Madras High Court
P.Arun Prakash vs S.Sudhamary on 1 April, 2021
Tr.CMP SR No.15785 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01-04-2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P SR No.15785 of 2021
in
D.V.C.No.43 of 2019
1.P.Arun Prakash
2.K.Paramasivam
3.P.Chandraprabha .. Petitioners
vs.
S.Sudhamary .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code read with Article 227 of the Constitution of India, to withdraw the
proceeding in DVC No.43 of 2019 on the file of the learned XVII
Metropolitain Magistrate, Saidapet and transfer the same to the file of the V
Additional Family Court at Chennai.
For Petitioners : Mr.S.B.Viswanathan
1/42
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ORDER
The Registry, High Court of Madras, raised an objection
regarding the maintainability of the Transfer Civil Miscellaneous Petition as
the relief sought for in the petition is to withdraw the proceedings in DVC
No.43 of 2019 from the file of the XVII Metropolitan Magistrate Court,
Saidapet, Chennai and transfer the same to the file of the V Additional
Family Court at Chennai. Thus, this case is listed under the caption 'For
Maintainability'.
FACTS OF THE CASE
2. The marriage between the 1st petitioner/husband and the
respondent was solemnized on 06.06.2016 at Coimbatore as per the Hindu
Rites and Customs. The 1st petitioner and the respondent started their
matrimonial life in Singapore and thereafter, misunderstanding arose
between them and the 1st petitioner/husband stated that the respondent/wife
deserted him on 02.08.2018. Thus, the 1st petitioner/husband issued notice
and filed a petition in O.P.No. 4652 of 2018 on the file of the V Additional
Family Court, Chennai, seeking the relief of Restitution of Conjugal Rights.
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3. The respondent/wife filed a Domestic Violence Complaint to
the Social Welfare Officer, Chennai and after conducting an enquiry, the
Social Welfare Officer has filed a Report to the XVII Metropolitan
Magistrate's Court, Saidapet, Chennai, and the learned Magistrate took
cognizance of the complaint and numbered the petition as D.V.C.No.43 of
2019.
4. The respondent/wife further filed the Maintenance Case in
M.C.No.482 of 2018, seeking maintenance, which is pending before the V
Additional Family Court, Chennai. Under these circumstances, the present
transfer petition is filed to transfer the Domestic Violence Act case in
D.V.C.No.43 of 2019 pending before the learned XVII Metropolitan
Magistrate's, Saidapet, Chennai to the V Additional Family Court, Chennai
for joint trial.
5. The question of legal importance arose in the present petition is
that, whether the High Court in exercise of the power of superintendence
under Article 227 of the Constitution of India, transfer the criminal
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proceedings from the Criminal Court / Magistrate Court to the Family Court
/ Civil Court, when the powers of transfers of cases are already conferred on
the High Court under the provisions of the Criminal Procedure Code and
Civil Procedure Code.
6. Presuming, the powers under Article 227 of the Constitution of
India is exercised, in order to transfer of a criminal case to a Civil Court or
Family Court, what would be the consequences and the provisions
governing such transfers and the Constitution of Special Courts under the
Special enactments.
7. Yet another question raised is that whether the judgment of this
Court in the case of Mohana Seshadri Vs. Anuja, reported in CDJ 2020
MHC 944 can be followed as a precedent, so as to pave way for the litigant
to file a transfer petition in order to transfer a criminal proceedings to the
Civil Court or Family Court.
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8. In the said case of Mohana Seshadri (supra), the High Court
exercised the powers under Article 227 of the Constitution of India and
transfered the cases only on extraordinary circumstances, taking note of the
particular facts and circumstances. Thus, such an exercise of power of
discretion, exercised occasionally with reference to the facts cannot be
construed as a precedent, so as to develop the practice of filing a transfer
petition under Article 227 of the Constitution of India for transferring a
criminal proceedings from the Court of Criminal law to the Civil Court or
Family Court. Thus, the case cited by the petitioners need not be relied upon
for the purpose entertaining a transfer petition under Article 227 of the
Constitution of India. In the present petition, this Court has to consider the
provisions of the Special Acts namely the Domestic Violence Act, Family
Courts Act and also the Code of Criminal Procedure for the purpose of
forming an opinion.
9. The judicial institutions constituted pursuant to the provisions
of the Special Acts are bound to function within the provisions of the
Special Statute and excessive exercise of jurisdiction beyond the scope of
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the Statute is impermissible. Thus, the objections regarding the
maintainability of the transfer petition under Article 227 of the Constitution
of India raised by the Registry, High Court, is to be decided independently
with reference to the provisions of the Special Acts and the Code of
Criminal Procedure.
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,
2005 [in short, 'DV Act']
10. The statement of objects and reasons for enacting the
Domestic Violence Act clearly stipulates that in order to protect the women
against violence of any kind occurring within the family. The phenomenon
of Domestic Violence is widely prevalent but has remained largely invisible
in the public domain. Presently, where a woman is subjected to cruelty by
her husband or relatives, it is an offence under Section 498-A of the Indian
Penal Code. The Civil law does not however address the phenomenon in its
entirety.
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11. With the above, let us now consider various provisions of the
'DV Act' for institution of proceedings as contemplated under the Domestic
Violence Act.
12. Section 2(f) defines 'domestic relationship'"; Section 2 (i)
defines "Magistrate" means the Judicial Magistrate of the first class, or as
the case may be, the Metropolitan Magistrate, exercising jurisdiction under
the Code of Criminal Procedure, 1973 (2 of 1974) in the area, where the
aggrieved person resides temporarily or otherwise or the respondent resides
or the domestic violence is alleged to have taken place; Section 3 provides
'Definition of domestic violence'. Accordingly, for the purposes of this Act,
any act, omission or commission or conduct of the respondent shall
constitute domestic violence in case it:
“(a) harms or injures or endangers the health, safety, life,
limb or well being, whether mental or physical, of the
aggrieved person or tends to do so and includes causing
physical abuse, sexual abuse, verbal and emotional abuse
and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved
person with a view to coerce her or any other person
related to her to meet any unlawful demand for any dowry
or other property or valuable security; or
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(c) has the effect of threatening the aggrieved person or
any person related to her by any conduct mentioned in
clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or
mental, to the aggrieved person.
Explanation I.-For the purposes of this section,-
(i) “physical abuse” means any act or conduct which is of
such a nature as to cause bodily pain, harm, or danger to
life, limb, or health or impair the health or development of
the aggrieved person and includes assault, criminal
intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature
that abuses, humiliates, degrades or otherwise violates the
dignity of woman;
(iii) "verbal and emotional abuse" includes-
(a) insults, ridicule, humiliation, name calling
and insults or ridicule specially with regard to
not having a child or a male child; and
(b) repeated threats to cause physical pain to
any person in whom the aggrieved person is
interested.
(iv) "economic abuse" includes-
(a) deprivation of all or any economic or financial
resources to which the aggrieved person is entitled under
any law or custom whether payable under an order of a
court or otherwise or which the aggrieved person requires
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out of necessity including, but not limited to, household
necessities for the aggrieved person and her children, if
any, stridhan, property, jointly or separately owned by the
aggrieved person, payment of rental related to the shared
household and maintenance;
(b) disposal of household effects, any alienation of assets
whether movable or immovable, valuables, shares,
securities, bonds and the like or other property in which
the aggrieved person has an interest or is entitled to use by
virtue of the domestic relationship or which may be
reasonably required by the aggrieved person or her
children or her stridhan or any other property jointly or
separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to
resources or facilities which the aggrieved person is
entitled to use or enjoy by virtue of the domestic
relationship including access to the shared household.
Explanation II.—For the purpose of determining whether
any act, omission, commission or conduct of the
respondent constitutes “domestic violence” under this
section, the overall facts and circumstances of the case
shall be taken into consideration.”
13. Section 12 contemplates 'Application to Magistrate' and
accordingly, 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 relief under this Act.
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14. Section 26 provides 'Relief in other suits and legal
proceedings'. Sub-clause (1) states that 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. Sub-clause (2) states 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.
15. Section 26 is an enabling provision, facilitating the litigants to
seek other reliefs of civil nature before the civil court and family court. The
said provision would not change the character of the criminal proceedings
to be conducted by the Magistrate court under the provisions of the
Domestic Violence Act.
16. Section 27 denotes the 'Jurisdiction', which is extracted
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hereunder:-
"27. Jurisdiction.-(1) The court of Judicial Magistrate
of the first class or the Metropolitan Magistrate, as the
case may be, within the local limits of which-
(a) the person aggrieved permanently or temporarily
resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is
employed; or
(c) the cause of action has arisen, shall be the competent
court to grant a protection order and other orders under
this Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable
throughout India."
17. Section 28 deals with the 'Procedure'. Sub-clause (1)
contemplates states that "Save as otherwise provided in this Act, all
proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under
section 31 shall be governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974)."
18. Thus, the provisions of the 'DV Act' are unambiguous that an
application is entertainable before the Judicial Magistrate Class I or the
Metropolitan Magistrate as the case may be for seeking one or more reliefs
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under the Act.
19. Let us now look into Section 31, which contemplates -
'Penalty for breach of protection order by respondent'. A breach of
protection order, or of an interim protection order, by the respondent shall
be an offence under this Act and shall be punishable with imprisonment of
either description for a term which may extend to one year, or with fine,
which may extend to twenty thousand rupees, or with both.
20. Section 33 deals with 'Penalty for not discharging duty by
Protection Officer'. If any Protection Officer fails or refuses to discharges
his duties as directed by the Magistrate in the protection order without any
sufficient cause, he shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine which may
extend to twenty thousand rupees, or with both.
21. Section 29 deals with 'Appeal' - There shall lie an appeal to
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the Court of Session within thirty days from the date on which the order
made by the Magistrate is served on the aggrieved person or the respondent,
as the case may be, whichever is later.
22. Cogent reading of all the provisions considered above,
undoubtedly, the proceedings under the 'DV Act' are regulated under the
Code of Criminal Procedure as contemplated under Section 28 of the 'DV
Act'. Thus, a complaint registered under Section 12 of the Domestic
Violence Act is criminal proceedings on the criminal side of the judiciary
and accordingly, the said proceedings are to be regulated under the Criminal
Procedure Code.
23. Section 26 of the 'DV Act' contemplates that reliefs under
Sections 18 to 22 may be sought for by instituting proceedings before the
Civil Court, Family Court or the Criminal Court. The said provision grant
liberty to the litigants to file independent applications/petitions before the
Family Court, Civil Court or Criminal Court under various provisions of the
other Statutes. For example, a custody petition may be filed under the
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Guardian and Wards Act, a Maintenance Petition may be filed under Section
125 of the Cr.P.C., or before the Family Court as the case may be and such
reliefs of Civil nature is contemplated, enabling the litigants to redress their
grievances with reference to the other enactments. Such facility or option
provided to the litigants would not change the character of the nature of
criminal proceedings instituted under the 'DV Act' and it is only an alternate
relief and in the event of obtaining any such order from any other Court, it is
mandatory that such reliefs obtained must be informed before the Magistrate
Court in the Domestic Violence Act proceedings. This being the rider clause
as contemplated, the intention of the legislatures are to provide multiple
options to the women litigants to redress their grievances in a speedy
manner and in the event of obtaining any such reliefs from any other Court,
the said order or proceedings must be informed to the Magistrate Court in
respect of the Domestic Violence litigation instituted under Section 12 of
the 'DV Act'.
24. The relief granted under Section 26 of the Domestic Violence
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Act is in addition to the reliefs, which can be obtained under the 'DV Act'
itself. Thus, it is an additional provision as contemplated, facilitating the
women litigants to avail the remedies with reference to the other special
enactments. In other words, the 'DV Act' would not prohibit the litigants
from redressing their grievances before the Civil Court under a particular
enactment, which provides reliefs for the women litigants.
25. Section 26 further permits an aggrieved person to seek reliefs
in a pending proceedings, which were instituted even before the
commencement of the Domestic Violence Act. Thus, the legislative
intention under Section 26 is to provide multiple options to the aggrieved
women litigants to redress their grievances in a speedy manner and further,
not to prohibit such litigants from approaching the Civil Court for
appropriate relief as contemplated under various other enactments, even
after the institution of proceedings under 'DV Act'.
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26. Sub-Clause (2) to Section 26 is clear 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. Therefore, the said provisions under the
'DV Act' would not alter the nature of criminal proceedings instituted under
the 'DV Act'.
27. Sub-clause (3) to Section 26 contemplates 'in case any relief
has been obtained by the aggrieved person in any proceedings other than a
proceeding under the 'DV Act', she shall be bound to inform the Magistrate
of the grant of such relief'. Thus, on a conjoint reading of sub-clause to
Section 26 make it very clear that it is an enabling provision and in the event
of obtaining any relief from other Courts, namely, Civil Court or Family
Court or Criminal Court, the said facts are to be placed before the
Magistrate Court in a Domestic Violence case instituted under the Act.
28. It is needless to state that the right of appeal is a Statutory
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right under the Domestic Violence Act. Section 29 contemplates appeal to
the Court of Sessions and, therefore, for all purposes, the proceedings under
the Domestic Violence Act is a criminal proceeding, which is regulated
under the Cr.P.C and throughout the Act, the provisions contemplates the
powers of Judicial Magistrate/Metropolitan Magistrate.
29. Perusal of Section 3 of the Domestic Violence Act,
unambiguously clarifies that all such offences as contemplated are relatable
to bodily injuries and other related offences. Thus, those offences defined
Section 3 of the Domestic Violence Act are criminal in nature and certain
offences are falling under the provisions of the Indian Penal Code.
30. Sub clause (a), (b), (c), (d) to Section 3 of the Domestic
Violence Act deals with the offences relatable mostly to the bodily injuries
and other criminal natured offences. Thus, the Domestic Violence Act is a
Special Act enacted for the purpose of dealing with the Domestic Violences,
which all are contemplated and defined under the Act and the same cannot
be compared with other civil natured proceedings, to be initiated under the
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provisions of the Civil Procedure Code, Family Courts Act or the Marriage
laws.
31. The legal maxim is Generalia Specialibus non derogant
(when there is a conflict, general and special provision, the later will
prevail). In this context, it is to be held that Special Act will prevail over the
General laws. When a Special enactment is in force to deal with certain
specific offences, in the present context, Domestic Violence Act, then the
other general laws cannot have any application and all such Domestic
Violences are to be tried by following the procedures as contemplated under
the Special Enactment and this being the legal principles, the application
under Section 12 of the Domestic Violence Act cannot be construed as a
civil natured proceedings.
FAMILY COURTS ACT, 1984
32. Section 3 of the Family Courts Act, 1984 provides
Establishment of Family Courts. Chapter III, Section 7 of the Family Courts
Act deals with 'Jurisdiction' which provides as under:
“7. Jurisdiction.—(1) Subject to the other
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provisions of this Act, a Family Court shall—
(a) have and 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; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or, as the
case may be, such subordinate civil court for the area to which
the jurisdiction of the Family Court extends.
Explanation.—The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:—
(a) a suit or proceeding between the parties to a marriage
for a decree of nullity of marriage (declaring the marriage to
be null and void or, as the case may be, annulling the
marriage) or restitution of conjugal rights or judicial
separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the
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validity of a marriage or as to the matrimonial status of any
person;
(c) a suit or proceeding between the parties to a marriage
with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of
the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise—
(a) 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 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by
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any other enactment.”
33. Section 7, Sub Clause (a) of the Family Courts Act stipulates
the Family Court shall have and 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. Sub Clause (b) states that the Family Court shall be
deemed, for the purposes of exercising such jurisdiction under such law, to
be a district court or, as the case may be, such subordinate civil court for the
area to which the jurisdiction of the Family Court extends.
34. Explanations provided under Section 7 of the Act elaborates
the nature of disputes, which all are to be adjudicated before the Family
Court. Section 7(2) of the Act empowers 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 (2 of 1974). Thus, the applications, which all are filed,
seeking Maintenance for wife, children and parents alone shall be tried by
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exercising the powers conferred under Section 7(2)(a) of the Family Courts
Act, 1984. Thus, with reference to the jurisdiction as contemplated under the
Domestic Violence Act, the Family Courts/Civil Courts are not having
jurisdiction to deal with certain offences defined under the provisions of the
Domestic Violence Act.
CRIMINAL PROCEDURE CODE
35. Section 407 of the Code of Civil Procedure Code provides
Power of High Court to transfer cases and appeals. Accordingly, the High
Court is empowered to transfer the case from one Court to another Court as
the case may be as contemplated under the provisions of 407 of the Code of
Civil Procedure.
CIVIL PROCEDURE CODE
36. Under Section 24 of the Code of Civil Procedure, Civil
proceedings can be transferred from one Civil Court to another Civil Court.
37. However, Criminal proceedings cannot be transferred from a
Criminal Court of Law to a Civil Court/Family Court and all the more by
exercising the supervisory power under Article 227 of the Constitution of
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India.
ARTICLE 227 OF THE CONSTITUTION OF INDIA
38. In the case of Shalini Shyam Shetty and another vs.
Rajendra Shankar Patil, reported in (2010) 8 SCC 329, the Apex Court
elaborately considered the High Court's Power of Superintendence under
Article 227 of the Constitution has its origin as early as in Indian High
Courts Act of 1861. This concept of superintendence has been borrowed
from English Law. The power of superintendence owes its origin to the
supervisory jurisdiction of King's Bench in England. In the Presidency
towns of the then Calcutta, Bombay, Madras initially Supreme Court was
established under the Regulating Act of 1793. Those Courts were endowed
with the power of superintendence, similar to the powers of Kings Bench
under the English Law. Then the Indian High Courts in three Presidency
towns were endowed with similar jurisdiction of superintendence. Such
power was conferred on them under Section 15 of the Indian High Courts
Act, 1861.
39. Then in the Government of India Act, 1915 Section 107
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continued this power of superintendence with the High Court. Section 107
of the Government of India Act, 1915 was structured, providing Powers of
High Court with respect to subordinate Courts. In the Government of India
Act, 1935, the said Section 107 was continued with slight changes in
Section 224 of the Act. The history of this power has been elaborately traced
by a Division Bench of Calcutta High Court in the case of Jahnabi Prosad
Banerjee and another vs. Basudeb Paul & others, reported in AIR 1950
Calcutta 536 and that was followed in a Division Bench Judgment of
Allahabad High Court in the case of Sukhdeo Baiswar vs. Brij Bhushan
Misra and others in AIR 1951 Allahabad 667.
40. The history of Article 227 has also been traced by the Apex
Court in its Constitutional Bench judgment in the case of Waryam Singh
and another vs. Amarnath and another [AIR 1954 SC 215]
41. About the nature of the power of superintendence, Apex Court
relied on the Special Bench judgment delivered by Chief Justice Harries in
the case of Dalmia Jain Airways Limited vs. Sukumar Mukherjee (AIR
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1951 Calcutta 193).
42. In paragraph 14 page 217 of Waryam Singh (supra), Supreme
Court neatly formulated the ambit of High Court's power under Article 227
in the following words:
"This power of superintendence conferred by Article 227 is,
as pointed out by Harries C.J., in `Dalmia Jain Airways Ltd. v.
Sukumar Mukherjee', AIR 1951 Cal 193 (SB) (B), to be
exercised most sparingly and only in appropriate cases in
order to keep the Subordinate Courts within the bounds of their
authority and not for correcting mere errors."
43. Chief justice Harries in the Full Bench decision in Dalmia
(supra) stated the principles on which the High Court can exercise its power
under Article 227 very succinctly which, we would better, quote:
"6. Though this Court has a right to interfere with decisions
of Courts and tribunals under its power of superintendence, it
appears to me that that right must be exercised most sparingly
and only in appropriate cases. The matter was considered by a
Bench of this Court in Manmathanath v. Emperor, AIR 1933
Cal 132. In that case a Bench over which Sir George Rankin
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C. J. presided held that Section 107, Government of India Act
(which roughly corresponds to Article 227 of the Constitution),
does not vest the High Court with limitless power which may
be exercised at the Court's discretion to remove the hardship
of particular decisions. The power of superintendence it
confers is a power of a known and well-recognised character
and should be exercised on those judicial principles which
give it its character. In general words, the High Court's power
of superintendence is a power to keep subordinate Courts
within the bounds of their authority, to see that they do what
their duty requires and that they do it in a legal manner."
44. The power of the High Court under Article 227 to be plenary
and unfettered but at the same time, the High Court should be cautious in its
exercise. Thus, the power of superintendence is not to be exercised unless
there has been an (a) unwarranted assumption of jurisdiction, not vested in
Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable
refusal to exercise jurisdiction vested in Courts or Tribunals.
45. The jurisdiction under Article 227 on the other hand is not
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original nor is it appellate. This jurisdiction of superintendence under
Article 227 is for both administrative and judicial superintendence.
Therefore, the powers conferred under Articles 226 and 227 are separate and
distinct and operate in different fields. Jurisdiction under Article 227 is
exercised by the High Court for vindication of its position as the highest
judicial authority in the State. But in cases, where the High Court exercise
its jurisdiction under Article 227, such exercise is entirely discretionary
and no person can claiming it as as a matter of right.
46. In the case of Jasbir Singh vs. State of Punjab, reported in
2006 (8) SCC 294, the Hon'ble Supreme Court relied on the case of Mohd.
Yunus Vs. Mohd. Mustaqim AIR 1984 SC 38, Wherein the Apex Court
held as follows:
"The supervisory jurisdiction conferred on the High
Court's under Article 227 of the Constitution is limited "to
seeing that an inferior Court or Tribunal functions within the
limits of its authority," and not to correct an error apparent
on the face of the record, much less an error of law.. In
exercising its supervisory powers under Article 227, the High
Court does not act as an appellate court or Tribunal. It will
not review or reweigh the evidence upon which the inferior
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court or tribunal purports to be based or to correct any
errors of law in the decision."
........This Court also made almost similar
observations in State Vs. Navjot Sandhu (2003) 6 SCC 641.
“So, even while invoking the provisions of Article 227 of
the Constitution, it is provided that the High Court would
exercise such powers most sparingly and only in
appropriate cases in order to keep the subordinate courts
within the bounds of their authority. The power of
superintendence exercised over the subordinate courts and
tribunals does not imply that the High Court can intervene
in the judicial functions of the lower judiciary. The
independence of the subordinate courts in the discharge of
their judicial functions is of paramount importance, just as
the independence of the superior courts in the discharge of
their judicial functions. It is the members of the subordinate
judiciary who directly interact with the parties in the course
of proceedings of the case and therefore, it is no less
important that their independence should be protected
effectively to the satisfaction of the litigants.”
47. In a recent judgment in the case of Mohd.Inam Vs. Sanjay
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Kumar Singhal & Ors, the Apex Court in Civil Appeal No.2697 of 2020
dated 26.06.2020, considered the principles:
His Lordship B.R. GAVAI, J., while speaking for the
Bench, held as follows:
“32. It is a well settled principle of law, that in the guise
of exercising jurisdiction under Article 227 of the
Constitution of India, the High Court cannot convert itself
into a court of appeal. It is equally well settled, that the
supervisory jurisdiction extends to keeping the subordinate
tribunals within the limits of their authority and seeing
that they obey the law. It has been held, that though the
powers under Article 227 are wide, they must be exercised
sparingly and only to keep subordinate courts and
Tribunals within the bounds of their authority and not to
correct mere errors. Reliance in this respect can be placed
on a catena of judgments of this Court including the ones
in Satyanarayan Laxminarayan Hegde & Ors. vs.
Millikarjun Bhavanappa Tirumale10, Bathutmal Raichand
Oswal vs. Laxmibai R. 10 (1960) 1 SCR 890 Tarta &
Anr.11, M/s India Pipe Fitting Co. vs. Fakruddin M.
A.Baker & Anr.12, Ganpat Ladha v. Sashikant Vishnu
Shinde13, Mrs. Labhkuwar Bhagwani Shaha & Ors. vs.
Janardhan Mahadeo Kalan & Anr.14, Chandavarkar Sita
Ratna Rao vs. Ashalata S. Guram15, Venkatlal G. Pittie
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and another vs. Bright Bros (Pvt.) Ltd.16, State of
Maharashtra vs. Milind & Ors.17, State Through Special
Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and
others18, Ranjeet Singh vs. Ravi Prakash19, Shamshad
Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through
LRs. and others20, Celina Coelho Pereira (Ms.) and others
vs. Ulhas Mahabaleshwar Kholkar and others21.”
48. In yet another judgment in the case of Virudhunagar Hindu
Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society,
(2019) 9 SCC 538, the Hon'ble Supreme Court of India in unambiguous
terms held as follows:
“12. But courts should always bear in mind a distinction
between (i) cases where such alternative remedy is available
before civil courts in terms of the provisions of Code of Civil
Procedure, and (ii) cases where such alternative remedy is
available under special enactments and/or statutory rules and
the fora provided therein happen to be quasi-judicial
authorities and tribunals. In respect of cases falling under the
first category, which may involve suits and other proceedings
before civil courts, the availability of an appellate remedy in
terms of the provisions of CPC, may have to be construed as a
near total bar. Otherwise, there is a danger that someone may
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challenge in a revision under Article 227, even a decree passed
in a suit, on the same grounds on which Respondents 1 and 2
invoked the jurisdiction of the High Court. This is why, a 3-
member Bench of this Court, while overruling the decision
in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] , pointed out in Radhey
Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015)
5 SCC 423 : (2015) 3 SCC (Civ) 67] that “orders of civil court
stand on different footing from the orders of authorities or
tribunals or courts other than judicial/civil courts”.
13. Therefore wherever the proceedings are under the Code
of Civil Procedure and the forum is the civil court, the
availability of a remedy under the CPC, will deter the High
Court, not merely as a measure of self-imposed restriction, but
as a matter of discipline and prudence, from exercising its
power of superintendence under the Constitution. Hence, the
High Court ought not to have entertained the revision under
Article 227 especially in a case where a specific remedy of
appeal is provided under the Code of Civil Procedure itself.”
49. The above judgments of the Hon'ble Supreme Court of India
as well as the High Courts with reference to the principles settled for
exercise of supervisory power under Article 227 of the Constitution of
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India, it is consistent that the scope of the power is limited and to be
exercised sparingly and certainly, it cannot be exercised overriding the
provisions of the Special Enactments, wherein specific reliefs are provided
for redressal.
50. In this context, the Family Courts Act deals with Family
disputes and the powers and jurisdiction of the Family Courts are
unambiguously enumerated in the Statute itself. Thus, the proceedings
instituted under the Family Courts Act before the Family Courts are to be
regulated in accordance with the provisions as contemplated. Equally, an
application filed under Section 12 of the Domestic Violence Act is to be
regulated under the provisions of the 'DV Act' and the application registered
under Section 12 of the Domestic Violence Act is a criminal proceedings
and the entire provisions of the 'DV Act' unambiguously portrays that the
nature of proceedings are under criminal law. The procedures as
contemplated under the Criminal Procedure Code is to be followed for trial
of the cases under the 'DV Act'. Thus, there is no reason to form an opinion
that application filed under the 'DV Act' is a “Civil natured proceedings”.
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Offences against the women are falling both under criminal law and under
civil law. In a family dispute, when there is a possibility of institution of
both criminal proceedings and civil proceedings, the 'DV Act' contemplates
certain enabling provisions, permitting the aggrieved women to file civil
cases before the Civil Court and Family Courts under the respective
Statutes, in order to redress their grievances. However, the said facts are to
be informed before the Magistrate Court concerned. Section 26 in this
regard clarifies that aggrieved person may sought for such reliefs before the
Civil Courts and Family Courts by filing an appropriate application and by
following the procedures as contemplated under the Special enactments.
51. This being independent procedures as contemplated under
various Special enactments, the transfer of cases to be followed strictly in
consonance with the provisions of the Criminal Procedure Code and Civil
Procedure Code. When the scope of Article 227 does not permit the High
Court to entertain a transfer petition to transfer a criminal case to a Civil
Court or a civil case to a Criminal Courts, then the conversion of such
power under Article 227 for transfer of cases is certainly beyond the scope
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of the principles settled by the Hon'ble Supreme Court in various judgments
discussed elaborately in the aforementioned paragraphs.
52. Thus, the power of transfer conferred under the Code of
Criminal Procedure and the Code of Civil Procedure are expected to be
exercised by the High Courts and such power of transfer is not traceable
under Article 227 of the Constitution of India. Jurisdiction, which is not
traceable under Article 227 of the Constitution of India cannot be exercised,
which would result in excess exercise of power, which is not desirable.
53. It is relevant to look into Clause 13 of the Letters Patent,
wherein it is contemplated as follows:
“13. Extraordinary original civil jurisdiction: - And we do
further obtain that the High Court of Judicature at Madras,
shall have power to remove, and to try and determine, as a
Court of Extraordinary Original Jurisdiction, any suit being or
falling within the jurisdiction of any Court, whether within or
without the Presidency of Madras, subject to its
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superintendence, when the said High Court shall think proper to
do so, either on the agreement of the parties to that effect, or for
purposes of justice, the reasons for so doing being recorded on
the proceedings of the said High Court.
54. Even under the above provision, the suits alone are mentioned
and the criminal proceedings are not mentioned in the Letters Patent. Thus,
power of transfer of cases from Criminal Court of law to Civil Court or
Family Court is not traceable under Article 227 of the Constitution of India.
55. The Domestic Violence Act, Family Courts Act, Law for
Maintenance, Custody of Children etc., are enacted for the welfare and to
protect the interest of the women in our great Nation. The Special
enactments provide varieties of reliefs, enabling the aggrieved women to
redress their grievances by following the procedures as contemplated.
These Special Enactments are self-regulated and the jurisdiction of the
Courts constituted and the powers and the procedures are also enumerated.
While so, there is no reason whatsoever to deviate from the provisions of
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Tr.CMP SR No.15785 of 2021
such special enactments for the purpose of invoking Article 227 of the
Constitution of India. In other words, the proceedings under those special
enactments are to be regulated in accordance with the provisions of such
Acts and not otherwise. The scope of the power of superintendence of
Subordinate Courts by the High Court under Article 227 of the Constitution
are entirely distinct and different and the same cannot be exercised for the
purpose of transfer of cases from Criminal Court to the Family Court or the
Civil Court.
56. The special enactments are for the protection of women and
for their welfare. Thus, the multiple options provided under various special
enactments, facilitating the aggrieved women to redress their grievances are
to be dealt in accordance with the provisions of such enactments and speedy
disposal being the paramount importance, Courts are bound to ensure all
such cases, affecting the women must be disposed of at the earliest possible.
Protraction and prolongation of such litigations can never be encouraged by
the Courts.
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57. Conjoint reading of Section 44 of the Indian Penal Code and
Section 3 of the Domestic Violence Act portrays the nature of injuries for
initiation of proceedings under the Domestic Violence Act. Undoubtedly,
all such bodily injuries are serious in nature and affecting the fundamental
rights of women. Thus, initiation of proceedings under the Domestic
Violence Act with reference to the bodily injuries contemplated under the
provisions of the Act, are Criminal acts and therefore, the Domestic
Violence proceedings are criminal in nature and to be tried by the
competent Judicial Magistrate. The word “injury” is defined in Section 44
of the Indian Penal Code as the word “injury” denotes 'any harm
whatsoever illegally caused to any person, in body, mind, reputation or
property'.
58. Thus, the injuries enumerated under the provisions of the
Domestic Violence Act are bodily injuries, which all are offences as
contemplated under the Penal laws. Thus, all such offences / bodily injuries
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Tr.CMP SR No.15785 of 2021
as contemplated under the Domestic Violence Act are against the society at
large and therefore, the proceedings are criminal proceedings and the
competent criminal Court of Law is empowered to try those cases. Section
28 of the Domestic Violence Act states that the proceedings are to be
regulated under the Criminal Procedure Code. Thus, such criminal
proceedings instituted under the Domestic Violence Act cannot be
converted as Civil proceedings nor construed as proceedings of civil nature,
so as to transfer such criminal proceedings before the Civil Court or Family
Court by exercising the supervisory powers under Article 227 of the
Constitution of India.
59. In view of the discussions made elaborately in the
aforementioned paragraphs, this Court has no hesitation in concluding that
all proceedings initiated under the provisions of the Domestic Violence Act
are criminal proceedings and the competent criminal Court of Law is
empowered to try such proceedings. Thus, any transfer petition, if at all
filed to transfer a case registered under the Domestic Violence Act must be
entertained only under the Code of Criminal Procedure and certainly not by
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invoking the powers under Article 227 of the Constitution of India, to
transfer the said case to the Civil Court or Family Court.
60. In the event of transferring the Domestic Violence Act
proceedings to the Family Court or Civil Court, the said Courts cannot have
any jurisdiction to try and convict under the penal provisions as
contemplated under the Domestic Violence Act. Thus, aggrieved women,
who instituted the proceedings under Section 12 of the Domestic Violence
Act is deprived of getting appropriate reliefs and justice as contemplated
under the provisions of the Domestic Violence Act. Thus, such transfers
would defeat the very purpose and object of the penal provisions as
contemplated under the Domestic Violence Act and the punishments
indicated therein. Further, by transferring the Domestic Violence case from
Magistrate Court / Metropolitan Magistrate to the Family Court / Civil
Court, the High Court is not empowered to confer any additional powers or
jurisdiction to such Family Courts or Civil Courts, which is beyond the
scope of the provisions of the Family Courts Act and Domestic Violence
Act. Thus, the powers not conferred under the Special enactments cannot be
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exercised nor such an exercise may be done by invoking Article 227 of the
Constitution of India.
61. It is relevant to consider that the nature of proceedings,
procedures to be followed as well as the appreciation of evidences to be
considered. Criminal Courts and the Civil Courts are distinct and different.
Nature of reliefs to be granted by the Criminal Court of Law and Civil
Court of Law cannot be compared at all. Thus, the procedural differences
and the distinct nature of proceedings would cause injustice to the parties in
the event of transferring the Criminal proceedings to the Family Court or
Civil Court and therefore, such a transfer would cause prejudice to the
aggrieved persons to redress their grievances in the manner prescribed
under special enactments.
62. For all these reasons, the objections regarding the
maintainability of the transfer petition raised by the Registry, High Court of
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Madras, is perfectly in consonance with the provisions of law and the said
objections stands confirmed. Consequently, Tr. CMP SR No.15785 of 2021
is rejected at the SR Stage itself. However, there shall be no order as to
costs.
01-04-2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Ssm/Kak
To
1.The XVII Metropolitan Magistrate,
XVII Metropolitan Magistrate's Court,
Saidapet.
2.The V Additional Judge,
V Additional Family Court,
Chennai.
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Tr.CMP SR No.15785 of 2021
S.M.SUBRAMANIAM, J.
Ssm/Kak
Tr. CMP SR No.15785 of 2021
01-04-2021
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