Bombay High Court
Minoti Subhash Anand vs Subhash Manoharlal Anand on 10 December, 2015
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISC. CIVIL APPLICATION NO. 255 OF 2015
Minoti Subhash Anand, )
Age: 68, Indian inhabitant, residing at )
2301-B and 2401-B, Walkeshwar, )
Om Vikas Co-operative Housing Society )
Ltd. 105-107, Walkeshwar Road, )
Mumbai - 400006 ) ..... Applicant
(Orig.Applicant)
VERSUS
Subhash Manoharlal Anand,
Age : 72, Indian inhabitant, residing at
)
)
2301-B and 2401-B, Walkeshwar, )
Om Vikas Co-operative Housing Society )
Ltd. 105-107, Walkeshwar Road, )
Mumbai - 400006 ) ..... Respondent
(Orig. Respondent)
Mr.Rohan Cama, i/b. Ms.Sapna Rachure for the Applicant.
Mr.Satyavrat Joshi, i/b. Vidhi Partners for the Respondent.
Applicant and Respondent are present in Court.
CORAM : R.D. DHANUKA, J.
DATED : 10th DECEMBER, 2015
JUDGMENT
By this application, the applicant wife has invoked section 24 of the Code of
Civil Procedure, 1908 and has also invoked the general and inherent jurisdiction
and also jurisdiction of this court under Article 227 of the Constitution of India and
seeks transfer of Case No.155/SS/2009 from the learned Magistrate Court 40 th
Court, Girgaon to Family Court Bandra and that the same be tried with Petition
No.A-1215 of 2011 and Petition No.B-31 of 2011 pending before the Family
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Court, Bandra.
2. At the threshold the learned counsel appearing for the respondent raises
preliminary objection about maintainability of this petition on the civil side of this
court on the ground that section 24 of the Code of Civil Procedure, 1908 cannot be
attracted to the facts of this case in view of the fact that the learned Metropolitan
Magistrate, 40th Court before whom the applicant has filed proceedings under the
provisions of 'Protection of Women from Domestic Violence Act, 2005'
(hereinafter referred to as the Domestic Violence Act) is not subordinate to the
High Court.
3.
Some of the relevant facts for the purpose of deciding this petition are as
under :-
4. The applicant got married with the respondent on or about 5th November,
1972. The said marriage was registered under the provisions of the Foreign
Marriage Act. The applicant has two sons out of the said wedlock. The dispute
arose between the parties. It is case of the applicant that the applicant was staying
in her matrimonial home i.e. flat nos.2301-B and 2401-B of the Om Vikas Co-
operative Housing Society Ltd., situated at Walkeshwar, Mumbai - 400 006. It is
the case of the applicant that the respondent had locked the said premises and had
stopped access of the applicant to the said matrimonial home in which she was
staying with her husband. The applicant accordingly filed a complaint under the
provisions of Domestic Violence Act before the learned Metropolitan Magistrate,
Girgaum being Case No. 155/SS/2009.
5. The respondent herein filed two proceedings against the applicant both
before Family Court at Bandra, Mumbai i.e. Petition No. B-31 of 2011 under
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sections 7(1) (c) and (d) of the Family Courts Act inter alia praying for various
reliefs and a separate petition bearing No.A-1215 of 2011 before the Family Court
at Bandra inter alia under the Foreign Marriage Act, 1969 read with sections 27(1)
(b) and 27(1) (d) of the Special Marriage Act, 1954 read with section 7 of the
Family Court Act, 1984 inter alia praying for dissolution of the marriage between
the applicant and the respondent.
6. It is the case of the applicant that the evidence in the proceedings filed by
the husband before the Family Court has not commenced. It is the case of the
respondent that insofar as complaint filed by the applicant before the learned
Metropolitan Magistrate is concerned, the cross examination of the applicant has
commenced. It is not in dispute that both the parties are senior citizens.
7. In view of the objection about the maintainability of this application raised
by the learned counsel for the respondent, the learned counsel for the applicant has
addressed this court on the issue of maintainability first and thereafter on the
merits of this application.
8. Mr.Cama, learned counsel appearing for the applicant submits that the
applicant has filed the present proceedings not only under section 24 of the Code
of Civil Procedure, 1908 but has also invoked the general and inherent jurisdiction
and also specific jurisdiction of this court under Article 227 of the Constitution of
India. Reliance is placed on section 26 of the Domestic Violence Act and it is
submitted that the proceedings filed by his client were under sections 18, 19, 20,
21 and 22 of the said Domestic Violence Act before the learned Metropolitan
Magistrate. He submits that the reliefs which are claimed by the applicant before
the Metropolitan Magistrate under the provisions of the said Domestic Violence
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Act can be granted by the Family Court. Learned counsel appearing for the
respondent does not dispute this proposition.
9. Learned counsel for the applicant also placed reliance on Rule 6 of Chapter I
of Bombay High Court Appellate Side Rules,1960 and would submit that under the
said provision the applicant can file an application for transfer of suits, appeals,
criminal cases or other proceedings pending for trial or disposal in any Civil Court
or Criminal Court subordinate to the High Court or over which the High Court has
power of superintendence, to another Court subordinate to or under the
superintendence of the High Court, or to the High Court itself. He submits that the
proceedings filed by the applicant before the learned Metropolitan Magistrate is
the proceeding over which the High Court has power of superintendence. He
submits that even if there is any conflict between the Code of Civil Procedure,
1908 or Code of Criminal Procedure with the Bombay High Court Appellate Side
Rules, 1960, the Bombay High Court Appellate Side Rules will prevail.
10. Learned counsel for the applicant placed reliance on the judgment of Madras
High Court in case of Selin Raja alias Maria Selin Raj vs. Lawrence alias
Lawrence Antonia (2014) 8 MLJ 400 and would submit that an application filed
by the wife under section 24 of the Code of Civil Procedure, 1908 for transfer of
the complaint filed under the provisions of Domestic Violence Act to the Family
Court was allowed by the Madras High Court in the similar facts in hand before
the Madras High Court. The Madras High Court in the said judgment has held that
under section 26 of the Protection of Women from Domestic Violence Act, 2005,
the Family Court has ample powers to deal with the proceedings initiated by the
wife under the Domestic Violence Act.
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11. Reliance is also placed on section 7 of the Family Court Act, 1984 and it is
submitted that the Family Court can not exercise powers of a Magistrate under the
said provisions insofar as reliefs claimed in the Domestic Violence Act is
concerned. He submits that the Family Court was enacted in 1984 whereas the
Domestic Violence Act was enacted in 2005 and thus section 7(2) of the Family
Court Act, 1984 which provides that the Family Court shall have jurisdiction to
exercisable by the Magistrate of First Class, the Family Court would not be
construed as a Magistrate of the First Class for the purpose of trying the
proceeding under Domestic Violence Act. He submits that in any event, in view of
section 7(2) of the Family Court Act, Family Court can exercise the powers of a
Magistrate of First Class only for the limited events enumerated in the said
provision.
12. Insofar as merits of the case is concerned, learned counsel for the applicant
invited my attention to the various averments made in the complaint filed before
the learned Metropolitan Magistrate relating to the matrimonial home. My
attention is also invited to the averments made by the respondent in both the
proceedings filed by him before the Family Court and it is submitted that the
reliefs claimed in respect of the matrimonial home by the applicant in the
complaint filed before the Metropolitan Magistrate and by the husband before the
Family Court are virtually the same. The facts in both the proceedings are closely
interlinked. He submits that if both the proceedings are heard by two different
courts, it may give rise to conflicting decisions. He submits that the applicant
cannot be expected to pursue the proceedings before two courts when the issue
involved in both cases insofar as matrimonial home is identical at this age.
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13. Learned counsel for the respondent on the other hand in support of his plea
that this court has no jurisdiction to entertain this application for transfer submits
that the present proceedings are not filed by way of a writ petition. He submits
that court exercising power under Article 227 of the Constitution of India or the
court exercising criminal jurisdiction having control over the court of learned
Metropolitan Magistrate only can grant such reliefs of transfer and not in
Misc.Civil Application. He submits that the learned Metropolitan Magistrate is not
subordinate to the High Court exercising civil jurisdiction. In support of this
submission learned counsel for the respondent placed reliance on section 3 of
Code of Civil Procedure. ig He submits that since the learned Metropolitan
Magistrate is not subordinate to the High Court exercising civil jurisdiction,
application filed under section 24 of the Code of Civil Procedure, 1908 on the civil
side is not maintainable. Learned counsel made an attempt to distinguish the
judgment of Madras High Court in case of Selin Raja alias Maria Selin Raj
(supra).
14. Insofar as merits of the case is concerned, it is submitted by the learned
counsel for the respondent that the reliefs claimed by the respondent in the two
proceedings filed before the Family Court are larger reliefs. He submits that the
cross examination of the applicant insofar as her application before the
Metropolitan Magistrate is concerned has already commenced. Learned counsel
for the respondent lastly submits that if this court comes to the conclusion that the
present proceedings are maintainable and the proceedings filed by the applicant
deserves to be transferred to the Family Court, hearing before the Family Court be
expedited.
15. I shall first decide the issue of maintainability raised by the learned counsel
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for the respondent in this application.
16. A perusal of the Miscellaneous Civil Application filed by the applicant
clearly indicates that the applicant has not only invoked the provisions under
section 24 of the Code of Civil Procedure, 1908 but has also invoked general and
inherent jurisdiction and jurisdiction under Article 227 of the Constitution of India.
It is not in dispute between the parties that the reliefs claimed by the applicant
before the learned Metropolitan Magistrate under the provisions of Domestic
Violence Act can be granted by the Family Court. Section 24 of the Code of Civil
Procedure, 1908 in my view will have to be read with the Bombay High Court
Appellate Side Rules, 1960 and in particular Rule 6 of Chapter I. A conjoint
reading of section 24 of the Code of Civil Procedure, 1908 and Rule 6 of Chapter I
of the Bombay High Court Appellate Side Rules, 1960 clearly indicates that an
application for transfer of suits, appeals, criminal cases or other proceedings
pending for trial or disposal in any Civil Court or Criminal Court subordinate to
the High Court or over which the High Court has power of superintendence, to
another Court subordinate to or under the superintendence of the High Court, or to
the High Court can be made before the Single Judge. In my view the High Court
has power of superintendence over the court of learned Metropolitan Magistrate.
Under Rule 6 of Chapter I, the High Court is empowered to transfer any
proceedings even pending before a criminal court which is subordinate to the High
Court or over which the High Court has power of superintendence to another
criminal court which is subordinate to High Court or over which the High Court
has power of superintendence and such court shall have jurisdiction to grant such
reliefs on such transfer.
17. In my view there is no inconsistency between the provisions of section 24 of
the Code of Civil Procedure and Rule 6 of Chapter I of the Bombay High Court
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Appellate Side Rules, 1960. Be that as it may, even if there is any inconsistency
between section 24 of the Code of Civil Procedure, 1908 and Rule 6 of Chapter I
of the Bombay High Court Appellate Side Rules, 1960, in my view the rules of the
Bombay High Court Appellate Side Rules, 1960 would prevail over the provisions
of Code of Civil Procedure, 1908. There is thus no merit in the submission of the
learned counsel for the respondent that this court on civil side cannot pass any
order for transfer of the proceedings pending before the learned Metropolitan
Magistrate to the Family Court by exercising powers under section 24 of the Code
of Civil Procedure which are to be read with Rule 6 of Chapter I of the Bombay
High Court Appellate Side Rules, 1960 or that such order can be passed only in a
writ petition.
18. The Madras High Court with the similar facts in hand in an application filed
under section 24 of the Code of Civil Procedure has transferred the proceedings
filed by the wife under the provisions of Domestic Violence Act before the
Metropolitan Magistrate in that case to the Family Court in which the proceedings
filed by the husband were pending. Madras High Court took a view that under
section 26 of Domestic Violence Act ample powers were given to the Family Court
to deal with the proceedings initiated by the wife under the Domestic Violence Act.
In my view the facts before the Madras High Court are identical to the facts of this
case. I am in respectful agreement with the view taken by the Madras High Court
in case of Selin Raja alias Maria Selin Raj (supra).
19. Insofar as the facts in the present matter are concerned, there is no dispute
that both the parties are senior citizens. A perusal of the complaint filed by the
applicant wife before the learned Metropolitan Magistrate clearly indicates that her
principal grievance against the husband is about her access being denied to the
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matrimonial home. A perusal of the prayers in the said complaint clearly indicates
that the applicant had applied for protection under section 18 of the Domestic
Violence Act prohibiting the respondent from interfering with the access of the
applicant in the matrimonial home and for injunction dispossessing the applicant in
any manner whatsoever from the matrimonial home.
20. A perusal of the proceedings filed by the respondent in the Family Court
also clearly indicates that one of the major relief sought by the respondent husband
against the applicant is for seeking possession of the matrimonial home and/or
injunction against the applicant from entering upon the matrimonial home. On
comparison of the complaint filed by the applicant before the learend Metropolitan
Magistrate with the proceedings filed by the respondent before the family court, I
am of the view that the issues insofar as matrimonial home is concerned are
identical. There may be a common evidence insofar as this issue is concerned in
both the proceedings. In my view if both the proceedings are allowed to be
proceeded before different courts having identical subject matter and issues, there
is likelihood of two conflicting opinions which may be rendered by two courts
thereon. To obviate such situation, in my view the proceedings filed by the
applicant before the Metropolitan Magistrate deserves to be transferred to the
Family Court.
21. Insofar as submission of the learned counsel for the respondent that the cross
examination of the applicant is already begun before the learned Metropolitan
Magistrate is concerned, it is the case of the applicant that the cross examination is
just begun and there is hardly any progress. In my view the learned counsel for the
applicant is right in his submission that since the evidence on the issue of
matrimonial home would be common in both the proceedings, the cross
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examination of the applicant can be continued before the family court from the
stage as it was before the learned Metropolitan Magistrate and the entire
proceedings before the learned Metropolitan Magistrate shall be transferred to the
Family Court and be tried along with the proceedings filed by the respondent.
22. I, therefore, pass the following order :-
(a) Misc.Civil Application No.255 of 2015 is made absolute
in terms of prayer clause (a). Parties are at liberty to lead
common evidence in all the three proceedings.
(b)
It would for the Family Court to decide in what
sequence the proceedings filed by both the parties shall be
heard. Hearing before the Family court is expedited. Both the
parties are directed to co-operate with each other and with the
Family Court in expeditious disposal of the entire proceeding.
It is made clear that the evidence of the applicant which has
commenced before the Metropolitan Magistrate in her
complaint filed before under the provisions of Domestic
Violence Act can be continued from the stage it was before the
learned Metropolitan Magistrate.
(c) If the parties apply for leading any further evidence or
for further reliefs and/or direction, the same shall be
considered by the Family Court on its own merit and in
accordance with law.
(d) The Family Court shall make an endevour to dispose of
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all the three proceedings within 18 months from the date of
commencement of the cross examination.
23. Miscellaneous civil application is disposed of in the aforesaid terms. No
order as to costs.
[R.D. DHANUKA, J.]
