Kerala High Court
Ammini K.A vs Ravi N.A on 8 September, 2021
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA,
1943
TR.P(C) NO. 399 OF 2021
MC 17/2020 OF TEMPORARY JUDL. FIRST CLASS MAGISTRATE
COURT, NJARAKKAL, ERNAKULAM
PETITIONER/S:
AMMINI K.A.
AGED 58 YEARS
W/O.RAVI, SREE NIVAS, PALLATH HOUSE, KUZHUPILLY,
AYYAMBILLY, KOCHI TALUK, ERNAKULAM - 682 501.
BY ADVS.
DEEPA NARAYANAN
K.SUJAI SATHIAN
MARY LIYA SABU
RESPONDENT/S:
RAVI N.A.
AGED 65 YEARS
S/O.AYYARU, NIKATHUTHARA PALLATH HOUSE,
EDAVANAKKADU, KOCHI TALUK, ERNAKULAM - 682 502.
BY ADV M.K.FAISAL
THIS TRANSFER PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Tr.P.(C) No.399 of 2021
2
ORDER
Dated this the 08th day of September, 2021 The marital discord between the petitioner/wife and respondent/husband resulted in the petitioner filing MC No.17/2020 before the Judicial First Class Magistrate Court, Njarackal under Section 12 of the Protection of Women from the Domestic Violence Act ("the DV Act"). The petitioner has also filed O.P.No.818 of 2020 before the Family Court, Ernakulam under Section 13(1)(i)(ia) of the Hindu Marriage Act r/w Section 7 of the Family Courts Act, seeking divorce on the ground of cruelty. On his part, the respondent has filed O.P.No.982 of 2020 before the Family Court, Ernakulam for deletion of the petitioner's name from the title deed of the property purchased in their joint names. The petitioner seeks transfer Tr.P.(C) No.399 of 2021 3 of MC No.17 of 2020 from the Judicial First Class Magistrate Court, Njarackal to the Family Court, Ernakulam, to be taken up along with O.P.No.818 of 2020.
2. Adv. Mary Liya Sabu, learned Counsel for the petitioner contended that the averments in the MC and the original petition being similar and inter-related, joint trial of the cases is essential to avoid multiplicity of proceedings and divergent decisions. It is contended that, a complaint under the DV Act can be transferred to the Family Court, on a purposive interpretation of Section 26 of the DV Act and Section 7(c) of the Family Courts Act. In support of the contention, reliance is placed on the decision in Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi [(2017) 14 SCC 373].
3. Adv. Faisal Kunjali, learned Counsel for Tr.P.(C) No.399 of 2021 4 the respondent submitted that the transfer petition is liable to be rejected with cost, the petitioner having suppressed material facts. It is pointed out that, aggrieved by the denial of interim reliefs in MC No.17 of 2020, the petitioner had earlier filed Crl.M.C No.2742 of 2020. That Crl.M.C was disposed of vide Annexure R1(a) dated 26.6.2020, directing the Magistrate Court to dispose of MC 17 of 2020 within a period of two months. In order to comply with the time stipulation in the order, the learned Magistrate posted MC No.17 of 2020 at least 24 times, but the petitioner was not prepared to let in evidence and the case had to be adjourned. Left with no other alternative, the petitioner's evidence was closed on 09.08.2021 and the case posted to 16.08.2021 for respondent's evidence. The transfer petition was filed in the meanwhile, suppressing Annexure Tr.P.(C) No.399 of 2021 5 R1(a) order and the subsequent events.
4. With respect to the legal contention based on Section 26 of the DV Act and Section 7(c) of the Family Courts Act, learned Counsel submitted that the decisions of this Court in 2011 (3) KHC 46, 2018 (4) KHC 8 etc and contended that a complaint under Section 12 of the DV Act cannot be transferred to the Family Court. The learned Counsel drew attention to Section 29 of the DV Act providing for an appeal to the District Court against the orders issued under the Act and submitted that the Family Court also being a District Court, the appellate remedy will be rendered nugatory, if the complaint is transferred to the Family Court.
5. Replying to the allegation of wilful suppression, learned Counsel for the petitioner pointed out that Crl.M.C No.2742 of 2020 was filed Tr.P.(C) No.399 of 2021 6 against denial of interim relief in MC 17 of 2020 and this Court had disposed the case with a direction to expedite the proceedings in MC 17 of 2020. As the case could not be disposed of within the stipulated time frame, the learned Magistrate sought extension of time and the same was granted. The petitioner's absence on the posting days was not wilful and was only for the reason that the petitioner had to be in home quarantine frequently, along with her son who is a practising Doctor. The petitioner has also tendered her unconditional apology in the reply affidavit.
6. As rightly contended by the learned Counsel for the respondent, the legal position that a complaint under Section 12 of the DV Act cannot be transferred to the Family Court is no longer res integra. In M.A. Mony v. M.P. Leelamma, (2007) 2 KLT 432],this Court has held as Tr.P.(C) No.399 of 2021 7 follows;
"10. I am unable to accept this argument at all. Though under Section 7(2)(b), 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 DVA. That reliefs under Sections 18 to 22 can be claimed before the Family Court in any other proceedings is a world different from the contention that a petition under Section 12 can be considered and disposed of by the Family Court There is nothing in the language, scheme or purport of the DVA, 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 the Civil Court have the jurisdiction in a proceedings pending before it to grant the reliefs under Sections 18 to 22 Of the DVA also. But certainly there is no power for the Family Court or Civil Court to deal with an application under Section 12. They cannot entertain an application under Section 12 either when it is originally filed before them nor can the superior courts entertain any jurisdiction to transfer such petition under Section 12 pending before the Magistrate to such Civil or Family Court so that such court can entertain jurisdiction to deal with an application under Section 12. The decision of the Legislature to confer the right to redressal through the criminal court cannot obviously be denied to or taken away from an aggrieved woman by such an order of transfer by the superior court. That she can claim the reliefs under the DVA through the civil court also is no reason to deprive her of the vested statutory right of procedure to claim enforcement through the Criminal Court. I, Tr.P.(C) No.399 of 2021 8 therefore, take the view that except the Magistrate clothed with authority to deal with petitions under Section 12 of the DVA, no Civil Court or Family Court has jurisdiction to deal with an application under Section 12. Consequently this Court cannot direct transfer of a petition under Section 12 pending before the Magistrate to the Family Court and thus clothe the Family Court with jurisdiction to consider such application under Section 12. The prayer for transfer cannot hence succeed."
7. The position was reiterated in Anish Antony v. Neetha, (2011) 3 KLT 409], as under;
"4. True that by virtue of power conferred under S. 26 of the Act apart from the 'Magistrate' above referred, a civil court or Family Court or criminal court is also empowered to grant relief under Ss. 18, 19, 20, 21 and 22 of the Act. That provision 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 in 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. I must also bear in mind that from the decision of the Family Court in exercise of power under S. 26 of the Act, there could be no appeal to the Court of Sessions under S. 29 of the Act. Thus, 'Magistrate' as defined in S. 2(i) of the Act and other courts which are also empowered to grant certain reliefs under the Act are different and it is not as if the case pending in one court could be transferred to the other, exercising power by virtue of S. 26 of the Act. S. 7(2) of the Family Courts Act only empowered the Family Court to exercise the power conferred on a Tr.P.(C) No.399 of 2021 9 Magistrate under Chapter IX of the Code of Criminal Procedure, 1973 in relation to grant of maintenance of wife, children, etc. Learned counsel made reference to sub-clause (b) of sub- s. (2) of S. 7. Assuming that jurisdiction conferred on Family Court by other enactments also could be exercised by that Court, it is not as if the Magistrate exercising power under the Act and the Family Court or other court referred to in S. 26 of the Act empowered to grant certain reliefs in the same position so that case pending in one court could be transferred to other court. So viewed request made by petitioner cannot be entertained."
The decision in Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, (2017) 14 SCC 373 relied on by the petitioner has only held that Section 26 of the 2005 DV Act should be interpreted in a manner to effectuate the very purpose and object of the Act. The Apex Court also held that, unless the determination of claim by an aggrieved person seeking any order as contemplated by the 2005 Act is expressly barred from consideration by a civil court, no such bar shall be read while considering any such claim in any legal proceeding before the civil court. No doubt, the protective and Tr.P.(C) No.399 of 2021 10 prohibitory reliefs under the DV Act can be sought in a civil proceeding, but that does not mean that a complaint under Section 12 can either be filed or transferred to the Civil Court or The Family Court. The jurisdiction to decide the complaint is vested with the Magistrate Court alone.
For the aforementioned reasons, the transfer petition is dismissed.
Sd/-
V.G.ARUN JUDGE Scl/ Tr.P.(C) No.399 of 2021 11 APPENDIX OF TR.P(C) 399/2021 PETITIONER ANNEXURE Annexure A1 TRUE COPY OF M.C.NO.17/2020 FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT NJARACKAL DATED 04/05/2020.
Annexure A2 TRUE COPY OF THE O.P.NO.818/2020 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM DATED 25/05/2020. Annexure A3 TRUE COPY OF THE O.P.NO.982/2020 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM DATED 16/06/2020.