Sunil Babu vs Renju
2021 Latest Caselaw 22800 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MRS. JUSTICE M.R.ANITHA
    TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                     WP(C) (FILING NO. 7025) OF 2021
PETITIONERS

              1.SUNIL BABU,AGED 43,
              S/O MADHUSOODHANAN NAIR, VIJAYA BHAVAN, THURAVOOR PO,
              THURAVOOR PO, CHERTHALA, ALAPPUZHA 688532
              2. VIJAYALAKSHMI AGED 71 YEARS,
              W/O MADHUSOODHANAN, VIJAYA BHAVANAN, THURAVOOR
              CHERTHALA, ALAPPUZHA 688532
              3. SINDHU AGED 48 YEARS,
              D/O MADHUSUDHANAN, NANDHANAM HOUSE, VAIKOM PO
              KOTTAYAM 686 141


              BY ADV JOBY CYRIAC


RESPONDENTS

              RENJU AGED 38
              D/O RADHAMMA, SANJU BHAVANAM,
              KADAKKAL PO, KOLLAM 691 536

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.10.2021, THE COURT ON 23.11.2021, DELIVERED THE FOLLOWING:
 Unnumbered WP(C) (F.No.7025/2021) of 2021
                                             2


                                    JUDGMENT

Dated : 23rd November, 2021

1. This Writ Petition has been filed seeking transfer of

M.C.43/2019 and M.C.45/2019 pending before the Judicial

First Class Magistrate-I, Cherthala to the Family

Court, Alappuzha.

2. Registry noted defect as to whether the Original

Petition under Article 226 of the Constitution of India

is the proper remedy ?

3. Heard the learned counsel for the petitioners.

4. Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi (2017

(14) SCC 373 = AIR 2017 SC 2926 = 2017 KHC 6434), Hiral

P.Harsora and Ors. v. Kusum Narottamdas Harsora and

Ors. (arising out of SLP (Civil) No.9132 of 2015 dated

6.10.2016), Minoti Subhash Anand v. Subhash Manoharlal

Anand (2015 SCC Online Bom 6113 = (2016 1 AIR Bm R

(Cri) 247) as well as Sandip Mrinmoy Chakraboarty v.

Reshita Sandip Chakrabarty & Anr. (Criminal Writ

petition No.4649 of 2015 dated 6.9.2018), were relied Unnumbered WP(C) (F.No.7025/2021) of 2021

on by the learned counsel for the petitioner.

5. The relief sought in the Writ peititon is for an issue

of writ of mandamus seeking for transfer of M.C.43/2019

and 45/2019 (Form No.II) pending before the Judicial

First Class Magistrate-I, Cherthala to the Family

Court, Alappuzha. According to the petitioner,

petitioner had filed Ext.P1 OP(D).326/2019 before the

Family Court, Alappuzha and as a counter blast, the

respondent fled Ext.P2 petition under Section 125 of

Cr.P.C before the Family Court, Alappuzha. The

respondent also filed two applications under Section 12

of the Protection of Woman From Domestic Violence Act,

2005 (DV Act) before the Judicial First Class

Magistrate-I, Cherthala, copy of which is produced as

Ext.P3. Ext.P4 appear to be the printed form of Ext.P3

petition. The only question which arises for

consideration is whether an MC filed under section 12

of the DV Act is liable to be transferred to the Family

Court ?

6. In Vaishali Abhimanyu Joshi's case, the Apex Court was Unnumbered WP(C) (F.No.7025/2021) of 2021

dealing with a question as to whether the claim filed

by the wife seeking right under Section 19 of the DV

Act can be entertained in a suit filed against her

under Section 26 of Provincial Small Cause Courts Act

seeking a mandatory injunction directing her to stop

using the suit flat and to remove her belongings

therefrom.

7. S.19 of the DV act deals with residence orders which

enables a Magistrate while disposing an application

under sub-section (1) of Section 12 on being satisfied

that domestic violence has taken place to pass

residence order for restraining the respondent from

dispossessing; in any other manner disturbing the

possession of the aggrieved person from the shared

household, whether or not the respondent has a legal;

equitable interest in the shared household; directing

the respondent to remove himself from the shared

household; restraining the respondent or any of his

relatives from entering any portion of the shared

household in which the aggrieved person resides; Unnumbered WP(C) (F.No.7025/2021) of 2021

restraining the respondent from alienating or disposing

off the shared household or encumbering the same; or

restraining the respondent from renouncing his rights

in the shared household except with the leave of the

Magistrate; etc etc.

8. The Apex Court considered the scope of Section 26 of

the Act which provides that any relief available under

Section 18 to 22 may also be provided in any legal

proceeding before a Civil Court, family Court or a

Criminal Court affecting the aggrieved person and the

respondent. Since the appellant in that case had set up

her counter claim on the basis of Section 26 it was

held that the proceedings before the Judge of Small

cause is a legal proceeding. On the strength of Section

26 any reliefs available under Section 18 to 22 of the

DV Act can also be sought by the aggrieved person. But

that was not a case of transfer of a case pending

before the Magistrate Court under Section 12 of the DV

Act to any other Court. So the dictum laid down in

Vaishali Abhimanyu Joshi's case is not squarely Unnumbered WP(C) (F.No.7025/2021) of 2021

applicable to the fact situation of this case.

9. Though the learned counsel placed reliance on Hiral

P.Harsora, that was a case in which the constitutional

validity and interpretation of Section 2(q) of the DV

Act has come up for consideration and ultimately the

words 'adult male person' in Section 2(q) were struck

down as the words between the persons similarly

situated and far from being in tune with, are contrary

to the objects sought to be achieved by the DV Act. So

it is also not squarely applicable to the issue mooted

in this writ petition.

10. It is true that in Minoti Subhash Anand's case,

the Honourable Bombay High Court allowed a transfer

petition filed by the wife invoking Section 24 of the

Code of Civil Procedure, 1908 and also jurisdiction

vested with the court under Article 226 of the

Constitution of India seeking for transfer of case

No.155/SS/2009 from the Magistrate Court Girgaon to

Family Court, Bandra.

11. So also in Sandip Mrinmoy Chakraboarty's case the Unnumbered WP(C) (F.No.7025/2021) of 2021

High Court of Bombay allowed a transfer petition filed

by the husband seeking for transfer of a petition

instituted by the wife to Family Court where an OP

filed by the wife seeking for dissolution of marriage,

is pending.

12. But a learned Single Judge of this Court in Rajeev

Thomas and Others v. Sheeja Antony and Others (2018 (4)

KHC 8 = ILR 2018 (3) Ker. 756) dealt with the question

whether a prayer for transfer of case from Magistrate

Court under the DV Act can be transferred to Family

Court for joint trial. Paragraph Nos.12 and 13 of the

above decision are relevant in this context to be

extracted with read as under :-

"12. Division Bench of this Court in Sudhannya v.

Umasanker Valsan, 2012 (4) KHC 901 : 2013 (1) KLT 135 : 2013 (1) KLD 85 : 2013 (1) KLJ 375 had considered the question whether S.26 of DV Act gives an option to the aggrieved person to approach either Magistrate under S.12 of the Act or Family Court, if person needs the reliefs contemplated under S.18 to 22 of the DV Act. It was held that, though S.12 of the DV Act specifically confers power on the Magistrate Unnumbered WP(C) (F.No.7025/2021) of 2021

Court and S.26 of the Act explains that, identical reliefs can be sought before the Family Court, the distinction is so clear that the application under S.12 can be filed only before the Magistrate Court and such a power is not conferred on the Family Court.

13. The distinction has been explained by a learned Single Judge of this Court in M.A.Mony v. M.P.Leelamma and Another, 2007 KHC 3478 : 2007 (2) KLJ 209 : ILR 2007 (2) Ker.394 : 2007 (2) KLT 432, 2007 (1) KLD 405 : 2007 CriLJ 2604. It was held that, though under S.7(2) (b) of 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 S.12 of the DV Act. That reliefs under S.18 to 22 can be claimed before the Family Court in any other proceeding is a world different from the contention that a petition under S.12 can be considered and disposed of oby the Family Court. There is nothing in the language, scheme or purport of the DV Act, which can even remotely suggest that a Civil Court or Family Court is competent of deal with an application under S.12 and grant reliefs under S.18 to 22 of the DV Act."

13. On analyzing Section 26 of the DV Act, it could be

seen that what the Section provides is that, any relief Unnumbered WP(C) (F.No.7025/2021) of 2021

available under Sections 18 to 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. Sub-

section (2) of Section 26 further provides that the

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) further provides that 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.

14. Obviously Section 26 enables a party to seek the

relief available under the DV Act before any Civil

Court, Family Court or criminal court expressly

excludes the relief provided under Section 12. Section

26 only provides an additional benefit to any aggrieved Unnumbered WP(C) (F.No.7025/2021) of 2021

person and respondent to seek reliefs under Sections 18

to 22 in any legal proceeding before a civil Court,

family Court or a criminal Court etc. So also as per

Section 27, the jurisdiction under the Act has been

conferred upon the Court of Judicial First Class

Magistrate or the Metropolitan Magistrate. So also

Section 28 expressly provides that all proceedings

under Sections 12, 18, 19, 21, 22 and 23 and offence

under Section 31 is governed by the provisions of

Cr.P.C though as per sub-section (2), the Court has

been given power to lay down its own procedure for

disposal of the application under Section 12 or sub-

section (2) of Section 23. So also as per Section 29,

the Court of Session is conferred with the appellate

jurisdiction under the Act. Hence I am of the

considered view that the dictum laid down by the

learned Single Judge of this Court in Rajeev Thomas's

case that a transfer of a proceedings under the DV Act

to a Family Court cannot be allowed, is the more

reasonable proposition and hence I am accepting the Unnumbered WP(C) (F.No.7025/2021) of 2021

dictum laid down in the said decision and find that the

Writ petition filed by the petitioner seeking for

transfer of the MC proceedings pending before the

Judicial First Class Magistrate Court-I, Cherthala, to

the Family Court, Alappuzha is not sustainable in law.

15. Accordingly the writ petition is rejected as not

maintainable.

Sd/-

M.R.Anitha, Judge

Mrcs/22.11.