Crl.O.P .No.17998 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
Crl.O.P No.17998 of 2021
and
Crl.MP.No.9900 of 2021
G.Rajkumar ...Petitioner
Vs.
1.Pavithra
2.Govindharaj
3.Jeeva
4.Vimala
5.Sankar
6.Parimala ... Respondents
PRAYER: Criminal original Petition filed under Section 482 of Cr.P.C.
praying to withdraw the D.V.C No.2 of 2020 from the file of the Special
Court to Try Cases filed under Protection of Women from Domestic
Violence Act, Coimbaore and transfer to Judicial Magistrate. Additional
Mahila Court, Krishnaghiri or any other competent Court within the
jurisdiction of Krishnagiri, for passing of appropriate orders on the basis of
the materials available.
1/6
https://www.mhc.tn.gov.in/judis
Crl.O.P .No.17998 of 2021
For Petitioner : No Appearance
For Respondent : Mr.D.Udayasuriyan
For M/s.S.Saravanan for R1
ORDER
This Criminal Original Petition has been filed to withdraw the D.V.C No.2 of 2020 from the file of the Special Court to Try Cases filed under Protection of Women from Domestic Violence Act, Coimbaore and transferred to Judicial Magistrate. Additional Mahila Court, Krishnaghiri or any other competent Court within the jurisdiction of Krishnagiri.
2. The petitioner is the husband, against whom the wife has filed a petition in DVC.No.2 of 2020 on the file of the Special Court to Try Cases filed under Protection of Women from Domestic Violence Act, Coimbatore. The petitioner has filed an original petition for Restitution of Conjugal rights in OP.No.451 of 2019 on the file of the Family Court, Krishnagiri.
3. It is submitted that since both the matters are pending before the different courts, it is difficult for the petitioner to attend both the Courts; if 2/6 https://www.mhc.tn.gov.in/judis Crl.O.P .No.17998 of 2021 the hearings of both cases are conducted in one and the same Court that will avoid conflict of judgments.
4. The proceedings under Domestic Violence Act cannot be transferred from a Magistrate Court to a Civil or Family Court at the instance of the respondent. However, if the wife has filed a petition for transfer and with her consent the proceedings can be transferred from the Magistrate Court to another Court. Sec.2(q) of the protection of Women from Domestic Violence Act,2005 would read as under:
“Section 2(q) in The Protection of Women from Domestic Violence Act, 2005
(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”
5. The proceedings under Domestic Violence Act initiated by the aggrieved wife can be transferred to the Family Court at the instance of the victim or with her consent. In the case on hand, the transfer application has been filed by the husband. Since the family court while dealing with the 3/6 https://www.mhc.tn.gov.in/judis Crl.O.P .No.17998 of 2021 cases under Domestic Violence Act, cannot invoke the power of the Magistrate. So, the complaint cannot be deprived to avail the benefit of conducting the domestic violence proceedings before the Magistrate.
However it is open to the victim to waive her above right and seek to transfer the said proceedings to be conducted along with any other proceedings pending in the Family Court. Since the request for transfer was originated by the husband against whom the complaint was given in the domestic violence case, the prayer for transfer the petition cannot be considered. In this regard, it is relevant to rely upon the order dated 12.07.2022 passed by the Hon'ble Division Bench of this Court, in the case of P.Ganesan vs. Revathy Prema Rubarani, in C.R.P.PD(MD) No.909 of 2021 & etc.,batch cases, wherein it is held as follows:
" 17. To sum up, our answer to the Questions referred are as follows:
(a) The proceedings under chapter IV of the Domestic Violence Act are civil in nature.
(b) This Court can exercise power under section 482 Cr.P.C in respect of Domestic Violence Act proceedings.
(c)Section 468 Cr.P.C is not applicable for proceedings under Domestic Violence Act.
(d) We cannot by a Judicial exercise determine the period of limitation in the absence of any provision under the Act 4/6 https://www.mhc.tn.gov.in/judis Crl.O.P .No.17998 of 2021 prescribing limitation.
(e) Proceedings under Domestic Violence Act cannot be transferred from a Magistrate to a Civil or Family Court at the instance of the Respondent defined under 2 (q) of the Domestic Violence Act. However, the proceedings can be transferred at the instance of the applicants/ victim or with her consent.
6. In view of the above, the Criminal Original Petition stands dismissed. Consequently, connected Miscellaneous Petition is closed.
09.09.2022
Index : Yes/No
Speaking Order : Yes / No
uma
To
The Special Court to Try Cases filed under Protection of Women from Domestic Violence Act, Coimbaore 5/6 https://www.mhc.tn.gov.in/judis Crl.O.P .No.17998 of 2021 R.N.MANJULA, J., uma Crl.O.P No.17998 of 2021 and Crl.M.P.No.9900 of 2021 09.09.2022 6/6 https://www.mhc.tn.gov.in/judis