Cesil Jesudas vs Sandhya J S
2022 Latest Caselaw 1521 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                 &
         THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
 TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
                    OP (FC) NO. 556 OF 2021
  (OP (GW) 2305/2020 OF FAMILY COURT, THIRUVANANTHAPURAM)
PETITIONER/PETITIONER:

         CESIL JESUDAS
         AGED 43 YEARS
         S/O. YESUDAN, RNRA-A28 TC 14/1061-4, DEEPASREE,
         RAJEEV NAGAR, VAZHUTHACAUD, THYCAUD P.O,
         THIRUVANANTHAPURAM

         BY ADVS.
         V.M.KRISHNAKUMAR
         P.R.REENA
         P.S.SIDHARTHAN
         MAYA M.



RESPONDENT/RESPONDENT:

         SANDHYA J S,
         AGED 37 YEARS
         D/O.SELESTHEENAL, SHRA 302, RAGAM VEEDU,
         KOTTAMUGAL, NALANCHIRA P.O, THIRUVANANTHAPURAM
         PIN 695 015

         BY ADV R.UMASANKAR




     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
15.02.2022,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 OP(FC) No.556 of 2021                      2


                     A.MUHAMED MUSTAQUE &                              C.R
                         SOPHY THOMAS, JJ.
                   ------------------------------------
                        O.P. (FC) No.556 of 2021
                   ------------------------------------
             Dated this the 15th day of February, 2022

                           JUDGMENT

Sophy Thomas, J.

The short question that arises for consideration is, whether

the Family Court can proceed with the petition for guardianship

and custody of the minor child, when there is an interim order

for custody passed by the Magistrate under Section 23(2) of the

Protection of Women from Domestic Violence Act, 2005

(hereinafter referred as the 'D.V. Act').

2. The petitioner is the father of the minor children Bevin

Cesil and Bryan Cesil and the respondent is their mother. The

marriage between the petitioner and respondent was solemnised

on 11.04.2007 and they were living together with their children

at his house. During Onam vacation, in September 2019, the

respondent went to her paternal house along with the children

and never returned thereafter. She filed M.C No.100 of 2019

before the Judicial First Class Magistrate Court-V,

Thiruvananthapuram and obtained protection order against the

petitioner in which he was restrained from taking custody of the

minor children. Meanwhile, she filed O.P No.374 of 2020 seeking

a decree of divorce, and the petitioner filed O.P (G&W) No.2305

of 2020, for getting permanent custody of the children. During

counseling, the respondent produced the order of the Magistrate,

to show that the petitioner was restrained from taking custody of

the children and so, according to her he cannot seek custody of

the children before the Family Court. Apprehending that he may

not get custody of the children because of Ext.P1 order of the

Magistrate, he approached this Court with this petition for a

clarification that, pendency of Ext.P1 order will not be a bar for

granting custody of the children as per Ext.P3 O.P filed by him.

3. Sri.Umasankar, learned counsel appearing for the

respondent vehemently opposed the petition saying that, without

challenging Ext.P1 order of the Magistrate, the petitioner cannot

seek custody of the children before the family court.

4. For answering that challenge, we have to find out the

impact of an interim order passed by a Magistrate under Section

23(2) of the D.V. Act. Section 12 of the said Act reads thus:

"An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under that Act."

5. Section 19 of the D.V. Act deals with residence orders.

Section 20 deals with monetary reliefs, Section 21 deals with

custody orders and Section 22 deals with compensation orders.

Section 21 of the D.V. Act reads as follows:

"21. Custody orders.--Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent."

6. Section 23 of the D.V. Act deals with the power of the

Magistrate to grant interim and ex parte orders. It says that, in

any proceedings before him under this Act, the Magistrate may

pass such interim order as he deems just and proper. If the

Magistrate is satisfied that an application prima facie discloses

that the respondent is committing, or has committed an act of

domestic violence or that there is a likelihood that the

respondent may commit an act of domestic violence, he may

grant an ex parte order on the basis of the affidavit in such form,

as may be prescribed, of the aggrieved person under section 18,

section 19, section 20, section 21 or, as the case may be,

section 22 against the respondent.

7. So, obviously, the Magistrate has got the power to pass

orders for temporary custody of children under Section 21 of the

Act, and an interim or ex parte order also can be passed for

custody, under the said Section, on disclosure of a prima facie

case, on the basis of an affidavit filed by the aggrieved person.

The power of the Magistrate under Section 21 to grant temporary

custody of the child is independent of the provisions of the

Guardians & Wards Act, 1890.

8. The very objective of the D.V. Act is to protect women

from violence that occurs within the family and for matters

connected therein. In fact, it was not intended to create another

forum for adjudication of disputes arising out of matrimonial

relationship. So, the proceedings under the Act has to be

understood as supplemental provision, besides the right to

adjudicate their issues in a competent Civil Court, Family Court

or Criminal Court. The protective measures envisaged under

the Act include residence orders, monetary reliefs, custody

orders, compensation orders etc. The main objective of such

proceedings is to protect the women, rather than adjudicating

the disputes.

9. As per Section 23(2) of the Act, if it deems just and

proper, a Magistrate can pass an interim order. Likewise, a

Magistrate can grant an ex parte order on the basis of an

affidavit. So, no adjudicatory process is involved in passing such

interim/ex parte orders by the Magistrate. If the rights of the

parties are not decided conclusively in passing such interim/

ex parte orders, the outcome cannot be treated as an outcome of

adjudication. The procedure contemplated under the Act is in the

nature of inquiry of inquisitorial procedure. While exercising the

powers under the Act, the Magistrate is not deciding the dispute

as in an adversarial system, but only taking measures to protect

the aggrieved person/women. The outcome of an inquiry in a

remedial procedure should not have an impact, in adjudication of

disputes between the same parties before a competent court or

forum. The inquiry being treated as an ancillary or incidental

procedure, to the main issue of domestic violence, any outcome

of such proceedings will not be decisive in the subsequent

proceedings. So, the inquiry and the orders interim or final,

passed by the Magistrate under the D.V. Act to ensure protection

of the aggrieved person will not bar the Family Court or any

other competent court having power to adjudicate such dispute.

The outcome in such inquiry proceedings may be relevant while

deciding the dispute in subsequent proceedings before the

competent court under Sections 42 or 43 of the Indian Evidence

Act, 1872 (reliance placed on Mahinkutty vs. Anshida 2021 (3)

KLT 230).

10. The pendency of proceedings under the D.V. Act, or

any order, interim or final, passed under the Act, is not an

embargo for initiating or continuing any civil proceedings, which

relate to the subject matter of the interim/final order passed

under the Act, as held by the Apex Court in Satish Chander

Ahuja vs. Sneha Ahuja (2020 (6) KLT 208 SC).

11. A Division Bench of this Court in Narayana Elayathu

vs. Sandhya (2022 (1) KLT 77) observed that, in a suit or

proceeding in relation to the guardianship of the person or the

custody of, or access to any minor, the jurisdiction of the District

Court under Sections 7 and 8 of the Guardians & Wards Act,

1890 is taken away by the Family Court as per Section 7(1)

explanation (g) of the Family Courts Act, 1984. The Family

Courts are set up for the settlement of family disputes, to

exclusively provide within the jurisdiction of the Family Courts,

the matters relating to matrimonial relief including nullity of

marriage, judicial separation, divorce, restitution of conjugal

rights, declaration as to the validity of marriage, matrimonial

status of any person, property of the spouses, declaration as to

the legitimacy of any person, guardianship of a person or the

custody of any minor, maintenance etc. etc. The nature of

suits and proceedings coming within the jurisdictional

competence of a Family Court is enumerated in Section 7 of the

Family Courts Act. When parties to a marriage or an erstwhile

marriage seek guardianship of the person or the custody of, or

access to their minor children, it is exclusively a suit or

proceeding coming under explanation (g) to Section 7(1) of the

Family Courts Act.

12. The orders passed by the Magistrate under the D.V.

Act interim or final will not in anyway affect the jurisdictional

competence of the Family Court to adjudicate upon the

guardianship, custody and access of minor children exclusively

coming under explanation (g) to Section 7(1) of the Family

Courts Act.

13. The Scheme of the D.V. Act, does not contemplate

that any order, interim/final, passed under the said Act, prevents

any court of competent jurisdiction, civil, criminal or Family

Court, from taking cognizance of a suit or holding of trial. The

orders passed under the D.V. Act cannot be held to be orders or

judgments passed in exercise of any matrimonial jurisdiction by

the court.

14. There can be no applicability of principle of res

judicata when orders of criminal courts are pitted against

proceedings in civil court. The proceedings under the D.V. Act

and proceedings before a civil court, Family Court or a criminal

court are independent proceedings. The proceedings under the

D.V. Act are proceedings which are to be governed by the Code

of Criminal Procedure, 1973.

15. It is well settled that, a decision by a criminal court

does not bind the civil court, while a decision by the civil court

binds the criminal court. In Seth Ramdayal Jat vs. Laxmi

Prasad (2009 (3) KLT SN 11 (Case No.14), the Apex Court held

that the judgment in a criminal case is admissible for a limited

purpose. Relying only on, or on the basis thereof, a civil

proceeding cannot be terminated, but that would not mean that

it is not admissible for any purpose whatsoever. The standard of

proof is different in civil and criminal cases. In civil cases it is

preponderance of probabilities while in criminal cases it is proof

beyond reasonable doubt. There is neither any statutory nor any

legal principle, that findings recorded by the court either in civil

or criminal proceedings shall be binding between the same

parties, while dealing with the same subject matter, and both the

cases have to be decided on the basis of the evidence adduced

therein. If the judgment of a criminal court is relevant as per

Section 43 of the Evidence Act, that judgment can very well be

taken note of, and there is no embargo on the civil court to place

reliance upon it as a corroborative material.

16. So, Ext.P1 order passed by the Magistrate under the

D.V. Act, restraining the petitioner from taking custody of the

minor children will not stand in the way of the petitioner seeking

guardianship and permanent custody of his minor children before

the Family Court, which is the competent court under

Section 7(1) explanation (g) of the Family Courts Act to

adjudicate upon that issue.

So, the original petition stands allowed clarifying that,

Ext.P1 order will not be a bar in adjudicating Ext.P3 petition by

the Family Court and to pass appropriate orders therein.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

SOPHY THOMAS JUDGE

smp

APPENDIX OF OP (FC) 556/2021

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE ORDER DATED 30-10-2019 IN CMP NO. 3354/2019 IN MC 100/2019 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-V, THIRUVANANTHAPURAM

Exhibit P2 TRUE COPY OF OP NO.374/2020 OF FAMILY COURT THIRUVANANTHAPURAM

Exhibit P3 TRUE COPY OF OP(GW) 2305/2020 FILED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM

RESPONDENT'S EXHIBITS: NIL.

True Copy

P.S to Judge

smp