Civil Appeal May Be Filed Against Family Court's Order Under Domestic Violence Act: Bombay High Court

The observation was made with respect to a case whereby two separate proceedings filed by a wife, one for divorce under the Special Marriage Act and another against restrain order under the Domestic Violence, were clubbed, and heard and decided by a Family Court.

A Division Bench comprising of Justices RD Dhanuka and VG Bisht held,

"The moment both the proceedings came to be clubbed by judicial order of this Court and directed to be tried together, the jurisdiction of the Family Court became abundantly clear over the proceedings under the Domestic Violence Act. Resultantly, the order passed in the proceedings became the orders passed by the learned judge of the Family Court for all purposes and therefore, it would be a fallacy and myopic to term part of the order pertaining to the reliefs under Domestic Violence Act as an order amenable to revisional jurisdiction. This would amount to nothing but a self serving interpretation."

Background

The Respondent-wife herein had filed a petition before the Family Court praying for divorce on the ground of cruelty and adultery. Subsequently, she moved a Criminal Misc. Application under provisions of the Domestic Violence Act before a Judicial Magistrate, First Class for various reliefs.

Both the matters came to be clubbed by an order of the Bombay High Court, with directions to be heard by the Family Court.

The Family Court allowed both the applications moved by the Respondent-wife, following which the instant proceedings were initiated by the Appellant-husband before the High Court, in the form of an appeal.

Issue

The issue before the Court was whether Appeal under Section 19(1) of the Family Courts Act, 1984 is maintainable also in respect of the reliefs granted by the Family Court claimed under the provisions of Domestic Violence Act along with the reliefs granted in the divorce proceedings under the provisions of Special Marriage Act by a common judgment.

Arguments

The Respondent wife had contended that to the extent of challenge to the order of maintenance passed by the Family Court under the DV Act, a Criminal Revision Application is maintainable and not this Family Court Appeal.

She inter alia relied upon Section 19(5) of the Family Courts Act and would submitted that except the orders which are appealable under Section 19 specifically, no appeal or revision can be filed to any Court from any order or decree of a Family Court

She also relied on Section 29 of the DV Act and submitted that any order passed under the Section 12 of the DV Act is appealable before the Sessions Court.

"Merely, because both the proceedings filed by the respondent i.e. one before the Family Court under the Special Marriage Act and another before the learned Judicial Magistrate, First Class under the provisions of Domestic Violence Act were clubbed together by this Court in the proceedings filed under Section 24 of the Code of Civil Procedure, 1908, the order passed by the Family Court in various separate paragraphs of the impugned order cannot be construed an order appealable under Section 19(1) of the Family Courts Act, 1984," her counsel argued.

The Appellant-husband on the other hand stated that the remedy of appeal provided under Section 29 of the Domestic Violence Act could have been availed by filing an appeal to the Court of Sessions only if such order would have been heard by the Judicial Magistrate, First Class and not in case of an order passed by the Family Court.

He stated that since the proceedings were heard by a Family Court, Section 29 of the DV Act thus would not be attracted in this case.

Findings

The High Court has held that the rights created and remedies provided for in the Domestic Violence Act are basically of civil nature. Hence, once the proceedings seeking reliefs available under Sections 18 to 22 of the DV Act are decided by a Civil Court, it cannot be said that the proceedings are of criminal nature and ought to be heard by a Revisional Criminal Court only.

The Court heavily relied on the principles laid down by the Full bench of the Bombay High Court in the case of Nandkishor Pralhad Vyawahare v. Mangala, (2018) 3 Mah LJ 913.

The findings of the High Court are summarized below:

1. As per Section 26 of the DV Act, any relief available under the said Act can also be sought in any other legal proceeding before a Civil Court, Family Court or a Criminal Court as long as such proceeding affects the aggrieved person and the respondents.

"It is not the Judicial Magistrate, First Class or the Metropolitan Magistrate, as the case may be, who alone is competent to decide an application under Section 12(1). As even a Civil Court or a Family Court or any other Criminal Court conducting any legal proceeding which has the power under Section 26 to do so."

2. It is not the nature of the proceeding and it is the nature of the right violated and the relief provided for violation of the right is what ultimately decides the nature of a proceeding.

Section 28 and 29 of the DV Act essentially create a plethora of civil rights breach of which results in basically providing civil remedies which are alien to criminal law.

These rights and remedies are such as, right against domestic violence to be realized through a prohibitory order (Section 18), right to reside in a shared household and right from being dispossessed or disturbed in enjoying the possession of a shared household to be realized through a suitable restraining order (Section 19), right to get monetary reliefs and compensation (Sections 20 and 22), right to seek temporary custody of the child (Section 21) and right to seek interim and ex-parte orders in certain cases (Section 23).

"These rights and reliefs are not found in classical criminal jurisdiction, which is about punishing the rule breaker by sentencing him to death or imprisonment or forfeiture of property and in some cases making him pay the compensation to the victim of crime."

3. The notice that is issued first on an application under Section 12(1) of the DV Act is civil in nature as can be seen from the provision of Section 13 and neither any cognizance is taken as under Section 190 of the Criminal Procedure Code nor any process is issued as under Section 204 of Criminal Procedure Code in respect of such an application.

4. The rights created and remedies provided for the breaches thereof under DV Act have been viewed by the Parliament as basically of civil nature and, therefore, by specific provisions, authority has been conferred even upon the Civil Courts, in addition to Criminal Courts, under Section 26 of the Domestic Violence Act, to deal with an application filed for seeking various remedies provided under Section 18 to 22 of the Domestic Violence Act.

"It is held that making of Criminal and Civil Courts simultaneously as appropriate to obtain the reliefs provided under the Domestic Violence Act is a certain pointer to the fact that the character of the proceeding is not dependent upon the nature of the tribunal which is invested with the authority to grant relief, but upon the nature of the right violated and the kind of relief that may be had."

5. The applicability of provisions of the Criminal Procedure Code and providing of criminal consequences for breaches are only indicative of the intention of the Parliament to make various civil remedies available under the Domestic Violence Act more effective and meaningful.

However, they have no bearing upon and do not determine the basic character of the proceeding initiated under Section 12(1) of the Domestic Violence Act which is by and large of the civil nature.

6. in the instant case, the Appellant could not point out any relief granted by the Family Court attracting any punishment for any alleged offence committed by the appellant, which could be tried by any Criminal Court.

Case Title: Dr. Sandip Mrinmoy Chakrabarty v. Reshita Sandip Chakrabarty

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