Friday, 23 April 2021

Whether family court can adjudicate a domestic violence dispute if the magistrate has decided monetary claims regarding said dispute?

We mentioned earlier that there must be

predicate act of domestic violence to enable the

Magistrate to give any relief as referable under

Section 20. The doctrine of res judicata bars the

court from adjudicating the same issue which has

been conclusively decided by the competent forum or

court between the same parties. Inquiry being

treated as an ancillary or incidental procedure of

the main issue of domestic violence, any outcome of

such proceedings itself is not decisive in the

subsequent proceedings. The substantial issue in a

proceedings under Section 20 must be domestic

violence. The relief of monetary claims under

Section 20 is an ancillary relief. Therefore, the

outcome in ancillary proceedings, that too in the

proceedings in the nature of inquiry itself 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 (for short, the

Evidence Act). The Apex Court in Satish Chander

Ahuja v. Sheha Ahuja [AIR (2020) SC 5397] opined

that such order under the Act is a relevant

evidence as contemplated under Sections 40 to 43 of

the Evidence Act. We, therefore, find no merit in

the appeal. {Para 21}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR.JUSTICE A.MUHAMED MUSTAQUE

&

 DR.JUSTICE KAUSER EDAPPAGATH


 MAHINKUTTY ABDUL KARIM Vs ANSHIDA, D/O.IBRAHIM, MALIYAMVEEDAN HOUSE,


Mat.Appeal.No.739/2014 2

Dated this the 9th day of April 2021

Author: A.Muhamed Mustaque, J.

This appeal arises from the order of the

Family Court, Muvattupuzha, in a pending matter

regarding the maintainability of the original

petition.

2. The respondent herein, who is the wife of

the 1st appellant, filed the original petition for

recovery of money and gold ornaments. The

appellants raised a preliminary objection as to the

maintainability of the petition on the ground that

very same relief sought by the respondent before

the Judicial First Class Magistrate Court,

Perumbavoor in a proceeding initiated under the

Protection of Women from Domestic Violence Act,

2005 (for short, the 'Act') was rejected, and,

hence, the second petition for the same relief

before the Family Court is barred by the principles

of res judicata. The Family Court overruled the

objection as per the impugned order holding that

the proceedings under the Act are of a summary

nature and the second petition before it, is not

barred by the principles of res judicata.

3. What is the legal effect of the order

passed under Section 20 of the Act granting

monetary reliefs is the sole issue to be considered

in this matter.

4. Section 20 of the Act refers to monetary

reliefs. The Magistrate is conferred with the

power to direct the respondent to pay monetary

reliefs to the aggrieved person for the losses

suffered as a result of domestic violence,

including restoration of the property removed from

the control of the aggrieved person. Section 26 of

the Act enables to claim such reliefs as claimed

under Section 20 before the Civil Court, Family

Court or Criminal Court.

5. The learned counsel for the appellants

Sri.Mathew John, placing reliance on the judgment

in Pandurang Ramchandra Mandlik and another v.

Smt.Shantabai Ramchandra Ghatge and others, [AIR

1989 SC 2240] and the judgment of the Madras High

Court in Crl.O.P.No.28458/2019 and connected cases

submitted that the proceedings under the Act are of

a civil nature, that the order passed in

proceedings initiated under the Act has to be

treated as an outcome of civil proceedings and the

conclusive nature of the proceedings determining

the rights and obligations of the parties cannot be

reopened by filing another petition for the same

relief before the Family Court.

6. On the other hand, learned counsel Sri.Vipin

Narayan appearing for the respondent, placing

reliance on Satish Chander Ahuja v. Sneha Ahuja

[AIR 2020 SC 5397], Govindan v. Subaida Beevi

[1997 (1) KLT 910], P.G.Eshwarappa v. M.Rudrappa

and Others [(1996) 6 SCC 96], argued that the order

of the Magistrate can only be treated as an order

of a criminal Court in a criminal proceedings that

the order passed in a proceedings under the Act

could, at best, be taken as a relevant piece of

Mat.Appeal.No.739/2014 5

evidence before the Family Court and the Family

Court is not bound by the orders under the Act.

7. The Act was enacted by the Parliament based

on the larger interest of human rights concomitant

with various declarations made in international

conventions. The very objective of the Act is to

protect the women as against the violence that

occurs within the family and for matters connected

therewith. The Act, therefore, conceives a scheme

of protective measures with an object to protect

women. The scheme of the Act on a close scrutiny,

would reflect the intention of the parliament, that

it was not enacted to create another platform for

adjudication of disputes arising out of any

matrimonial dispute, but to take measures to

protect the women. The proceedings are therefore,

understood as supplemental provisions besides the

right to adjudicate any dispute arising out of a

matrimonial relationship as conferred under law

before the competent civil court or Family Court or

criminal court. The protective measures as required

to be passed may include residential orders,

monetary reliefs, custody orders etc. The objective

criteria in such proceedings is to protect the

women and not to adjudicate upon the dispute. The

proceedings are ordained for the welfare and well

being of the women. When the welfare statute is

made with the single focus of protection of women,

such Act has to be interpreted as remedial

provisions to benefit the women alone. The

proceedings, therefore, cannot be meant to

understand, as an extension of platform for a

dispute resolution of anything connected to or

related with the objective to be secured. That is

the reason the legislature consciously preserved

the right of the aggrieved to seek such relief

referable under the Act (Section 26 of the Act)

before the appropriate forum.

8. The issue involved in this case with regard

to the application of the principles of res

judicata will have to be addressed in the light of

the scheme of legislation of the Act. The

principles of res judicata as embodied in Section

11 of the Civil Procedure Code is having a

universal application in the larger public

interest. No man should be vexed twice for the same

cause more than once. This Rule evolved as a public

policy to put an end to the litigation.

9. As stated in the statement of objects and

reasons in the Act, the Act intends to accord

protection to women who are victims of domestic

violence. Section 3 of the Act defines domestic

violence in the nature of harm or injury whether

physical or mental to the aggrieved person. The

“aggrieved person” is defined under Section 2(a).

Women only can be an aggrieved person under Section

2(a). The aggrieved person must be subjected to any

domestic violence. The duties of Protection

Officers and Service Providers are enumerated in

Chapter III itself. These provisions would show

that the Protection Officers and Service Providers

will have to provide legal aid, medical, financial

or any other assistance to the aggrieved person.

Chapter IV, Section 12 of the Act refers to filing

an application before the Magistrate for any

reliefs referred to under the Act. These reliefs

include residence orders, monetary reliefs, custody

orders and compensation orders. These reliefs

cannot be claimed by women unless women establish

the occurrence of domestic violence.

10. The statutory scheme confers the power on

the Magistrates to grant such relief if the women

is able to establish domestic violence. The

predicate acts of domestic violence is sine qua non

for granting any reliefs as referable under the

Act. No relief as referable under the Act is

maintainable unless the predicate act of domestic

violence is established.

11. To understand the nature of the proceedings

under an enactment, the court has to cull out from

the provisions of the text of the Act to find out

whether it is intended to adjudicate any dispute

between the parties or not. If there are no

provisions for adjudication of rights and

obligations of the parties, the proceedings cannot

be called as adjudicatory proceedings.

'Adjudication' is defined in the Black's Law

Dictionary as follows:

“The legal process of resolving a dispute;

process of judicially deciding a case.”

The adjudicative process is always governed by the

Formal Rules of Evidence by allowing both parties

to adduce evidence.

12. If no right of the parties is decided

conclusively in a proceedings, any outcome of such

proceedings cannot be treated as an outcome of

adjudication. The Act being a beneficial

legislation to protect women, it does not

contemplate any other form of adjudication of the

rights and obligations of the parties. Section 28

of the Act allows the Magistrate to follow the

provisions under the Code of Criminal Procedure in

respect of the proceedings under Sections 12, 18,

19, 20, 21, 22, and 23 of the Act. The Magistrate

has necessary power to hold an inquiry other than

trial under the Criminal Procedure Code. Section

2(g) of the Criminal Procedure Code defines

“inquiry” as, every inquiry, other than a trial,

conducted under this Code by a Magistrate or Court.

Mat.Appeal.No.739/2014 10

Thus, in the absence of any provision to penalise

the respondent, such proceedings under the Act, can

only be treated as proceedings of inquiry. The

Black's Law Dictionary defines 'inquiry' as

follows:

“a request for information, either

procedural or substantive.”

The procedure thus contemplated under the Act is in

the nature of inquiry akin to the inquisitorial

procedure. The Magistrate, while exercising the

powers under the Act, is actually not deciding any

dispute in like manner as involved in adversarial

system, but only taking measures to protect the

aggrieved person/women. The monetary reliefs

mentioned under Section 20 is more in the nature of

restoration of what have been deprived to the

women. That means, as a result of domestic

violence, if women is deprived, the Magistrate is

competent to grant such reliefs as referable under

Section 20. The inquiry in such proceedings is

limited to find whether women consequent upon

domestic violence has suffered to raise claim for

restoration by way of such reliefs or not.

Mat.Appeal.No.739/2014 11

13. The nature of the proceedings for the

reliefs referable under the Act is a point of

serious debate in this country.

14. In the light of the arguments raised at the

Bar, we need to decide whether the proceedings are

in the nature of criminal proceedings or not.

15. The Apex Court succinctly laid down the

difference between the civil and criminal

proceedings in Kunapareddy Alias Nookala Shanka

Balaji v. Kunapareddy Swarna Kumari and

Another[(2016) 11 SCC 774] and Ram Kishan Fauji v.

State of Haryana and Others [(2017) 5 SCC 533]. The

Apex Court judgments would clearly show that merely

because the jurisdiction is exercised by the

Magistrate and provisions of the Criminal Procedure

Code are followed, it does not change the character

of the proceedings as criminal proceedings. The

learned single Judge of the Madras High Court in a

batch of cases in Crl.O.P.No.28458/2019 and

connected cases, after surveying case laws came to

Mat.Appeal.No.739/2014 12

the definite conclusion that the proceedings under

the Act are in the nature of civil proceedings and

Section 482 of the Criminal Procedure Code cannot

be invoked to quash a complaint under Section 12 of

the Act. A learned single Judge of this Court in

Vijayalekshmi Amma v. Bindu [2010 (1) KLT 79], took

the view that the proceedings under the Act are in

the nature of criminal proceedings.

16. The Apex Court in Regional Provident Fund

Commissioner v. The Hooghly Mills Company Ltd. and

Others [MANU/SC/0036/2012]succinctly differentiated

the remedial statute and penal statute in paragraph

24 as follows:

“The normal canon of interpretation is that

a remedial statute receives liberal construction

whereas a penal statute calls for strict

construction. In the cases of remedial statutes,

if there is any doubt, the same is resolved in

favour of the class of persons for whose benefit

the statute is enacted, but in cases of penal

statutes if there is any doubt the same is

normally resolved in favour of the alleged

offender.”

17. The Apex Court in Allahabad Bank and Another

Mat.Appeal.No.739/2014 13

v. All India Allahabad Bank Retired Employees

Association [(2010) 2 SCC 44] in paragraph-16,

observed as follows:

“We shall proceed to examine the point urged by

the learned counsel for the appellant. Remedial

statutes, in contradistinction to penal statutes, are

known as welfare, beneficent or social justice

oriented legislation. Such welfare statutes always

receive a liberal construction. They are required to

be so construed so as to secure the relief

contemplated by the statute. It is well settled and

needs no restatement at our hands that labour and

welfare legislation have to be broadly and liberally

construed having due regard to the directive

principles of State policy. The Act with which we

are concerned for the present is undoubtedly one such

welfare oriented legislation meant to confer certain

benefits upon the employees working in various

establishments in the country.”

18. The Principles of Statutory Interpretation

(Ninth Edition, 2004) by Justice C.P.Singh, refers

to distinction between remedial and penal statutes

as follows:

“Every modern legislation is actuated with some

policy and speaking broadly as some beneficial object

behind it. But then there are legislation which are

directed to cure some immediate mischief and bring

into effect some type of social reform by

ameliorating condition of certain class of persons

who according to present-day notions may not have

been fairly treated in the past. Such legislation

prohibits certain acts by declaring them invalid and

provide for redress or compensation to the persons

aggrieved. If a statute of this nature does not make

the offender liable to any penalty in favour of the

state, the legislation will be classified as

remedial. Remedial statutes are also known as

welfare, beneficient or social justice oriented

legislations. Penal statues, on the other hand, are

those which provide for penalties for disobedience of

the law and are directed against the offender in

relation to the State by making him liable to

imprisonment, fine, forfeiture or other penalty. If

the statute enforces obedience to the command of law

by punishing the offender and not by merely

redressing an individual who may have suffered, it

will be classified as penal.”

19. The provisions of the Act in relation to

monetary relief under Section 20 as such do not

intend to penalise the respondent in such

proceedings. In such circumstances, the statutory

provisions will have to be treated as remedial to

protect the women.

20. We have already adverted that the Act does

not contemplate adjudication. The proceedings

therefore are only to be treated as an inquiry. The

question, therefore, arises how far the outcome in

an inquiry in a remedial procedure would have an

impact in adjudication between the same parties

before the competent court or forum?

21. We mentioned earlier that there must be

predicate act of domestic violence to enable the

Magistrate to give any relief as referable under

Section 20. The doctrine of res judicata bars the

court from adjudicating the same issue which has

been conclusively decided by the competent forum or

court between the same parties. Inquiry being

treated as an ancillary or incidental procedure of

the main issue of domestic violence, any outcome of

such proceedings itself is not decisive in the

subsequent proceedings. The substantial issue in a

proceedings under Section 20 must be domestic

violence. The relief of monetary claims under

Section 20 is an ancillary relief. Therefore, the

outcome in ancillary proceedings, that too in the

proceedings in the nature of inquiry itself 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 (for short, the

Evidence Act). The Apex Court in Satish Chander

Ahuja v. Sheha Ahuja [AIR (2020) SC 5397] opined

that such order under the Act is a relevant

evidence as contemplated under Sections 40 to 43 of

the Evidence Act. We, therefore, find no merit in

the appeal. The appeal fails. Accordingly, it is

dismissed. No costs.


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