Proceedings Initiated Under Domestic Violence Act Before Magistrate Cannot Be Transferred To Family Court: Kerala High Court

The Kerala High Court on Wednesday laid down that proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) before a Judicial Magistrate of the First Class (JFCM) cannot be transferred to a Family Court. 

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar reasoned that the Legislature had been fully conscious in enacting the D.V. Act much after the Family Courts Act, 1984, and thereby confining the jurisdiction to entertain an application under Section 12 of the D.V. Act ('Application to Magistrates') to the Judicial Magistrates. 

"As long as the Family Court or, for that matter, other civil courts cannot have original jurisdiction to entertain an application under Section 12 of the D.V. Act, no application under Section 12 pending before a Magistrate can be transferred to a Family Court," the Bench observed. 

Here, it is significant to note that another division bench of the High Court is already seized with a matter for determining whether Family Court has jurisdiction to entertain a petition seeking reliefs under the DV Act. The Amicus in the matter has submitted a report favouring the proposition.

In this case, the Court added that inasmuch as women alone can claim reliefs provided under Sections 12-18 of the D.V. Act by filing an application under Section 12 or by applying in a pending proceedings by invoking Section 26 of the, if the respondents in the application to get the application transferred to a Family Court or other civil court, it would amount to denial of the special right conferred upon the aggrieved women. 

"Often that will result in facilitating the respondent to pin down the aggrieved woman to a forum which may be totally inconvenient to her," the Court noted. 

The Court further went on to add that even a female in a live-in-relationship may file an application under Section 12 of the D.V.Act, and if it were to be held that such an application is liable to be transferred to a Family Court, the same would result in an indiscriminate classification inasmuch as a Family Court is empowered to entertain disputes between the parties to a marriage only.

The appellant in this case wanted to transfer a case pending before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam to the Family Court at Ernakulam. 

The Court noted that while a proceeding initiated under Section 12 of the D.V. Act, 2005 was of civil nature, in light of Section 28 of the Act ('Procedure'), such an application is governed by the provisions of the Code of Criminal Procedure, 1973. On a reading of the provisions of the statute, the Court was of the view that the proceedings in an application filed under Section 12 of the D.V. Act has to be regulated as per the provisions in the Cr.P.C., subject to the proceedings in an application filed under Section 12 of the D.V. Act has to be regulated as per the provisions in the case.

The Court noted that when the transfer is sought from the court of a Magistrate to a Family Court, neither Section 407 Cr.P.C. which permits transfer from one Magistrate Court to another, nor Section 24 C.P.C. which permits transfer from one civil court to another can be invoked. However, as regards the maintainability of the Transfer Appeal, the Court held the same to be maintainable, on noting that the High Court could invoke its jurisdiction under Article 227 if a transfer is required from a civil court to a criminal court and vice versa in the interest of justice, and if such a transfer is not prohibited under the provisions of law. 

It was argued by the counsel for the appellant that proceedings under the D.V. Act are civil in nature and therefore the fact that a judicial Magistrate is constituted as a forum under the D.V. Act does not stand in the way of transferring a pending case under the D.V. Act to the Family Court. 

The Court in this case was faced with the question as to whether the proceedings under the D.V. Act could be transferred to the Family Court for the reason that the proceedings under the Act are of civil nature, although the forum to claim the same is a criminal court. 

The Court took note that the preamble of the Act itself lays down that the statute had been enacted in order to provide more effective protection of the rights of women guaranteed under the Constitution of India who are victims of violence of any kind occurring within the family. 

For these reasons, as mentioned hereinbefore, the Court observed that since women alone are given the right to file an application under Section 12 of the Act in order to claim the reliefs thereunder, allowing a respondent in an application to get the same transferred to a Family Court would amount to denial of the special right conferred upon the aggrieved women. 

The Court added that what was laid down by another Bench of the High Court in Rajeev Thomas & Ors. v. Sheeja Antony & Ors. (2018) was that if a relief under sections 18 to 22 is granted by another court, the same shall be reported to the jurisdictional Magistrate, which indicates that the jurisdictions conferred on different courts are not concurrent.

"Accordingly, we hold that a proceedings initiated under the D.V. Act before a Judicial Magistrate of the First Class cannot be transferred to a Family Court," the Court held while dismissing the appeal. 

The appellant was represented by Advocates Prabha R. Menon and Arun Samuel. Advocates Saiby Jose Kidangoor, Benny Antony Parel, Anoop Sebastian, Pramitha Augustine, Irine Mathew, Adithya Kiran V.E., Anjali Nair, Naail Fathima Abdulla A., Swathy Sudhir, and Tanoosha Paul. 

Also Read: Can Proceedings Under Domestic Violence Act Be Transferred To Family Court? Bombay HC Directs Registry To Place Matter Before Appropriate Bench

Case Title: Vineet Ganesh v. Priyanka Vasan 

Citation: 2023 LiveLaw (Ker) 395

Case Number: TR.APPEAL (C) NO. 1 OF 2023

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