Law Web: Whether Family Court Has Jurisdiction To Entertain original or independent application Seeking Reliefs U/S 18-22 of Domestic Violence Act?

Paragraph 12 of Raju Narayana Swamy(Supra)

"12. S.26 of the PWDV Act has been inserted with an

objective that in addition to the provisions of S.12, the

aggrieved person is entitled to any relief available under S.18,

S.19, S.20, S.21 and S.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 PWDV Act. Sub-section (2) of S.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) obliges the aggrieved

person to disclose the nature of the reliefs, if any. obtained in

any proceeding other than a proceeding under the Act. The

intention of the Legislature was to enable the aggrieved

person to secure the same relief in other proceedings before

the Civil, Family or Criminal Court, whether it was instituted

prior to or after the commencement of the PWDV Act. This

would enure to the convenience of the aggrieved person as

well as the respondent and would also prevent multiplicity or

proceedings and conflict of orders. However an application

under S.12 seeking various reliefs under S.18 to 22 cannot be

filed as an original or independent application before the

Family Court as the Act expressly stipulates that a proceeding

under S.12 of the PWDV Act has to be filed before the

Magistrate competent to entertain the application. The Family

Court will have jurisdiction under the PWDV Act to grant

relief to the victim of domestic violence only if there is an

existing legal proceeding and the application under S.26 of

the Act seeking relief under S.18 to 22 is filed in that

proceeding. The same view has been taken in Neetu Singh

(supra) and Kumari Behara (supra). Accordingly. I hold that

the Family Court Emakulam is having no jurisdiction to

entertain MC No. 367 of 2015 on the files of the said Court.

The same is quashed. However, the respondent will be at

liberty to approach the learned Magistrate having jurisdiction

under S. 12 of the PWDV Act or alternatively, before the

competent Court under S.26(1) of the PWDV Act, where any

legal proceeding affecting the parties are pending. The

petition is disposed of as above."

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) NO. 539 OF 2022

GEORGE VARGHESE Vs TREESA SEBASTIAN

Coram: MR. JUSTICE AMIT RAWAL& MRS. JUSTICE C.S. SUDHA

Author: Amit Rawal, J.

Dated: 11th day of September, 2023.

Present petition is directed against order dated 27/07/2022 Ext.P5

whereby I.A.No.2009/2022 in O.P.No.220/2022 submitted by the

petitioner/husband for return of the claim under Order VII Rule 10 CPC

read with Section 10 of the Family Courts Act and Rule 50 of the Family

Courts (Kerala) Rules, 1989 has been dismissed.

2. Succinctly, the facts in brief are – the respondent/wife along

with the minor children preferred a petition under Order VII Rule 1 of the

Code of Civil Procedure; under Section 7(1) of Explanation (c), (d) and (f)

of the Family Courts Act and Sections 18, 19, 20 and 26 of the Protection of

Women from Domestic Violence Act, 2005 (hereinafter to referred to as

'2005 Act'). Out of the wedlock performed on 08/01/2011, three children,

i.e., respondent nos.2, 3 and 4 and petitioners in O.P.No.220/2022, were

born on 06/12/2011, 17/09/2013 and 23/12/2015. In the year 2022,

children were studying in 5th, 3rd and 1st standard, who were in permanent care and custody of the respondent/mother.

3. It was alleged that the petitioner/husband/respondent in O.P., at

the time of the marriage was working in a private firm and had after three

months of the marriage, lost job but in order to gain employment, had gone

to Gulf in the month of June, 2011. At the time of the marriage, the entire

gold ornaments of the wife were entrusted to the mother of the husband and

even at the time of the birth of the children, parents of the respondent/wife

gifted gold ornaments which are in the custody and care of husband's

parents. In the year 2012, the respondent/wife obtained a job as an

Overseer in the Building Section of PWD in Chengannur. Husband in the

month of March 2015, returned from abroad, but thereafter his behaviour

changed and indulged into sufferings and harassment. Various acts have

been attributed which we do not intend to venture or refer for, it would be a

futile exercise may prejudice the rights of the parties in a pending petition

as the question to be addressed by this Court is with regard to

maintainability of the petition filed invoking the provisions of Section 7 of

the Family Courts Act, can the provisions of Sections 18, 19, 20 and 21 of

the 2005 Act be clubbed or not.

4. On appearance, petitioner/husband appeared and submitted an

application under the provisions as referred to above for return of the

original petition on the ground that in case the respondent/wife is permitted

to claim the relief as provided under the provisions of Sections 18, 19, 20

and 21 of the Domestic Violence Act, 2005, the provisions of Section 12 of

the 2005 Act would not only be rendered redundant but the petition would

also become not maintainable. It would create a very incongruous position

for the reason that the order passed under the provisions of the Domestic

Violence Act is appealable before the trial court whereas any leave granted

under Section 7 of the Family Court Act is appealable before this Court.

5. It was further contended that the relief as sought for, cannot be

claimed in the first instance but can be added by way of amendment.

6. Family Court had no original and direct jurisdiction to entertain

the original petition for the reliefs under the 2005 Act as, in view of the

provisions of Section 28 of the 2005 Act, the trial under the various

provisions of the Sections shall be governed by the provisions of the Code

of Criminal Procedure whereas the Family Court cannot, in such

circumstances, decide a petition filed seeking comprehensive and combined

relief.

7. The term 'Magistrate' has been defined under Clause (i) of

Section 2 to include 'Judicial Magistrate of the First Class' or the

'Metropolitan Magistrate', exercising jurisdiction under the Code of

Criminal Procedure. The Magistrate is vested with the jurisdiction as per the

provisions of Section 12 of the Act to try and to decide the petition. If such

combined petitions are permitted, it would lead to a very anomalous

situation.

8. In support of the contentions, the judgment of Single Bench of

this Court in Raju Narayana Swamy v. Beena M.D, 2017 (1) KHC 607

and judgment of the Chhattisgarh High Court in Neethu Singh v. Sunil

Singh, 2008 KHC 7567 have been cited.

9. On the other hand, the learned counsel appearing on behalf of the

respondent/wife and the minor children countered the argument and raised

objection that the manner and mode in which the relief sought in the

application at the initial stage of the trial, would not be maintainable as it is

a mixed question of fact and law to be decided at a later point of time.

Petitioner/husband is at liberty to raise all pleas and press for hearing of the

issues which can be left open and decided by the trial court at the final

stage.

10. The language of Sections 12, 18, 19, 20 and 21 is entirely

different. As per the provisions of Section 12, Magistrate, on the basis of

the evidence, can determine compensation leaving right to party to claim

damages and other amount of compensation in an appropriate forum,

whereas under Sections 18, 19, 20 and 21 the destitute wife is entitled to

claim independent reliefs in terms of protection, residence, monetary and

custody orders. The aforementioned reliefs have not been enshrined under

Section 12 of the 2005 Act. Section 12 enables the parties to either claim a

relief or any other relief. The expression 'any other relief' is at the

discretion of the wife to be either claim in a petition under Section 12 or in

the manner and mode as has been done. The expression 'in addition to or

along with any other relief', would not prevent the aggrieved party to claim

relief in any other suit or legal proceedings; in other words, it cannot

impel/compel to raise such relief under Section 12 alone and urged this

court on dismissal of the petition.

11. This Court had appointed Sri.M.Asok Kini as Amicus Curiae to

render assistance to this Court. Amicus Curiae has submitted his report and

had referred to the provisions of Section 9 of the Code of Civil Procedure

and Sections 7(2) (a) and 7(1)(b) of the Family Courts Act. It was

contended that Sections 18 and 19 of the 2005 Act are nothing but an order

of injunction that can be granted by a Family Court, subject to the

stipulations in Section 7(d) of the Family Courts Act, pertaining to a suit or

proceeding for an order or injunction in circumstances arising out of a

marital relationship. Jurisdiction is generally understood as an authority to

decide and render a judgment by inquiring into the facts. Section 26 do not

denude the Family Court from exercising jurisdiction in respect of the relief

as sought under Sections 18, 19, 20 and 21 of the Act. Thus the petition

seeking relief under Section 18 – 22 along with the relief under Section 7

(2)(a) and (2)(b) of the Family Court Act would be maintainable.

12. We have heard the learned counsel for the parties and the learned

Amicus Curiae, it would be axiomatic for us to extract the reliefs sought in

the pending original petition. The same reads thus:

"i) Pass a judgment and decree allowing the petitioners to realize

Rs.3,25,000/- (Rupees Three Lakhs Twenty Five Thousand only) from

September 2021 to January, 2022 for 5 months @ Rs.65,000/- per

month as past maintenance to the petitioners 2 to 4, from the

respondent, personally and charging upon his movable and

immovable properties, with 12% interest from the date of O.P.

ii) Pass a judgment and decree granting partition of the petition

schedule property by meets and bounds, and allot ½ share by actual

division and give separate delivery of possession thereof to the 1st

petitioner.

iii) Pass a judgment and decree allowing the petitioner to realize Rs.

3,00,000/- (Rupees Three Lakhs only) with 12% interest per annum

from the respondent, personally and charging upon his movable and

immovable properties, from the date of marriage.

iv) Pass a judgment and decree allowing the petitioner to realize an

amount of Rs. 5,00,000/- (Rupees Five Lakhs only) from the

respondent charging upon his movable and immovable properties with

12% interest per annum, towards the marriage and betrothal expenses

of the 1st petitioner.

v) Direct the respondent to release the 1st petitioner from the

status of guarantor in his KSFE Chitty bid by him from the

Kazhakkootam Branch.

vi) Pass a judgment and decree of mandatory injunction restraining

the respondent from entering into her place of office PWD Road's

Section, Aluva and interfering with the peaceful employment of the 1st

petitioner.

vii) Pass an order in favour of the petitioners prohibiting the

respondent from committing any act of Domestic Violence against the

petitioner as per Section 18 of the Protection of Women from

Domestic Violence Act, 2005.

viii) Pass an order directing the 1st respondent to pay Rs.20,000/-

(Rupees Twenty Thousand only) per month towards the

rental/accommodation charges of the petitioners under Section 19 of

the Protection of Women from Domestic Violence Act, 2005.

ix) Pass an order directing the respondents to pay Rs. 1,00,00,000/-

(Rupees One Crore only) as compensation for the mental distress,

physical injury, emotional trauma etc. suffered by the 1st petitioner

due to the physical and mental torture, emotional abuse and other

acts of Domestic Violence. committed by the respondent, charging

upon his movable and immovable properties as per Section 22 of the

Protection of Women from Domestic Violence Act, 2005.

x) Direct the respondent to return her Godrej Steel Alamarah (wroth

Rs.30,000/-), Washing Machine (wroth Rs.30,000/-), Drier (worth Rs.

25,000/-), Teak Wooden Cot (worth Rs. 25,000/-), Teak Wooden Office

Table (worth Rs.20,000/-), Fridge (worth Rs. 20,000/-), Grinder

(worth Rs. 10,000/-), Mixi (worth Rs. 5,000/-), Gas Stove with

Cylinder (worth Rs.15,000/-) and Kitchen utensils (worth Rs. 50,000/-

to the 1st petitioner and in the alternate allow the petitioner to realize

an amount of Rs.2,30,000/- (Rupees Two Lakhs Thirty Thousand only)

from the respondent with 12% interest per annum personally and

charging upon the movable and immovable properties of the

respondent towards the value of the belongings of the 1st petitioner.

xi) Allow the petitioner to recover her entire costs from the

respondents and

xii) Pass such other reliefs, as this Hon'ble Court may deem fit and

necessary to meet the ends of justice in this case."

13. On perusal of the extracted reliefs, it would be evident that the

petition is not confined to primarily relief under Sections 18, 19, 20 and 21

of the Act but also for realisation of amount due from the husband as past

maintenance, partition of the schedule property and various other reliefs. It

would be also appropriate to extract the provisions of Section 7 of the

Family Courts Act, which reads as under-

“7.Jurisdiction - (1) Subject to the other 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.”

14. On perusal of the aforementioned provision, it is evident that

by virtue of the aforementioned Act, various reliefs including reliefs with

regard to marriage, property, injunction, guardianship as well as the validity

of the marriage, had been clubbed to avoid multifariousness of the

litigation. Prior to the aforementioned Act, for claiming partition or right in

the property, any aggrieved person was required to invoke the provisions of

Section 9 of the Code of Civil Procedure, whereas for the purpose of

dissolution of marriage, if parties are governed by Hindu Law under the

Hindu Marriage Act otherwise under Special Marriage Act or Divorce Act.

We would be failing in our duty in not extracting the provisions of Section

12 of the 2005 Act, which reads as follows -

" 12. Application to Magistrate – (1) 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 this Act:

Provided that before passing any order on such application, the

Magistrate shall take into consideration any domestic incident report

received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief

for issuance of an order for payment of compensation or damages

without prejudice to the right of such person to institute a suit for

compensation or damages for the injuries caused by the acts of

domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or

damages has been passed by any court in favour of the aggrieved

person, the amount, if any, paid or payable in pursuance of the order

made by the Magistrate under this Act shall be set off against the

amount payable under such decree and the decree shall,

notwithstanding anything contained in the Code of Civil Procedure,

1908 (5 of 1908), or any other law for the time being in force, be

executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form

and contain such particulars as may be prescribed or as nearly as

possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not

ordinarily be beyond three days from the date of receipt of the

application by the court.

(5) The Magistrate shall endeavour to dispose of every application

made under sub-section (1) within a period of sixty days from the date

of its first hearing.”

15. On a plain and simple reading of the provisions of the

aforementioned Act, the aggrieved party or a Protection Officer or any other

person on behalf of the aggrieved person is at liberty to seek either 'one' or

'more' reliefs under this Act and before any order could be passed, the

Magistrate is enjoined upon an obligation to consider the domestic incident

report received by the Protection Officer. Sub-section (2) of Section 12

empowers the Magistrate while entertaining the application either to include

a relief for issuance of an order for payment of compensation or damages

'without prejudice to the right of such person' to institute a suit for

compensation and damages for the injuries caused by the acts of domestic

violence committed by the respondent, with a proviso that in case any

decree for an amount as compensation or damages has been passed by any

court in favour of the aggrieved person, the amount if paid or payable in

pursuance of the order passed by the Magistrate shall be set off against the

amount payable; in other words, there cannot be any double benefit or

compensation to be awarded to the aggrieved persons.

16. What is discerned from the provisions of Section 12 is that an

aggrieved person is free to elect any of the reliefs. The legislature in the

wisdom has framed the Act by taking into consideration the doctrine of

election. The parties are free to elect either a remedy under Section 12 or

reserve the right to claim other reliefs as provided under Sections 18, 19, 20

and 21 in the manner and mode as has been done. The plain and simple

reading of the provisions of Section 26 left the question clear and

unambiguous that a party seeking a claim under any provisions of the civil

or criminal court much less a family court can always claim relief in

addition as provided under Sections 18, 19, 20, 21 and 22 of the Act.

17. There is no quarrel to the ratio decidendi culled out in the

following judgments which reveal that Section 26 of the Act do not denude

family court to deal with a petition in a claim under Sections 18, 19, 20, 21

and 22 of the Act. For the sake of brevity, paragraphs 6 and 7 of the

Division Bench decision of the Orissa High Court in Brundaben Patra and

Another v. Rajalaxmi Patra, 2011 (4) KHC 740 and paragraph 12 of the

Single Bench decision of this Court in Raju Narayana Swamy v. Beena

M.D., 2017(1) KHC 607.

Paragraphs 6 and 7 of Brundaben Patra (Supra)

“ 6. Thus, a plain reading of the provisions of the Act

reveals that the Indian Parliament in its wisdom thought that

the existing law governing the field was inadequate to protect

women from domestic violence and, therefore, enacted this

particular piece of legislation for more effective protection of

rights of women which is granted under the Constitution, who

are victims of any kind abuse occurring within the family and

for matters connected therewith or incidental thereto. This is a

piece of progressive legislation and the provisions of the Act

has to be interpreted accordingly. From the different

provisions discussed above, it is seen that the Indian

Parliament has left no scope for refusing any relief on

technical grounds. However, since the question of lack of

jurisdiction is raised in this case, we come to the conclusion

that the learned Judge, Family Court has jurisdiction under

this Act to grant relief to the victim of domestic violence only

if there is an existing legal proceeding before it. In other

words, the original and independent proceeding under the

Domestic Violence Act cannot be initiated in the Family

Court. An independent and original proceeding under S. 12 of

the Act for various reliefs as described in the preceding

paragraph is maintainable before the Judicial Magistrate,

First Class and thus, the application filed before the learned

Judge, Family Court is not maintainable.”

7. However, keeping in view the very objective of the Act

itself and the fact that the Court should not take recourse to

hide behind technicalities and refuse substantial relief to the

parties and its order should be tampered with the concept of

justice, this Court comes to the conclusion that instead of

quashing the entire proceedings, it shall be proper to transfer

the proceedings pending before the learned Judge, Family

Court to the Court of JMFC, Bhubaneswar with a direction to

try and dispose of the application filed by the opposite party

as early as possible, preferably within a period of one month

from the date of appearance of the parties before it. Since the

interim order has been passed, this Court is of the opinion

that such order is just and proper though without jurisdiction.

The Civil Proceeding No.480 of 2011 be transferred from the

Court of Judge, Family Court to the Court of JMFC,

Bhubaneswar who is trying UTP cases. The parties are

directed to appear before the said Court on 20/05/2011. The

learned Judge, Family Court shall transmit the record so as to

reach the Court of JMFC at least three days prior to the

appearance of parties on the aforesaid date. The Magistrate

may change the nomenclature and register it as a criminal

case.

The writ petition is accordingly disposed of. This judgment be

communicated to the lower Court immediately.”