Delhi High Court

Mohit Mehta vs Nayanika Thakur on 24 November, 2020

                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                    Judgment Pronounced on: November 24, 2020

                          +       TR.P.(CRL.) 30/2019

                                  MOHIT MEHTA                                 ..... Petitioner

                                                    Through:     Dr. Harish Uppal & Mr.
                                                                 T.Prasad, Advocates.

                                                    versus

                                  NAYANIKA THAKUR                             ..... Respondent

                                                    Through:     Mr. Jayanth Pawar, Advocate.

                                  CORAM:
                                  HON'BLE MR. JUSTICE BRIJESH SETHI

                                                    JUDGMENT

BRIJESH SETHI, J

1. This is a petition for transfer of criminal cases bearing no.

CC/6527/2019, under Section 498A/406/34 IPC pending in the court

of learned MM, South-West District, Dwarka Courts and cases

bearing no. CC/31435/16, CC/15584/17 and CC/2353/19 pending in

the court of Ms. Prabh Deep Kaur, learned MM, Patiala House

Courts to the court of Family Courts, Patiala House Courts where

cases bearing no. HMA 303/2018 filed under Section 13(1)(ia) (for

Signature Not Verified

By:PRADEEP SHARMA Signing Date:25.11.2020 13:50:11 Divorce), HMA no. 315/2018 filed under Section 13(1)(ib), GS no.

47/2018 and GS 48/2018 between the same parties are pending.

2. Learned counsel for the petitioner has submitted that

petitioner and respondent were married in the year 2002 and out of

the said wedlock, a daughter was born out on 17.12.2008. It is

submitted that due to some matrimonial dispute, petitioner and

respondent are living separately since 14.06.2014 and following

cases are pending between both the parties:-

S.no. Case no. Case under Parties Court where
Section case is pending

47/2018 HMA & G. Thakur Kanta Mehra,
Act 1956 (wife) v. learned Presiding
Mohit Judge, Family
Mehta Court, Patiala
House Courts.

48/2018 HMA & G. Mehta vs. Kanta Mehra,
Act 1956 Nayanika learned Presiding
Thakur Judge, Family
Court, Patiala
House Courts.

303/2018 13(1) (ia) Mehta vs. Kanta Mehra,
HM Act. Nayanika learned Presiding
Thakur Judge, Family
Court, Patiala
House Courts.
4 HMA no. Section Mohit Ms. Swarana
315/2018 13(1)(ib) Mehta vs. Kanta Mehra,

Signature Not Verified

By:PRADEEP SHARMA
Signing Date:25.11.2020
13:50:11
HM Act Nayanika learned Presiding
Thakur Judge, Family
Court, Patiala
House Courts.

31435/2016, DV Act. Thakur(wif Kaur, learned
CC No. e) v. Mohit MM, Patiala
2353/219 Mehta & House Courts.
filed under Ors.
Section 340
Cr.P.C. by
petitioner
and CC no.
15584/2017
for
Execution

6527/2019 498A/506/34 Mohit Chauhan, learned
IPC Mehta & MM, SW District,
ors. Dwarka Courts.

3. Learned counsel for the petitioner has submitted that since

four matters are already pending before the Family Court, Patiala

House Courts, New Delhi, the matters bearing no. CC/6527/2019,

under Section 498A/406/34 IPC pending in the court of Ms. Shivani

Chauhan, learned MM, South-West District, Dwarka Courts and

cases bearing no. CC/31435/16, CC/15584/17 and CC/2353/19

pending in the Court of Ms. Prabhdeep Kaur, learned MM, Patiala

House Courts be also transferred to the Family Court where case

Signature Not Verified

By:PRADEEP SHARMA Signing Date:25.11.2020 13:50:11 bearing no. HMA 303/2018 filed under Section 13(1)(ia) (for

Divorce), HMA no. 315/2018 filed under Section 13(1)(ib), GS no.

47/2018 and GS no. 48/2018 between the same parties are pending

as this will not only save money and effort but also save time and

help in expeditious disposal of the matters as similar facts and

evidence are required to show the contradictions, perjury and false

statements etc.

4. Learned counsel for the petitioner in support of his

submissions has relied upon the following case law:-

a. Social Action forum for Manav Adhikar and Anr vs. Union of India, W.P.(Civil) no. 73/2015; b. Mr. Santosh Machindra Mulik v. Mrs. Mohini Mithu Choudhari, Miscl. Civil Application no. 64 of 2019.

5. Assailing the allegations of petitioner, respondent has filed

reply and stated that Family court has no jurisdiction to deal with

the matter pertaining to Domestic Violence Act in view of Section 7

of the Family Courts Act, 1984. In this regard, learned counsel for

the respondent has relied upon Smt. Neetu Singh v. Sunil Singh,

AIR 2008 Chhattisgarh 1.

Signature Not Verified

By:PRADEEP SHARMA Signing Date:25.11.2020 13:50:11

6. I have considered the rival submissions. Learned counsel for

the petitioner has relied upon Sector 26 of the PWDV Act, 2005.

The said provision runs as follows:-

Section 26 in The Protection of Women from Domestic Violence Act, 2005

26. Relief in other suits and legal proceedings.--

(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

7. Perusal of above provision reveals that complaint case filed

under PWDV Act, 2005 does not fall within the jurisdiction of

Family Court. The provision only contemplate that aggrieved

person can also seek relief available under Sections 18,19,20,21 and

22 of the PWDV Act, 2005 before a Civil Court, Family Court or a

Signature Not Verified

By:PRADEEP SHARMA Signing Date:25.11.2020 13:50:11 criminal Court. Sub-Section 3 of the Act casts a duty on an

aggrieved person that in case any relief has been obtained by the

aggrieved person in any proceedings other than proceedings under

this Act, she shall be bound to inform the Magistrate of the grant of

such relief. Thus, an option has been given to the aggrieved person

to avail relief available to her under Section 18,19,20,21 and 22 of

the PWDV Act in a legal proceedings before a Civil Court, Criminal

Court or Family Court. However, the aggrieved person cannot file

any application under Section 12 of the Act before Family Court

claiming relief under Section 18,19,20 and 21 of the said Act

because such an application, as per PWDV Act, can only be filed

before the learned Magistrate competent to entertain the same.

Thus, the relief claimed by the petitioner i.e. transfer of complaint

pending before learned MM to Family Court cannot be granted for

the simple reason that proceedings pending before the learned MM

under PWDV Act can only be entertained and adjudicated by the

concerned Magistrate. Section 26 of the PWDV Act does not give

any right to the petitioner to get the complaint filed under PWDV

Act transferred to Family Court. The judgment relied upon by

Signature Not Verified

By:PRADEEP SHARMA Signing Date:25.11.2020 13:50:11 learned counsel for the petitioner titled "Social Action forum for

Manav Adhikar and Anr vs. Union of India"(Supra) is

distinguishable on the basis of facts and circumstances stated

therein. So far as the other judgment of Bombay High Court i.e.

"Mr. Santosh Machindra Mulik v. Mrs. Mohini Mithu

Choudhari"(Supra) is concerned, this court is of the opinion that

the ratio of the said judgment is against the scheme of Domestic

Violence Act as well as Family Court Act. The Bombay High Court

has held that it is in the interest of justice if two proceedings i.e.

criminal complaint under Section 12 of PWDV Act and proceedings

pending before Family Court are heard together. The Bombay High

Court is of the opinion that in order to avoid conflicting decision, it

should be heard by one court. It seems that the fact that an

application under Section 12 of the PWDV Act cannot be filed

before a Family court and as per scheme of the Act, it has to be filed

before the Magistrate only who alone is competent to entertain it,

was perhaps not brought to the notice of the court. The judgment

passed by Division Bench of Chhattisgarh High Court in 'Smt

Neetu Singh v. Sunil Singh(Supra),' is in consonance with the

Signature Not Verified

By:PRADEEP SHARMA Signing Date:25.11.2020 13:50:11 scheme of the PWDV Act where the court has held that an

application under Section 12 of the PWDV Act can only be filed

before a Magistrate and not Family Court. The relevant para of the

said judgment runs as follows:-

8. Section 26 of the Act has been inserted with an objective that in addition to the provisions of Section 12 the aggrieved person is entitled to any relief available under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the Act. Sub-section (2) of Section 26 further envisages that any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. Sub-section (3) cast duty on the aggrieved person that in case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under Section 12 of this Act, she shall be bound to inform the Magistrate of the grant of such relief. Therefore, as per Section 26 of the Act, the aggrieved person is also entitled to seek relief as provided under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a civil Court, family Court, or a criminal Court in which the aggrieved person and respondent are party & that relief is in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding. Therefore, an option has been given to the aggrieved person to avail reliefs available to her under Sections 18, 19, 20, 21 and 22 in a legal proceeding pending in a civil Court, criminal Court or

Signature Not Verified

By:PRADEEP SHARMA Signing Date:25.11.2020 13:50:11 family Court in addition to filing of the application under Section 12.

9. In view of the above scheme of the Act, specially 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 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.( Emphasis supplied)

8. Thus, an application can be filed before Family Court by the

aggrieved person claiming relief as mentioned in Section 26(1) of

the PWDV Act. However, if the aggrieved person intends to file an

application under Section 12 of the PWDV Act, it can only be filed

before a Magistrate. Aggrieved person has been defined in Section

2(a) of the PWDV Act and it runs as under:-

(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

Signature Not Verified

By:PRADEEP SHARMA Signing Date:25.11.2020 13:50:11

9. Perusal of the above definition reveals that it is the woman

who can claim relief under Section 18 to 21 of PWDV Act before

other courts including Family Court. Section 26 of the PWDV Act

does not entitle the petitioner i.e. Mohit Mathur to claim any relief

as envisaged in the said Section.

10. So far as prayer of the petitioner for transfer of case titled

'State vs. Mohit Mehta & Ors. bearing no. CC/6527/2019, under

Section 498A/406/34 IPC pending in the court of Ms. Shivani

Chauhan, learned MM, South-West District, Dwarka Courts to the

Family court is concerned, the same also cannot be acceded to for