Telangana High Court
Tamalla Hima Bindu Alias Rekala Hima ... vs The State Of Telangana, on 15 April, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
TRANSFER CRIMINAL PETITION No.123 of 2023
ORDER:
This petition is filed by the petitioner represented by her father, the Special Power of Attorney holder to transfer D.V.C. No.146 of 2021 from the file of the I Additional Junior Civil Judge-cum-XII Additional Metropolitan Magistrate at Kukatpally to the file of the Family Court Judge, City Civil Court, Secunderabad, on whose file, F.C.O.P.No.595 of 2021 filed by the petitioner was pending, to be tried together.
2. Notices were issued to the respondents 2 to 4. They were served on them, as per the postal track report information filed by the learned counsel for the petitioner. But there is no representation for the respondents 2 to 4.
3. Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor representing respondent No.1-State.
4. Learned counsel for the petitioner submitted that the petitioner was the wife of respondent No.2. The marriage between the petitioner and respondent No.2 was performed on 22.03.2019 at Secunderabad as per Hindu rites and customs. The respondents 2 to 4 along with the brothers of 2 Dr.GRR,J trcrlp_123_2023 respondent No.2 subjected the petitioner to domestic violence, as such, the petitioner filed a petition under Sections 12, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'DV Act') against them before the Court of the I Additional Junior Civil Judge- cum-XII Additional Metropolitan Magistrate at Kukatpally. The learned Magistrate took cognizance against the respondents 2 to 4 vide D.V.C. No.146 of 2021 and the same was pending. The respondent No.2 filed F.C.O.P.No.336 of 2021 on the file of the Family Court Judge, Ranga Reddy District at L.B. Nagar against the petitioner seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, H.M. Act) by making false and concocted allegations against the petitioner. The respondent No.2, after solemnization of marriage with the petitioner treated her with cruelty. As such, the petitioner filed F.C.O.P.No.595 of 2021 before the Family Court Judge, City Civil Court, Secunderabad seeking divorce under Section13(1)(ia) and Section 25 of the H.M. Act and the same was pending. The issues involved in D.V.C. No.146 of 2021, F.C.O.P.No.336 of 2021 and F.C.O.P.No.595 of 2021 filed by the petitioner were intrinsically connected with each other. The continuance of the proceedings at three different forums would only amount to multiplicity of the proceedings and might result in conflicting orders by the said forums. As the decisions in these cases 3 Dr.GRR,J trcrlp_123_2023 would be interdependent, it was desirable that they should be tried together by the same Court. Further, both the petitioner and respondent No.2 need to face the trial thrice in these cases. The joint conduct of proceedings of these cases before the Family Court Judge at Secunderabad, where the F.C.O.P.No.595 of 2021 was pending trial, would cause no hardship to the respondents herein. The same would be convenient not only to the petitioner but also to the respondent No.2 as well. 4.1. The learned counsel for petitioner further submitted that during the pendency of the above cases, during September 2022, the petitioner left for London to pursue high studies and was currently studying there. It would be difficult to send her evidence affidavits to London to get them signed and file them in each of the three cases. Further, the petitioner needed to take permission from the three courts before which the three cases were pending, for examining her through Skype or other video conferencing platform. It would be inconvenient for all the stakeholders involved in the process of examination and cross-examination. If all the three cases were tried together, then the examination process could be confined to one court, which would be convenient to all the parties. It was well settled law by the Hon'ble Apex Court that the wife's convenience must be looked into while considering the transfer and prayed to transfer 4 Dr.GRR,J trcrlp_123_2023 D.V.C. No.146 of 2021 on the file of the I Additional Junior Civil Judge- cum-XII Additional Metropolitan Magistrate at Kukatpally to the file of the Family Court Judge, City Civil Court, Secunderabad, on whose file, F.C.O.P.No.595 of 2021 filed by the petitioner was pending.
5. Learned Assistant Public Prosecutor reported to decide the matter on merits.
6. The petitioner was seeking transfer of D.V.C. No.146 of 2021 on the file of the I Additional Junior Civil Judge-cum-XII Additional Metropolitan Magistrate at Kukatpally to the file of the Family Court Judge, City Civil Court, Secunderabad, on whose file, F.C.O.P.No.595 of 2021 filed by the petitioner was pending on the ground of convenience to the parties. The procedure envisaged for trial of cases under the D.V. Act and under the Family Courts Act were distinct and different. The application filed under Section 12 of the D.V. Act shall be filed before the Magistrate, 'which alone have' jurisdiction to entertain it. The Family Court cannot entertain an application filed under Section 12 of the D.V. Act. The reliefs claimed under both the Acts were distinct. By transferring the proceedings under D.V. Act pending before the Judicial Magistrate of First Class to the Family Courts which were presided by the 5 Dr.GRR,J trcrlp_123_2023 officers, who were in the cadre of District Judges, the aggrieved women would also be deprived of availing statutory right of appeal provided under Section 29 of the D.V. Act. It was well settled that right of appeal was a substantive right and it gets vested in a litigant no sooner the lis is commenced in the court of the first instance. The appeal from the judgment of the Family Court lies to the High Court. By transfer of the DVC proceedings to the Family Court, the appeal lies to the High Court, but the aggrieved party would lose a further right to revision. Except the High Court of Bombay, several other High Courts like the High Court of Kerala, Chhattisgarh and Madras had taken a view that such transfer of case from the Court of the Magistrate to the Family Court is not permissible. Only the High Court of Bombay in Rohan Shah Vs. Nishigandha Shah 1 had taken a different view and held that such transfer was permissible on the ground of avoiding undue hardship to the parties.
7. The High Court of Kerala in Ammini K.A. Vs. Ravi N.A. 2 by relying upon its earlier judgment in M.A. Mony Vs. M.P. Leelamma[(2007) 2 KLT 432] held that:
1
2023 SCC OnLine Bom 2719 2 2021 SCC OnLine Ker 9212 6 Dr.GRR,J trcrlp_123_2023 "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 neither 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 7 Dr.GRR,J trcrlp_123_2023 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, 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."
8. By also relying upon its earlier judgment in Anish Antony Vs. Neetha [(2011) 3 KLT 409] wherein it was held that:
"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 8 Dr.GRR,J trcrlp_123_2023 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 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."
9. The Division Bench of the Kerala High Court recently in Vineet Ganesh Vs. Priyanka Vasan 3 held that the proceedings initiated under 3 Tr.Appeal (C) No.1 of 2023 dated 09.08.2023 9 Dr.GRR,J trcrlp_123_2023 the D.V. Act, 2005 cannot be transferred to a Family Court and observed that:
"16. The scheme of the D.V. Act is such that an aggrieved person is ensured more effective protection through the forum of a criminal court. The D.V. Act was enacted much after the Family Courts Act, 1984 came into force. The Legislature, fully conscious of the provisions of the Family Courts Act, had enacted the D.V. Act in 2005 creating a special forum by investing powers on Judicial Magistrates to deal with the applications under Section 12 and also creating a Court of Session as the appellate forum under Section 29. The intention of the Legislature to confine the jurisdiction to entertain an application under Section 12 of the D.V. Act to the Judicial Magistrates is clear from provisions in the Act. As long as the Family Court or, for that matter, other civil courts cannot have original jurisdiction to entertain an application under Section 12 of the D.V. Act, no application under Section 12 pending before a Magistrate can be transferred to a Family Court."
It was further noted that:
"A proceeding initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short D.V. Act) is of a civil nature. But, in view of Section 28 of the said Act, such an application is governed by the provisions of the
10 Dr.GRR,J trcrlp_123_2023 Code of Criminal Procedure, 1973. The Magistrate dealing with the application is empowered under sub-section (2) of Section 28 for laying down its own procedure. The forum constituted to deal with an application under Section 12 read with 27 of the D.V. Act is the court of a Judicial Magistrate of the First Class or a Metropolitan Magistrate, as the case may be. This unequivocally indicates the jurisdiction of a Magistrate Court in such cases. Reading the definition of an aggrieved person under the Act, the court added that allowing an application of transfer in DV cases to Family Court or other civil court may amount to denial of a special right, conferred exclusively on woman under the Act and also direct her to a forum totally inconvenient to her."
10. The High Court of Chhattisgarh in Smt. Neetu Singh Vs. Sunil Singh 4 on considering the scheme and object of an enactment under both the Acts, held that:
"9. In view of the above scheme of the Act, especially 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 4 AIR 2008 CHH 1
11 Dr.GRR,J trcrlp_123_2023 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 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. The High Court of Madras in P. Arun Prakash & Ors. Vs. S. Sudhamary 5 observed that:
"60. In the event of transferring the Domestic Violence Act proceedings to the Family Court or Civil Court, the said Courts cannot have any jurisdiction to try and convict under the penal provisions as contemplated under the Domestic Violence Act. Thus, aggrieved women, who instituted the proceedings under Section 12 of the Domestic Violence Act is deprived of getting appropriate reliefs and justice as contemplated under the provisions of the Domestic Violence Act. Thus, such transfers would defeat the very purpose and object of the penal provisions as contemplated under the Domestic Violence Act and the punishments indicated therein. Further, by transferring the Domestic Violence case from Magistrate Court / Metropolitan Magistrate to the 5 2021 SCC OnLine Mad 1954
12 Dr.GRR,J trcrlp_123_2023 Family Court / Civil Court, the High Court is not empowered to confer any additional powers or jurisdiction to such Family Courts or Civil Courts, which is beyond the scope of the provisions of the Family Courts Act and Domestic Violence Act. Thus, the powers not conferred under the Special enactments cannot be exercised nor such an exercise may be done by invoking Article 227 of the Constitution of India.
61. It is relevant to consider that the nature of proceedings, procedures to be followed as well as the appreciation of evidences to be considered by the Criminal Courts and the Civil Courts are distinct and different. Nature of reliefs to be granted by the Criminal Court of Law and Civil Court of Law cannot be compared at all. Thus, the procedural differences and the distinct nature of proceedings would cause injustice to the parties in the event of transferring the Criminal proceedings to the Family Court or Civil Court and therefore, such a transfer would cause prejudice to the aggrieved persons to redress their grievances in the manner prescribed under special enactments."
12. This Court also agrees with the view of the High Courts of Kerala, Chhattisgarh and Madras in this regard. As seen from the facts of the case also, the petitioner was not in India and she left for London to pursue higher studies. It was the respondent No.2, who was moving around the 13 Dr.GRR,J trcrlp_123_2023 Courts, even in the petitions filed by her. Though the petitioner stated about three cases i.e., D.V.C. No.146 of 2021 pending before the I Additional Junior Civil Judge-cum-XII Additional Metropolitan Magistrate at Kukatpally , F.C.O.P.No.336 of 2021 filed by the respondent No.2 against her pending before the Family Court Judge, Ranga Reddy District at L.B. Nagar and F.C.O.P.No.595 of 2021 filed by her against the respondent No.2, pending before the Family Court Judge, City Civil Court, Secunderabad, sought for the transfer of only DVC case filed by her to the Family Court before which F.C.O.P.No.595 of 2021 filed by her was pending, but not sought for transfer of the F.C.O.P.No.336 of 2021 filed by respondent No.2 against her which was pending on the file of the Family Court Judge, Ranga Reddy District at L.B. Nagar.
13. The other specific feature noted in these cases was that both the petitioner and the respondent No.2 filed F.C.O.Ps. separately before different courts seeking the same relief of divorce under Section 13(1)(ia) of the H.M. Act. When both the parties are seeking the same relief, there might not be any requirement of conducting trial in those cases. Thus, by transferring the DVC case to the Family Court, the Family Court might end up trying only the D.V.C. case, which was not a proper forum. For 14 Dr.GRR,J trcrlp_123_2023 the above reason also, it is considered not fit to transfer D.V.C.No.146 of 2021 pending on the file of the I Additional Junior Civil Judge-cum-XII Additional Metropolitan Magistrate at Kukatpally to the file of the Family Court Judge, City Civil Court, Secunderabad, as prayed for.
14. In the result, the petition is dismissed. Miscellaneous petitions pending, if any, shall stand closed.
______________________ Dr. G. RADHA RANI, J Date: 15.04.2024 ss