE, CHANGANASSERY TALUK,
KOTTAYAM DISTRICT.
BY ADVS.SRI.V.R.KESAVA KAIMAL
SMT.C.DEVIKA RANI KAIMAL
RESPONDENT(S):
1. SHEEJA ANTONY
AGED 37 YEARS, W/O.RAJEEV THOMAS, KOCHUKANIKKAD HOUSE,
PERUMBANACHI POST, KURUMBANADAM, MADAPPALLY VILLAGE,
CHANGANASSERY TALUK, KOTTAYAM DISTRICT-686536.
2. SAJU THOMAS,
AGED 44 YEARS, S/O.THOMAS, KARAKKATTUKUNNEL HOUSE,
KORUTHODE POST, KORUTHODE KARA, MUNDAKAYAM VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT-686513.
WP(C).No. 8218 of 2017
3. UNION ON INDIA,
REP. BY THE SECRETARY TO MINISTRY OF LAW AND JUSTICE,
SASTHRI BHAVAN, DR.RAJENDRAPRASAD ROAD, NEW DELHI-110001.
R3 BY ADV. SRI.S.VAIDYANATHAN, CGC
R2 BY ADV. SRI. WILSON T. JOSE
R2 BY ADV. SMT.C.S.RAJANI
R1 BY ADV. SRI.RAJESH SIVARAMANKUTTY
R3 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL:SRI N NAGARESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.02.2018, THE COURT
ON 23-07-2018 DELIVERED THE FOLLOWING:
WP(C).No. 8218 of 2017 (B)
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1- TRUE COPY OF THE ORIGINAL PETITION IN O.P.NO.300/2016 ON THE FILES
OF FAMILY COURT, ETTUMANOOR.
EXHIBIT P2- TRUE COPY OF THE PETITION IN M.C.NO.14/2016 ON THE FILES OF JUDICIAL
FIRST CLASS MAGISTRATE COURT-I, CHANGANASSERY.
EXHIBIT P3- TRUE COPY OF THE COUNTER FILED BY THE PETITIONERS AND THE
COUNTER CLAIM RAISED BY THEM.
EXHIBIT P4- TRUE COPY OF THE COUNTER STATEMENT FILED BY THE FIRST
RESPONDENT TO THE COUNTER CLAIM IN EXT.P3.
RESPONDENTS EXHIBITS:NIL
True Copy / P A to Judge
'CR'
SUNIL THOMAS, J.
=================
W.P(C).No.8218 of 2017
=================
Dated this the 23rd day of July, 2018
JUDGMENT
First petitioner and first respondent are husband and wife respectively. The second petitioner is the mother-in-law and the third petitioner is the sister-in-law of the first respondent. The first respondent filed O.P.No.300 of 2016 before the Family Court, Ettumanoor seeking reliefs against the petitioners herein.
2. The crux of the allegation of the first respondent was that, she was employed in Doha and had earned substantially. During the matrimonial relationship, first petitioner, who was heavily indebted, was given huge amounts by the first respondent to save him from financial difficulties and for starting a business. It was advanced on a specific understanding that the building covered by document No.1 of 2016 will be assigned to her. While so, first respondent expressed her intention to purchase an item of property. Money was advanced by her to the first petitioner who purchased an item of property comprised in document No.3 of 2016 in his own name. Later, matrimonial disputes arose. She initiated proceedings before the Family Court contending inter alia, that, though both the properties stood in the name of the first petitioner, actual physical W.P(C).8218/17 2 possession of the property comprised in document No.1 of 2016 was with her. She also initiated proceedings as M.C.No.14 of 2016 before the Judicial First Class Magistrate Court, Changanassery, invoking the provisions of the Protection of Women from Domestic Violence Act (hereinafter referred as 'DV Act' for brevity) and an interim order was obtained in her favour. Later, she understood that the properties comprised in document Nos.1 of 2016 and 3 of 2016 were assigned to the second respondent herein, who was a close relative of the petitioners herein. Hence, she initiated proceedings against the petitioners and the second respondent before the Family Court as O.P.No.300 of 2016 for a declaration that the assignment deeds executed in favour of both the respondents were null and void and that, she was the owner of the properties comprised therein, or in the alternative, for a decree for Rs.67,00,000/- with interest @18% recoverable from the petitioners. She also sought a decree for Rs.50,00,000/- as compensation for the mental agony and the suffering caused.
3. Petitioners have approached this Court contending that, though two separate proceedings are pending before the two different courts, the subject matter involved in both the proceedings are the same, parties are the same and that the pleadings and reliefs sought in Ext.P1, which is the proceeding as O.P.No.300 of W.P(C).8218/17 3 2016 and Ext.P2 proceedings in M.C.No.14 of 2016 are the same. In the light of section 26 of the Protection of Women from Domestic Violence Act, reliefs covered by Ext.P2 can be granted by the Family Court also. Hence, petitioners sought for transfer of M.C.No.14 of 2016 pending before the Judicial First Class Magistrate Court, Changanassery to the Family Court, Ettumanoor for trial and disposal along with O.P.No.300 of 2016.
4. Heard both sides and examined the records.
5. The matrimonial relationship, the purchase of properties and the present strained relationship are not in dispute. The pleadings in both proceedings and the reliefs sought are also overlapping. The Family Court is competent to grant the reliefs which are sought in M.C.No.14 of 2016 by virtue of section 26 of the DV Act. The crucial question is whether, in the interest of justice and to protect the parties from facing simultaneous proceedings in two separate forums, both can be tried in the same Court, to avoid multiplicity of proceedings and conflicting decisions being rendered.
6. It was contended that, section 24 of the Code of Civil Procedure cannot be invoked to seek the reliefs, because Ext.P2 proceedings are pending before the criminal court. Sections 407 and 408 Cr.P.C cannot also be invoked since Ext.P1 proceedings are W.P(C).8218/17 4 pending before the civil court. Hence, it was contended that the relief can be sought only by invoking extraordinary jurisdiction under Article 227 of the Constitution. Evidently, neither section 24 of the Code of Civil Procedure, nor sections 407 and 408 of Criminal Procedure Code can be invoked to seek reliefs raised in the writ petition.
7. It was contended by the learned counsel for the petitioners that the intention of the legislature while enacting section 26 of the Act was to confer concurrent jurisdiction on the Magistrate Court and the Family Court. It was contended that, simultaneous exercise of jurisdiction was permissible, unless it was prohibited. It was contended that, section 26 of the Act impliedly conferred concurrent jurisdiction on Judicial First Class Magistrate Court and on the Family Court to decide disputes under sections 18 to 22 of the Act, by providing that such reliefs can be granted by other Courts also.
8. To elucidate the above contention, learned counsel for the petitioners relied on the decision in Kajaria Co.(P) Ltd. v. Vimala Bai (1967 KLT 575) , the Division Bench decision in Raghavan Nair v. Appu Kidavu (1979 KLT 458) and the decision of the Supreme Court in State Bank of India v. Ranjan Chemicals Ltd and Another ((2007) 1 SCC 97) . In Kajaria Co. W.P(C).8218/17 5 (P) Ltd.'s case, suit for eviction pending before the Munsiff Court and application pending before the same Munsiff in his capacity as the Rent Control Court were jointly tried. In a challenge, the High Court held that, when same person combines in himself two offices, the simultaneous exercise of both jurisdictions is permissible, unless it is prohibited and such an exercise cannot mean that, he has validly exercised neither. The suit was tried by the Munsiff in his capacity as such and the mere fact that, along with the suit, he tried the two petitions in his capacity as the Rent Control Court does not deprive him from his capacity or his jurisdiction as a Munsiff. In Raghavan Nair's case, the Division Bench was dealing with the principle of estoppel by election. It was held that, when either of two alternate tribunals are open to a litigant, each having jurisdiction over the matters in dispute, and he resorts for his remedy, one of such tribunal in preference to the other, he is precluded, as against the opponent, from any subsequent recourse to the latter and so also, in the case of two alternative modes of trial, if a litigant, by conduct of inaction, acquiesces in the adoption of one of these modes as by taking part in the proceedings down to their conclusion without objection or protest, he is estopped from afterwards complaining that the mode of trial with which he was content at the time was irregular or without jurisdiction. In State W.P(C).8218/17 6 Bank of India's case, Supreme Court was dealing with the principle of joint trial of causes of actions. It was held that, joint trial can be ordered if a common question of law and fact arises in both the proceedings or right to relief claimed in them is in respect of or arises out of the same transaction or series of transactions. It can be adopted, if the parties are the same and that would avoid separate overlapping of evidence.
9. None of the above decisions is applicable to the facts of the case. In all the above cases, the question was regarding exercise of jurisdiction of the two courts when each of the court was competent to try the other case. In the case at hand, it is to be evaluated whether each of the Court was competent to try the other proceeding.
10. The specific contention of the learned counsel for the petitioners was that, section 26 of the DV Act conferred concurrent jurisdiction on the Family Court as well as on the Magistrate Court while adjudicating the reliefs under sections 18 to 22 of the DV Act. Section 26 clearly clarifies that, petitioner is under an option to seek reliefs under sections 18 to 22 along with other reliefs in any pending proceeding instituted before or after introduction of the DV Act. The correct interpretation and the scope of section 26 of the DV Act was the subject matter of decisions of various courts. In W.P(C).8218/17 7 Smt.Kumari Behera v. State of Orissa and Ors. (AIR 2010 ORISSA 68), it was held that, Family Court can grant any relief available under sections 18 to 22, if such reliefs are sought in a pending proceeding. However, for an independent proceeding seeking relief under sections 18 to 22, only concerned Magistrate has jurisdiction as per provisions of sections 26 and 27 of the DV Act. This view was affirmed by the Division Bench of Orissa High Court in Brundaban Patra and Another v. Rajalaxmi Patra (2011(4) KHC 740). This was further explained in Ambreen Akhoon v. Aditya Aurn Paudwal and Ors. (2016 CrilJ 141). In that, Bombay High Court held that, section 26 of the DV Act enables a party to seek relief available under sections 18 to 22 of the DV Act in any legal proceeding before the civil court or Family Court or criminal court affecting the aggrieved person, whether such proceeding was initiated before or after the commencement of the DV Act. It was held that sub-sections (1) and (2) of Section 26 presupposes that, there should be a suit or legal proceeding pending before the Civil or criminal Court wherein the relief under the DV Act also can be sought in addition to relief. It was held that the scope of section 26 of the DV Act was that, same relief under sections 18 to 22 can be the subject matter of any other proceeding pending before the Family Court along with other reliefs sought. W.P(C).8218/17 8 This was explained by a learned Single Judge of this Court in Raju Narayana Swamy v. Beena M.D (2017(1) KHC 607) . It was clarified that the Family Court will have jurisdiction under the DV 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 sections 18 to 22 is filed in that proceeding.
11. In Neethu Singh v. Sunil Singh (AIR 2008 CHH (1)), reliefs under the DV Act was sought by the wife in a proceeding before the Family Court. The application was ordered to be returned for filing before the competent court having jurisdiction. This was under challenge before the Chattisgarh High Court. Referring to the various provisions of the Statute, it was held that, under section 26 of the DV Act, an option has been given to the aggrieved person to avail reliefs available to her under sections 18 to 22 in a legal proceeding pending in a civil court, criminal court or family court in addition to filing of the application under section 12. An application under section 12 cannot be filed before the Family Court because, as per the scheme of the Act application under section 12 of the Act, 2005 has to be filed before the Magistrate competent to entertain the application. W.P(C).8218/17 9
12. Division Bench of this Court in Sudhannya v. Umasanker Valsan (2013(1) KLT 135) had considered the question whether section 26 of DV act gives an option to the aggrieved person to approach either Magistrate under section 12 of the Act or Family Court, if person needs the reliefs contemplated under sections 18 to 22 of the DV Act. It was held that, though section 12 of the DV Act specifically confers power on the Magistrate court and section 26 of the Act explains that, identical reliefs can be sought before the Family Court, the distinction is so clear that the application under section 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(2) KLJ 209). It was held that, though under section 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 section 12 of the DV Act. That reliefs under sections 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 section 12 can be considered and disposed of by the W.P(C).8218/17 10 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 section 12 and grant reliefs under sections 18 to 22 of the DV Act.
14. The above view was followed by a learned Single Judge in Anish Antony v. Neetha (2011(3) KLT 409) wherein, it was held that by virtue of section 26 of the Act, apart from 'Magistrate', a Civil Court or Family Court or criminal court is also empowered to grant relief under sections 18 to 22 of the DV Act. It 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 under 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. It was held that, Magistrate exercising power under the Act is a criminal court. This is clear from section 29 of the Act, which states that, appeal from the order passed by the Magistrate will lie to a Court of Session.
15. The principle involved in M.A.Mony's case (supra) and Anish Antony's case (supra) was followed by a learned Single Judge of Madras High Court in Capt.C.V.S.Ravi v. Mrs.Ratna Sailaja (Crl.O.P.No.17122 of 2008). Relying on the precedents, W.P(C).8218/17 11 learned Single Judge held that, under section 7(2)(b) of the Act, though 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 section 12 of the DV Act. 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 to deal with an application under section 12 and grant reliefs under sections 18 to 22 in such application under section 12. Of course, the Family Court and Civil Court have the jurisdiction in a proceeding pending before it to grant the reliefs under sections 18 to 22 of the DV Act also. Certainly, there is no power for the Family Court or Civil Court to deal with an application under section 12.
16. These decisions clearly show that the correct interpretation of section 26 of the DV Act is that, though an application under section 12 can be considered only by a magistrate and cannot be considered by a Family Court or Civil Court or any other Court, the reliefs that can be granted under Sections 18 to 22 can also be granted by other courts while dealing with the pending disputes. There is a sea of difference between holding that both courts have concurrent jurisdiction and that, one Court can grant the reliefs, which can be granted by another court. What is clarified W.P(C).8218/17 12 by section 26 is that, the reliefs under sections 18 to 22 can be granted by other civil courts. Section 26(3) of the DV Act clarifies that, if a relief under sections 18 to 22 is granted by other court, it shall be reported to the jurisdictional magistrate, which clearly and categorically clarifies that, both the jurisdictions conferred thereon on other courts are not concurrent.
17. In the light of the clear distinction of jurisdictions, there cannot be a transfer of the case pending before the magistrate court under section 12 of the DV Act to a Family Court. Further, the procedures to be followed in adjudication, the enforcement of orders and the provisions for appeal are different in both courts. Hence, reliefs sought by the petitioners herein cannot be granted.
In the result, writ petition fails and is dismissed.
Sd/-
SUNIL THOMAS Judge Sbna/ True Copy / P A to Judge