Bombay High Court
Dr. Sandip Mrinmoy Chakrabarty vs Mrs. Reshita Chakrabarty on 26 February, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
bdp
1/36
fca-31.20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 31 OF 2020
ALONG WITH
INTERIM APPLICATION NO. 190 OF 2019
ALONG WITH
INTERIM APPLICATION NO. 596 OF 2019
Dr. Sandip Mrinmoy Chakrabarty
Age: 49 years, Occupation: Doctor,
R/at: F-602, Maestros Salunke Vihar Road,
Also at : 5th Floor, South Block, Sacred World
Wanowrie, Pune - 411 040. ... Appellant/
Applicant
Versus
Mrs. Reshita Sandip Chakrabarty
Age: 46 years, Occupation: Teacher,
R/at: F-601, Maestros Society,
Salunke Vihar Road, Wanowrie,
Pune - 411 040. ... Respondent
******
Mr. Abhijit D. Sarwate a/w Mr. Ajinkya Udane and Ms. Ria Lohade,
for the Appellant in FCA/31/2020 and Applicants in IA/190/2019 and
IA/596/2019.
Mr. Sanjay Bhojwani, for the Respondent.
******
CORAM : R. D. DHANUKA &
V. G. BISHT, JJ.
RESERVED DATE : 8th FEBRUARY, 2021
PRONOUNCED DATE : 26th FEBRUARY, 2021
ORAL ORDER (Per R. D. Dhanuka, J.) :-
. This Court by an order dated 3 rd December, 2020 directed to
place this matter on board for deciding the issue of maintainability
bdp
fca-31.20.doc
raised by the respondent-wife to the extent of challenge to the order of
maintenance passed by the Family Court under the provisions of
Protect of Women from Domestic Violence Act, 2005 (for short 'the
said Domestic Violence Act') on the ground that Criminal Revision
Application is maintainable against that part of the order passed by the
Family Court and not this Family Court Appeal filed under Section 19
of the Family Courts Act, 1984. Some of the relevant facts for the
purpose of deciding the issue of maintainability of the Family Court
Appeal No. 31 of 2020 raised by the respondent are as under :-
2. Respondent had filed a petition for divorce against the appellant
on the ground of adultery and cruelty on 16 th December, 2013. The said
petition was filed under the provisions of Special Marriage Act, 1954.
The appellant had filed written statement and also a counter claim in
the said petition and prayed for divorce on the ground of cruelty
against the respondent.
3. On 11th February, 2014, the respondent-wife filed the
proceedings alleging domestic violence on the part of the appellant
before the learned Judicial Magistrate First Class, Pune. Respondent
bdp
fca-31.20.doc
initially filed a divorce petition bearing P.A. No. 1374 of 2012 on 3 rd
December, 2012 on the ground of cruelty and adultery. The said
petition was however withdrawn on 10th December, 2012. The
respondent subsequently filed the second petition bearing P.A. No.
1426 of 2012 on 17th December, 2012 for divorce.
4. The appellant herein filed Criminal Writ Petition No. 4649 of
2015 against the respondent and another in this Court inter-alia praying
for transfer of the proceedings pending on the file of the learned
Judicial Magistrate First Class at Cantonment Court, Pune to the
Family Court, Pune and for clubbing with petition for divorce filed by
the respondent before the Family Court at Pune. By an order dated 6th
December, 2018 passed by this Court the said Writ Petition was
allowed. This Court noticed that the respondent had also sought
necessary reliefs in the form of grant of permanent physical custody of
the minor son and also alimony pendente lite at Rs.75,000/- per month
under the provisions of the Special Marriage Act, apart from the relief
of dissolution of marriage under the said Act. The respondent no.1 had
also sought to grant permanent alimony and maintenance to the tune of
Rs.2 crores in her favour under the provisions of the Special Marriage
bdp
fca-31.20.doc
Act. The respondent had also prayed for grant of interim maintenance
and also for payment of damages against the appellant.
5. In the said proceedings filed before the learned Judicial
Magistrate First Class, the respondent had filed an application under
Section 12 of the said Domestic Violence Act on 11 th February, 2014.
The parents of the appellant herein were also impleaded as parties
respondent. This Court referred to the prayers in those proceedings
filed by the respondent before the learned Judicial Magistrate First
Class. It was contended by the appellant's advocate before this Court
that the principles of Section 26 of the said Domestic Violence Act,
2005 is to ensure that any relief available under Sections 18 to 22 can
be sought in any legal proceedings before a Civil Court, Family Court
or a Criminal Court, whether such proceedings were initiated before or
after commencement of the said Domestic Violence Act. It was
contended that jurisdiction vested in the Family Court is wide enough
to consider all the reliefs that have been prayed in the application
specifically preferred under Section 12 of the said Domestic Violence
Act, 2005.
bdp
fca-31.20.doc
6. In the said order dated 6th September, 2018 passed by this Court,
after perusing the application filed by both the parties, this Court
observed that there was overlapping of certain reliefs. The reliefs
which were sought in the petition before the Family Court were for
dissolution of marriage along with the other reliefs. The reliefs under
the said Domestic Violence Act were overlapping with some of the
reliefs claimed before the Family Court. The reliefs as regards the
residence order or restrain order in respect of the residential house in
Pune where the respondent-wife was residing was distinct and was not
sought in the proceedings before the Family Court. This Court in the
said order adverted to the provisions of Family Courts Act, 1984 and
the provisions of the said Domestic Violence Act and held that it is
apparent that the said two enactments provided for overriding remedies
and reliefs. The forum of Family Court established under Family
Courts Act, 1984 is competent to exercise all the jurisdiction
exercisable by any District Court or any Subordinate Civil Court under
any law for the time being in force in respect of suits and proceedings
of the nature referred to in the explanation appended to Section 7 and
for the purpose of exercising such jurisdiction under such law, is
deemed to be a District Court or, as the case may be, Subordinate
bdp
fca-31.20.doc
Special Court for the area to which the jurisdiction of the Family Court
extends.
7. It is held that the explanation to the said Section the said section
enumerates the nature of suits and proceedings and series of
proceedings have been included, in respect of which the Family Court
will have jurisdiction. The Family Court would also exercise
jurisdiction over the property of the parties to the marriage, injunction
for circumstances arising out of marital relationship, declaration as to
legitimacy of any person, proceedings for maintenance, guardianship,
access of children, person etc. It is held that the Family Court thus
exercise the powers of Civil Court and by virtue of Section 10 of the
said Act, is deemed to be a Civil Court and has all powers of such a
Court. By Sub-Section 1 of Section 10 of Family Courts Act, 1984, the
provisions of the Code of Civil Procedure are made applicable to the
suits and proceedings before the Family Court except the proceedings
under Chapter IX of the Criminal Procedure Code, 1973 which
continued to be governed by the provisions of Code of Criminal
Procedure.
bdp
fca-31.20.doc
8. This Court in the said order held that as far as conduct of the
proceedings under the said Domestic Violence Act is concerned,
proceedings are initiated on an application being preferred by an
aggrieved person or a protection officer or any other person on behalf
of the aggrieved person seeking various types of reliefs which the
Magistrate is competent to grant under Chapter IX of the Code of
Criminal Procedure, 1973. Section 28 prescribes that all the
proceedings under Sections 12, 18 to 23 are governed by the Code of
Criminal Procedure, 1973. It is however permissible to the Court to lay
down its own procedure for disposal of an application under Section 12
or under sub-Section 2 of Section 23.
9. It is held that the Family Court which is deemed to be a Civil
Court possesses all the powers of a Civil Court including its inherent
power to grant interim relief and therefore a Section analogous to
Section 23 of the said Domestic Violence Act, 2005 did not find place
in the Family Courts Act, 1984. This Court recorded the submission
made by the learned Counsel for the appellant herein in the said order
that those two proceedings could be clubbed together and dealt with by
the same Court i.e. Family Court which was empowered to deal with
bdp
fca-31.20.doc
the said proceedings in the manner which would serve the interest of
justice and the interest of parties in a better manner. The prayer of the
appellant herein was not to deprive the respondent of any reliefs which
she had sought in the domestic violence proceedings but it also only
the claim of the appellant that it could be decided before Family Court
effectively and the Family Court by directing the parties to lead
common evidence in support of the overlapping reliefs which are
sought.
10. This Court accordingly held that the reliefs sought before the
learned Magistrate by the respondent in the domestic violence
proceedings could be effectively tried and granted by the Family Court.
It is held that the Court which is competent to grant final relief is also
competent to grant interim reliefs or to protect the subject matter of the
proceedings before it. It is held that in order to avoid the multiplicity of
litigation and in the interest of parties, it would be appropriate that the
power under Section 24 of the Code of Civil Procedure, 1908 could be
exercised and the proceedings could be clubbed together. Since, the
evidence of respondent-wife in the domestic violence proceedings was
already over, this Court directed the Family Court to rely upon the said
bdp
fca-31.20.doc
evidence recorded in the domestic violence proceedings by the learned
Judicial Magistrate, First Class at Cantonment Court, Pune and from
that stage by taking the said evidence which is also recorded and
directed the Family Court to proceed further and would take into
consideration the averments that have been raised in the domestic
violence application preferred by the respondent before the learned
Judicial Magistrate, First Class. This Court accordingly directed the
Family Court to dispose of the proceedings expeditiously on being
transferred. It is not in dispute that the respondent has not impugned
the said order dated 6th September, 2018 passed by this Court in the
said petition filed under Section 24 of Code of Civil Procedure, 1908.
11. Learned Counsel for the respondent invited our attention to the
impugned judgment dated 17th May, 2019 passed by the Family Court
and would submit that by the said common judgment, the Family Court
disposed of not only the petition for divorce i.e. P.A. No. 1386 of 2013
but also disposed of the Criminal Misc. Application No. 73 of 2018
filed by the respondent. Learned Counsel invited our attention to the
issues in P.A. No. 1386 of 2013 and also separate issues in Criminal
Misc. Application No. 73 of 2018 (old number Criminal Misc.
bdp
fca-31.20.doc
Application No. 68 of 2013) and would submit that the Family Court
has answered the issues framed under the said P.A. No. 1386 of 2013
and in Criminal Misc. Application No. 73 of 2018 separately. He
invited our attention to the operative part of the said judgment and
would submit that directions issued by the Family Court in paragraphs
7 to 27 are under the provisions of the said Domestic Violence Act
whereas the directions issued in the other paragraphs were passed in
P.A. 1386 of 2013 relating to divorce petition.
12. Learned Counsel invited our attention to Section 19(2) of the
Family Courts Act, 1984 and would submit that no appeal is
maintainable under Chapter IX of the Criminal Procedure Code, 1973.
He relied upon Section 19(5) of the Family Courts Act, 1984 and
would submit that except the orders which are appealable under
Section 19 specifically, no appeal or revision can be filed to any Court
from any order or decree of a Family Court. It is submitted that the said
order passed by the Family Court in the Criminal Misc. Application
No. 73 of 2018 could be challenged only by way of Criminal Revision
Application under Section 397 of the Code of Civil Procedure and not
under Section 19(1) of the Family Courts Act, 1984. In support of this
bdp
fca-31.20.doc
submission, learned Counsel strongly placed reliance on the judgment
delivered by a Full Bench of this Court in case of Nandkishor Pralhad
Vyawahare v/s. Mangala, (2018) 3 Mah LJ 913 and in particular
paragraphs 7, 12, 18, 29, 30, 35, 39, 40, 42, 46 and 48.
13. Learned Counsel for the respondents submits that the
proceedings under the provisions of Section 28(1) of the said Domestic
Violence Act are akin to the proceedings under Section 125 of the Code
of Criminal Procedure. He relied upon Rule 6(5) of the Family Court
Rules. Learned Counsel invited our attention to Section 29 and also
Section 12 of the said Domestic Violence Act and submits that
application filed by the respondent-wife to the learned Magistrate was
under Section 12 of the said Domestic Violence Act and thus any order
passed under the said provisions is appealable before the Sessions
Court under Section 29 of the Domestic Violence Act.
14. It is submitted by the learned Counsel that the scope of Criminal
Revision Application under Section 397 of the Code of Criminal
Procedure is limited and not wider as in case of an appeal filed under
Section 19(1) of the Family Courts Act, 1984. Merely, because both the
bdp
fca-31.20.doc
proceedings filed by the respondent i.e. one before the Family Court
under the Special Marriage Act and another before the learned Judicial
Magistrate, First Class under the provisions of Domestic Violence Act
were clubbed together by this Court in the proceedings filed under
Section 24 of the Code of Civil Procedure, 1908, the order passed by
the Family Court in various separate paragraphs of the impugned order
cannot be construed an order appealable under Section 19(1) of the
Family Courts Act, 1984. Both the proceedings filed by the respondent
were for different reliefs by invoking provisions of the two different
Acts i.e. Special Marriage Act and Domestic Violence Act and thus the
remedy of the aggrieved party would be to challenge the order passed
in the two different proceedings, though by a common order would be
as available under the provisions of the two different Acts and not by
filing an appeal under the provisions of the Family Courts Act, 1984.
15. Mr. Sarwate, learned Counsel for the appellant on the other hand
strongly placed reliance on the judgment of this Court delivered on 6 th
September, 2018 in Criminal Writ Petition No. 4649 of 2015 filed by
his client against the respondent and another under Section 24 of the
Code of Civil Procedure, 1908 and would submit that the said
bdp
fca-31.20.doc
judgment delivered by this Court thereby clubbing both the
proceedings which were filed by the respondent against his client has
not been impugned by the respondent. Learned Counsel placed reliance
on Section 12 of the said Domestic Violence Act and would submit that
various reliefs were sought by the respondent before the learned
Judicial Magistrate, First Class in Criminal Misc. Application No. 68 of
2014 by making an application under Section 12 of the said Domestic
Violence Act.
16. It is submitted that the reliefs which can be sought under the
provisions of the said Domestic Violence Act are provided in Sections
18 to 22 of the said Domestic Violence Act. He submits that the remedy
of appeal provided under Section 29 of the Domestic Violence Act
could have been availed by filing an appeal to the Court of Sessions
only if such order on application made by the respondent under the
provisions of the said Domestic Violence Act would have been heard
by the learned Judicial Magistrate, First Class and not in case of an
order passed by the Family Court. He submits that in this case the said
proceedings initially filed by the respondent under Section 12 of the
said Domestic Violence Act though filed before the learned Judicial
bdp
fca-31.20.doc
Magistrate, First Class, were admittedly heard by the Family Court
along with the divorce proceedings filed by her pursuant to the order
dated 6th September, 2018 passed by this Court under Section 24 of the
Code of Civil Procedure, 1908. He submits that Section 29 of the said
Domestic Violence Act thus would not be attracted in this case.
17. Learned Counsel for the appellant submits that the Domestic
Violence Act does not declare any where that whenever reliefs under
Sections 18 to 22 are sought in other pending proceedings before the
Civil Court, Family Court or a Criminal Court, such Court would be
deemed to be the Court of Judicial Magistrate, First Class. He also
placed reliance on paragraph 19 of the said judgment and would submit
that since the reliefs sought by the respondent could be rejected by a
Civil Court and the final order passed by the Family Court would also
indicate the same, the respondent cannot be now allowed to urge that
for part of the reliefs granted by the Family Court in favour of the
respondent, the appellant was required to file a Criminal Revision
Application under the provisions of the Code of Criminal Procedure
read with Section 29 of the said Domestic Violence Act.
bdp
fca-31.20.doc
18. Learned Counsel for the appellant placed reliance on the
unreported judgment of this Court delivered on 15 th November, 2019 in
Misc. Civil Application No. 64 of 2019 in case of Mr. Santosh
Machindra Mulik v/s. Mrs. Mohini Mithu Choudhari and in
particular paragraph 5. He submits that to avoid any conflicting
conclusions in the two proceedings one under the provisions of the
Special Marriage Act and another under the provisions of the Domestic
Violence Act and for various other reliefs, this Court rightly clubbed
both the proceedings by judgment dated 6th September, 2018 in
Criminal Writ Petition No. 4649 of 2015. It is not the case of the
respondent that if the proceedings filed by the respondent under the
provisions of Domestic Violence Act would have been heard by the
learned Judicial Magistrate, First Class, there was no remedy available
to the appellant against the said order.
19. It is submitted that it is not the case of the respondent that even if
the appellant would have filed a Criminal Revision Application against
the said order passed by the Family Court. Insofar as the reliefs under
the provisions of Domestic Violence Act are granted, both the
proceedings arising out of the order passed under the provisions of
bdp
fca-31.20.doc
Special Marriage Act and under the provisions of Domestic Violence
Act could have been clubbed together by this Court, after obtaining an
administrative order from the Hon'ble Chief Justice. He submits that
though the First Appeal was filed by his client on 3 rd September, 2019,
the issue of maintainability is raised only on 3rd December, 2020.
20. Mr. Bhojwani, learned Counsel for the respondent in his
rejoinder arguments submits that the appellant has also not removed
office objection for six months in the Family Court Appeal filed by
him. No urgency was made out in the said Family Court Appeal by the
appellant for the period of eight months. The Family Court had issued a
Distress Warrant against the appellant.
REASONS AND CONCLUSIONS :-
21. The question that arises for consideration of this Court is
whether Appeal under Section 19(1) of the Family Courts Act, 1984 is
maintainable also in respect of the reliefs granted by the Family Court
claimed under the provisions of Domestic Violence Act along with the
reliefs granted in the divorce proceedings under the provisions of
Special Marriage Act by a common judgment or not.
bdp
fca-31.20.doc
22. A perusal of the record indicates that on 16 th December, 2013,
the respondent had filed a Petition (P.A. No. 1386 of 2013) against the
appellant inter-alia praying for divorce on the ground of cruelty and
adultery. On 11th February, 2014, the respondent filed Criminal Misc.
Application No. 68 of 2014 under the provisions of the Domestic
Violence Act before the learned Judicial Magistrate, First Class for
various reliefs. The appellant filed a counter claim in the proceedings
before the Family Court filed by the respondent inter-alia praying for
divorce seeking custody of the child. The respondent filed her evidence
in examination-in-chief in the Domestic Violence proceedings. Her
cross-examination was concluded on 24th July, 2018. However, in view
of the order passed by this Court on 6th September, 2018, the said
proceedings before the learned Judicial Magistrate, First Class in
Criminal Misc. Application No. 68 of 2014 were transferred to the
Family Court and was renumbered as Criminal Misc. Application No.
73 of 2018. She was further cross-examined before the Family Court
upon transfer of those proceedings to Family Court from the learned
Judicial Magistrate, First Class.
bdp
fca-31.20.doc
23. After completion of the cross examination of the respondent in
the Family Court, the respondent examined two more witnesses. After
the evidence of the respondent, the appellant entered into witness box
to prove his case and to disprove the case of the respondent. The
appellant also examined another witness.
24. Insofar as paragraph (46) is concerned, the Family Court framed
several issues in P.A. 1386/2013 filed by the respondent inter alia
praying for divorce on the ground of cruelty and adultery and also the
issues arising out of the counter claim filed by the appellant for seeking
divorce and for permanent custody of minor son. In paragraph (47) of
the impugned judgment, the Family Court framed seven separate issues
in Miscellaneous Application No.73 of 2018.
25. Insofar as issues in P.A.1386/2013 are concerned, the Family
Court held that the respondent herein (original petitioner) had proved
that she had failed to prove that the appellant had voluntary sexual
intercourse with a woman other than the respondent. It is held that the
respondent herein proved that the appellant had treated her with cruelty
and was thus entitled to a decree of divorce. It is held that the
bdp
fca-31.20.doc
appellant had failed to prove that the respondent herein had treated him
with cruelty and was not entitled for permanent custody of the minor
son. It is held that the appellant had failed to prove that the respondent
herein had been incurably of unsound mind and suffering continuously
or intermittently for mental disorder of such kind and to such extent
that the appellant cannot reasonably be expected to live with the
respondent herein.
26. Insofar as the issues framed by the Family Court in
Miscellaneous Application No.73 of 2018 arising out of the Domestic
Violence Act are concerned, the Family Court held that the respondent
herein had proved that the appellant had committed act of domestic
violence against her. It is held that the respondent herein is entitled for
maintenance for herself and for her son. It is held that the respondent
herein is entitled to the relief of injunction restraining the appellant
from causing interference in physical custody of the son with her and is
entitled to the relief of injunction as claimed in prayer clauses (iv), (v)
and (vi) of domestic violence proceedings in respect of Flat No. F-601,
Maestros, Wanowrie. It is held by the Family Court that the respondent
herein is entitled to the damages as claimed in the domestic violence
bdp
fca-31.20.doc
proceedings and is entitled to get the instrument of investments etc.
from the appellant herein.
27. A perusal of the impugned judgment delivered by the Family
Court and more particularly paragraph 160 thereof indicates that in
both the petitions i.e. in divorce petition and domestic violence
petition, the most of the facts are on same footings and the nature of the
evidence to some extent was the same and in view of order dated 6 th
September, 2018 passed by this Court in the writ petition filed by the
appellant herein, the domestic violence case has been transferred to the
Family Court for trial with the divorce petition. The Family Court
followed the judgment of this Court in case of XXX and others vs.
ABC and another delivered on 2nd March, 2016 in Criminal Writ
Petition No. 647 of 2016 and held that the objection to the
maintainability of the domestic violence petition could not be accepted.
28. In paragraph 163 of the impugned judgment, it is held that the
respondent therein had claimed permanent alimony for herself under
the provisions of section 37 of the Special Marriage Act, 1954 and in
domestic violence proceedings. In paragraph 194 of the impugned
bdp
fca-31.20.doc
judgment, the Family Court rejected the claim for damages made by
the respondent herein in domestic violence proceedings on the ground
that the respondent had failed to prove that the appellant herein had
voluntarily sexually intercoursed with the respondent no.2 in the
criminal miscellaneous application. The respondent had claimed the
relief of divorce under the provisions of section 27(1)(a) of the Special
Marriage Act, 1954 on the ground of adultery. The Family Court
considered the evidence led by both the parties in both the proceedings
while considering some of the reliefs claimed under the provisions of
Special Marriage Act as well as under the Domestic Violence Act.
29. Under section 24 of the Code of Civil Procedure, 1908, the High
Court or the District Court may at any stage transfer any suit, appeal or
other proceeding pending before it for trial or disposal to any Court
subordinate to it and competent to try or dispose of the same, or
withdraw any suit, appeal or other proceeding pending in any Court
subordinate to it, and try or dispose of the same; or transfer the same
for trial or disposal to any Court subordinate to it and competent to try
or dispose of the same. Under section 24(2) of the Code of Civil
Procedure, 1908, it is clearly provided that where any suit or
bdp
fca-31.20.doc
proceeding has been transferred or withdrawn under sub-section (1) of
section 24, the Court which is thereafter to try or dispose of such suit or
proceeding may, subject to any special directions in the case of any
order of transfer, either retry it or proceed from the point at which it
was transferred or withdrawn.
30. In this case, the evidence in the proceedings filed by the
respondent before the learned Judicial Magistrate, First Class at
Cantonment Court, Pune was partly recorded. This Court after hearing
both the parties had transferred those proceedings filed by the
respondent under the provisions of the Domestic Violence Act to the
Family Court. Both the parties thereafter participated before the
Family Court. It is not in dispute that the said order passed by this
court under Section 24 of the Code of Civil Procedure in the writ
petition filed by the appellant herein has not been impugned by the
respondent before the Hon'ble Supreme Court.
31. Under section 7 of the Family Court Act, the Family Court
exercises all the jurisdiction exercisable by any District Court or any
subordinate civil Court under any law for the time being in force in
bdp
fca-31.20.doc
respect of suits and proceedings of the nature referred to in the
explanation. Explanation (c) provides that a suit or proceeding
between the parties to a marriage with respect to the property of the
parties or of either of them would be a suit or the proceedings referred
to in sub-section (1) of section 7. Explanation (f) refers to a suit or
proceeding for maintenance. Explanation (g) refers to a suit or
proceeding in relation to the guardianship of the person or the custody
of, or access to, any minor. Sub-section (2) of section 7 provides that
subject to the other provisions of this Act, a Family Court shall also
have and exercise the jurisdiction exercisable by a Magistrate of the
first class under Chapter IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal Procedure, 1973. Sub-
section 2 (b) of section 7 provides that such other jurisdiction as may
be conferred on it by the Family Court by any other enactment subject
to the other provisions of the said Act.
32. The Full Bench of this Court in case of Nandkishor Pralhad
Vyawahare (supra) has dealt with the provisions of sections 12(1), 18
to 22 and 31 and 33 of the Domestic Violence Act and has also dealt
with the power of court under section 482 of the Criminal Procedure,
bdp
fca-31.20.doc
Code, 1974. The Full Bench of this Court considered the issue
'Whether or not the proceedings under the Protection of Women from
Domestic Violence Act, 2008 are in the nature of criminal
proceedings?' . It is held that the Domestic Violence Act nowhere
makes any reference to the character or nature of the proceedings that
are initiated under the Domestic Violence Act.
33. In paragraph (18), it is held that the Domestic Violence Act does
not declare anywhere that whenever reliefs under sections 18 to 22 are
sought in other pending proceeding before a Civil Court, Family Court
or a Criminal Court, such Court would be deemed to be the Court of
Judicial Magistrate, First Class. Silence of the legislature on this issue
is likely to create difficulty in selection of the forum for filing of an
appeal against any order passed in respect of the reliefs under the
Domestic Violence Act by a person not satisfied with the being that
section 29 of the Domestic Violence Act which creates right of appeal,
mandates that such forum would be the Court of Session and it is
possible in a given case that the order granting or rejecting relief may
have been passed by the judicial forum equal in rank or designation as
the Court of Session. In paragraph (19) it is held that the Hon'ble
bdp
fca-31.20.doc
Supreme Court has paved the way for finding out the nature of a
proceeding. The examination of the nature of the rights created, the
reliefs provided and the kinds of final order that could be passed,
would be sufficient indices of the nature of a proceeding.
34. In paragraph 21 of the said judgment, this Court held that a
proceeding in which the party asserts the existence of civil rights
conferred by the civil law or by statute and claims a relief for breach
thereof would be a proceedings of civil nature and the proceeding
which upon conclusion results in the imposition of sentences, such as
death, imprisonment, fine or forfeiture of property would be a
proceeding of criminal nature. It is held that it is not the nature of the
proceeding and it is the nature of the right violated and the relief
provided for violation of the right is what ultimately decides the nature
of a proceeding. This Court held that the preamble of the Domestic
Violence Act indicates that the enactment is intended to provide more
effective of rights of women guaranteed under the Constitution, who
are victims of the violence occurring within the family and for matters
connected there with or incidental thereto. In order to remove the
deficiencies in civil law in respect of a offence punishable under
bdp
fca-31.20.doc
Section 498 A of the Indian Penal Code and keeping in view the rights
guaranteed under Articles 14, 15, 19 and 21 of the Constitution of
India, the parliament enacted the Domestic Violence Act to provide for
a remedy under the civil law.
35. This Court also adverted to Section 26 of the Domestic Violence
Act and held that any relief available under the Domestic Violence Act
can also be sought in any other legal proceeding before a Civil Court,
Family Court or a Criminal Court as long as such proceeding affects
the aggrieved person and the respondents. Section 28 makes applicable
the provisions of the Criminal Procedure Code to all the proceedings
under Sections 12 and 18 to 23 in particular case. Section 29 prescribes
that an appeal from the order made by the Magistrate shall lie to the
Court of Session, within thirty days from the date of an order. This
Court held that these provisions essentially create is a plethora of civil
rights breach of which results in basically providing civil remedies
which are alien to criminal law.
36. These rights and remedies are such as, right against domestic
violence to be realized through a prohibitory order (Section 18), right
bdp
fca-31.20.doc
to reside in a shared household and right from being dispossessed or
disturbed in enjoying the possession of a shared household to be
realized through a suitable restraining order (Section 19), right to get
monetary reliefs and compensation (Sections 20 and 22), right to seek
temporary custody of the child (Section 21) and right to seek interim
and ex-parte orders in certain cases (Section 23). These rights and
reliefs are not found in classical criminal jurisdiction, which is about
punishing the rule breaker by sentencing him to death or imprisonment
or forfeiture of property and in some cases making him pay the
compensation to the victim of crime. The notice that is issued first on
an application under Section 12(1) of the Domestic Violence Act is
civil in nature as can be seen from the provision of Section 13 and
neither any cognizance is taken as under Section 190 of the Criminal
Procedure Code nor any process is issued as under Section 204 of
Criminal Procedure Code in respect of such an application.
37. In paragraphs 30 to 32 of the said judgment, full bench of this
Court held that under Section 12(1) of the Domestic Violence Act, an
application made to the Magistrate, who could be Judicial Magistrate
of the First Class or as the case may be, the Metropolitan Magistrate in
bdp
fca-31.20.doc
Mumbai Metropolitan Region, as defined under Section 2(i), for
seeking various reliefs as provided under Sections 18 to 22 which are
for redressing breach of civil rights and have a civil flavour, not known
to criminal law. It is held that it is not the Judicial Magistrate, First
Class or the Metropolitan Magistrate, as the case may be, who alone is
competent to decide an application under Section 12(1). As even a
Civil Court or a Family Court or any other Criminal Court conducting
any legal proceeding which has the power under Section 26 to do so.
38. It is held that it is possible to obtain these reliefs even in a
petition filed for divorce between the same parties under the provisions
of Hindu Marriage Act, 1955. The rights created and remedies provided
for the breaches thereof under Domestic Violence Act have been
viewed by the Parliament as basically of civil nature and, therefore, by
specific provisions, authority has been conferred even upon the Civil
Courts, in addition to Criminal Courts, under Section 26 of the
Domestic Violence Act, to deal with an application filed for seeking
various remedies provided under Section 18 to 22 of the Domestic
Violence Act. It is held that making of Criminal and Civil Courts
simultaneously as appropriate to obtain the reliefs provided under the
bdp
fca-31.20.doc
Domestic Violence Act is a certain pointer to the fact that the character
of the proceeding is not dependent upon the nature of the tribunal
which is invested with the authority to grant relief, but upon the nature
of the right violated and the kind of relief that may be had. The rights
created and remedies provided for in the Domestic Violence Act are
basically of civil nature.
39. In paragraphs 34 and 35 of the said judgment, the full bench of
this Court held that the applicability of provisions of the Criminal
Procedure Code and providing of criminal consequences for breaches
are only indicative of the intention of the Parliament to make various
civil remedies available under the Domestic Violence Act more
effective and meaningful. Parliament thought in its wisdom that mere
giving of remedies of civil nature or an order of injunction or
prohibition for that matter, may not be sufficient to enable the
aggrieved person realise the benefits of civil remedies. It is held that as
an effective tool in the hands of the Court and the aggrieved person, the
procedure to be followed generally is criminal and breach of protection
order and directions issued in such order constitute two separate and
distinct offences. They have no bearing upon and do not determine the
bdp
fca-31.20.doc
basic character of the proceeding initiated under Section 12(1) of the
Domestic Violence Act which is by and large of the civil nature. These
provisions are best, are the effective instruments by which to make
available speedily the remedies under the Domestic Violence Act to the
aggrieved person and enable her to enjoy the fruits of the remedies.
40. The full bench also adverted to the judgment of Division Bench
of this Court in case of Sukumar Pawanlal Gandhi v/s Bhakti Sushil
Gandhi, 2016 SCC OnLine Bom 12942 following the view taken by
the Hon'ble Supreme Court in case of Kunaprareddy alias Nookala
Shanka Balaji v/s. Kunapareddy Swarna Kumari, (2016) 11 SCC 774
and held that the proceedings under Section 12(1) of the Domestic
Violence Act are predominantly of civil nature and it opined that the
power under Section 482 of Criminal Procedure Code would not be
available for quashing of an application under sub-Section (1) of
Section 12 seeking reliefs under Sections 17 to 22 of the Domestic
Violence Act. However, it gave a clarification that because Sections 31
and 33 create distinct offences, power under Section 482 of Criminal
Procedure Code could also be exercised for quashing of the
prosecution under Sections 31 and 33 of the Domestic Violence Act.
bdp
fca-31.20.doc
41. Section 31 of the Domestic Violence Act provides for penalty for
breach of protection order and interim application order by the
respondent. Such offences shall be as far as practicable be tried by the
Magistrate who has passed the order, the breach of which has been
alleged to have been caused by the accused. Section 33 of the Domestic
Violence Act provides that if any protection officer fails or refuses to
discharge his duties as directed by the Magistrate in the protection
order without any sufficient cause, he shall be punished with
imprisonment of either of one year, or with fine which may extend to
twenty thousand rupees, or with both.
42. A perusal of the relief granted by the Family Court in favour of
the respondent on the application filed by the respondent under the
provisions of the Domestic Violence Act clearly indicates that neither
any of the reliefs falling under Sections 31 or 33 were sought nor were
granted by the Family Court. All the reliefs sought by the respondent
and granted by the Family Court were under the provisions of Sections
19 to 22 of the Domestic Violence Act, which were of the civil nature
and did not attract any offence punishable under criminal law. The
bdp
fca-31.20.doc
learned Counsel for the respondent who raised an issue of
maintainability of the Family Court Appeal insofar challenge to the
order passed by the Family Court granting various reliefs in the
application filed by the respondent under the provisions of the
Domestic Violence Act could not point out any relief granted by the
Family Court attracting any punishment for any alleged offence
committed by the appellant, which could be tried by any Criminal
Court.
43. Both the parties proceeded on the premise before this Court in
the application filed under Section 24 of the Code of Civil Procedure
and thereafter before the Family Court upon transfer of the proceedings
from the Judicial Magistrate, First Class to the Family Court as civil
proceedings failing within the jurisdiction of the Family Court under
Section 7 of the Family Courts Act, 1984. In our view, there is thus no
merit in the preliminary objection raised by the respondent for
maintainability of the appeal filed by the appellant-husband impugning
the reliefs granted by the Family Court in the application filed by the
respondent under the provisions of the Domestic Violence Act on
subsequent transfer to Family Court for adjudication along with the
bdp
fca-31.20.doc
petition for divorce filed by the respondent. The principles laid down
by the full bench of this Court in case of Nandkishor Pralhad
Vyawahare (supra) applies to the facts of this case. We are respectfully
bound by the said judgment.
44. A learned single Judge of this Court in case of Mr. Santosh
Machindra Mulik v/s. Mrs. Mohini Mithu Choudhari dealt with an
application for seeking transfer of a criminal proceedings filed under
Section 12 of the Domestic Violence Act pending before the Court of
Judicial Magistrate, First Class, Pune to the Family Court at Pune to be
tried along with the pending Divorce petition within the parties. It is
held that since from the domestic violence proceeding that may be
heard along with the matrimonial proceeding before the Family Court,
an appeal would lie to this Court, and in that sense, no party can be said
to be loosing his right of appeal, what is lost is a further right of
revision. That, however, is no ground to deny transfer of proceedings
on the basis of principle of justice. The Family Court in this case has
rendered a finding that some of the evidence before the Family Court
in the proceedings was common and was relied upon by both the
parties while addressing the Family Court on the different issues
bdp
fca-31.20.doc
framed by the Family Court in the two proceedings.
45. It was not the case of the respondent that against the proceedings
filed by the respondent under the provisions of the Domestic Violence
Act by the learned Judicial Magistrate, First Class, there was no
remedy available to the appellant against the said order. Even if the
appellant would have filed separate criminal revision application
against the part of the order passed by the Family Court arising out of
the same facts, the appellant could always apply for obtaining an
administrative order from the Hon'ble Chief Justice for clubbing both
the matter together. There is no substance in the submission of the
learned Counsel for the respondent that for part of the order passed by
the Family Court in a composite order, the appellant could not have
filed Family Court Appeal under Section 19 of the Family Courts Act,
insofar as the reliefs under the Domestic Violence Act, the appellant
ought to have filed a criminal revision application.
46. The learned counsel for respondent is clearly unreconciled to the
fact that pursuant to the order of clubbing of both the proceedings in
question a common trial ensued and was taken to logical conclusion by
bdp
fca-31.20.doc
the Family Court. The learned counsel is still harbouring a belief that
impugned order passed by the learned judge of Family Court should be
bifurcated into orders one passed under the provisions of Special
Marriage Act and other under the provisions of Domestic Violence Act
having clothed in the capacity of a magistrate. Of crucial importance
here is that, we reiterate at the cost of repetition, all the reliefs canvased
and sought by the respondent and granted by the learned judge of
Family Court under the provisions of Sections 19 to 22 of the
Domestic Violence Act are predominantly of the civil nature sans
character of criminality.
47. The moment both the proceedings came to be clubbed by judicial
order of this Court and directed to be tried together, the jurisdiction of
the Family Court became abundantly clear over the proceedings under
the Domestic Violence Act. Resultantly, the order passed in the
proceedings became the orders passed by the learned judge of the
Family Court for all purposes and therefore, it would be a fallacy and
myopic to term part of the order pertaining to the reliefs under
Domestic Violence Act as an order amenable to revisional jurisdiction.
This would amount to nothing but a self serving interpretation. The
bdp
fca-31.20.doc
proceedings under the provisions of Domestic Violence Act having
subsumed with the proceedings of Special Marriage Act by virtue of
the order of clubbing and consequently final orders flowing therefrom,
needless to say acquired the characters of orders passed by the learned
judge of Family Court and nothing else. Backed by these reasonings
the remedy against these orders is nothing but Appeal. This is our view
at its simplest.
48. We therefore pass the following order :-
(a) Since, reliefs granted by the Family Court in the
application filed by the respondent under the provisions of
the Domestic Violence Act were of civil nature, this
Family Court Appeal challenging the said common order
including in the proceedings arising out of the provisions
of Domestic Violence Act is maintainable.
(b) It is made clear that this Court has not expressed any
views on the merits of the Family Court Appeal filed by
the appellant and the same would be considered by this
Court at the stage of hearing of the Family Court Appeal.
49. Place the matter on board for directions on 17th March, 2021.
(V.G. BISHT, J.) (R.D. DHANUKA, J.)
