Proceedings Under Domestic Violence Act Civil In Nature, Can Be Transferred To Family Court With Victim's Consent: Madras High Court

With respect to the first question, the reference was made in view of two conflicting views of Justice Anand Venkatesh and Justice SM Subramaniam. Justice Anand Venkatesh had held that the proceedings under Chapter IV of the Domestic Violence Act are civil in nature while Justice SM Subramaniam held that the proceedings are criminal proceedings. 

The division bench opined that matter was already settled through the decision of the Supreme Court in the case of Kunapareddy v. Kunapareddy Swarna Kumari where it was laid down clearly that the proceedings under Chapter IV of the Domestic Violence Act are civil in nature.

Justice Anand Venkatesh in Dr P. Pathmanathan and others v. Smt. V. Monica looked into the Statement of Objects of the Domestic Violence Act which spells out that the Act has been enacted mainly to address the absence of civil law remedies to the victims of an offence under Section 498-A IPC and also to provide a remedy under civil law to protect the women from being a victim of Domestic Violence and to prevent such occurrences.

The single judge had also relied upon the judgment of the Apex Court in S.A.L. Narayan Row and another v. Ishwarlal Bhagwandas which lays down the test to be applied to determine the nature of the proceedings. The single judge, applying the test laid down by the Apex Court and having regard to the nature of reliefs that could be granted under the Domestic Violence Act, had held that the proceedings are civil in nature. 

The division bench opined that the above two decisions of the Apex Court were not brought to the attention of Justice SM Subramaniam which led the single judge to hold that the proceedings under the Domestic Violence Act were criminal in nature. The reasoning given by the single judge to arrive at this conclusion was that the acts defined under Section 3 of the Domestic Violence Act are criminal in nature and were regulated under the CrPC. 

The division bench observed that the nature of relief provided under the Domestic Violence Act are prohibitory orders, the right to get compensation, right to monetary reliefs, right of residence such as the right from being dispossessed from a shared household etc. The determination of rights under Chapter IV of the Domestic Violence Act does not result in penal consequences so as to term it as criminal proceedings. Thus, proceedings under Chapter IV of the Domestic Violence Act are civil in nature. Penal consequences follow only when there is a breach of protection order.

The court further looked into the Statement of objects and reasons which clearly establishes the intention of the legislature to bring in the Act. The object behind introduction of the Act was to provide civil remedies to victims of Domestic violence. 

The Statement of Objects and Reasons specifically says that since there is no civil law to address the phenomenon of domestic violence, which constitutes an offence under Section 498-A IPC and there was no civil law to protect the women from domestic violence and to prevent the occurrence of domestic violence, the Act was sought to be enacted. The Act, therefore, in our view, creates a plethora of civil rights, breach of which provides various remedies which are civil in nature. It is true that most of the acts of domestic violence would also constitute offences punishable under various penal laws. The Domestic Violence Act was intended to provide additional remedies under civil law for such offences in the nature of prohibitory orders, right to get compensation, right from being dispossessed from shared household etc, which is alien to criminal law.

The court thus deemed it fit to agree with the decision of Justice Anand Venkatesh in holding that the proceedings under Chapter IV of the Domestic Violence are civil in nature. 

Whether Provisions of S. 468 CrPC Are Applicable For Proceedings Under DV Act?

With respect to the third question, the division bench observed that this position of law was also settled by the Apex Court in Kamatchi v. Lakshmi Narayanan where it was held that Section 468 of CrPC has no application in respect of proceedings initiated under Section 12 of the Domestic Violence Act.

The application under Section 12 of the Domestic Violence Act cannot be equated with the complaint, which is defined in Section 2(d) of the Criminal Procedure Code. However, for an offence under Section 31 of the Domestic Violence Act, the law relating to a limitation under Chapter XXXVI of CrPC would apply.

If S.468 Is Not Applicable, What Is The Period Of Limitation For Proceedings Under The DV Act?

WIth respect to the fourth question, the court observed that the DV Act does not prescribe any limitation for the proceedings. Most of the acts defined under Section 3 of the Act are continuing civil offences or continuing civil wrongs.

Section 22 of the Limitation Act makes it clear that in case of continuing torts, a fresh period of limitation begins to run at every moment of the time during which the tort continues. A similar provision can be found in Section 472 of CrPC. Therefore, the court opined that in such cases, the limitation would be inapplicable as long as the wrongs or offences continue.

Even in situations where the date of offence could be fixed, the court opined that it could not by way of a judicial exercise determine any particular period of limitation in the absence of provisions prescribing limitation under the Act.

As we have already elaborated, the Acts complained of in an application under Domestic Violence Act can be offences or civil wrongs or both. In such circumstances, we cannot by way of a judicial exercise determine any particular period of limitation in the absence of provisions prescribing limitation under the Act. It is also not possible for us to invoke Article 137 of the Limitation Act, even though, we find that the application is for civil remedies. 

At the same time, the court also opined that where the definite date of commission of the offence or the civil wrong can be fixed, or where the continuing offence had terminated on a particular date, the Magistrate has the liberty to consider the delay/laches while appreciating the facts. 

Whether Proceedings Under DV Act Pending Before Magistrate Court Can Be Transferred To Civil Court or Family Court?

With respect to the fifth issue, the division bench noted that there were conflicting opinions on whether the High Court could exercise its power under Article 227 of the constitution and transfer the Domestic Violence proceedings from the Magistrate Court to the Civil court.

Justice Anand Venkatesh had held that under Section 26 of the Act, the reliefs available under the Domestic Violence Act may also be sought before Family court or civil court. The division bench had noted various decisions of the Bombay High court where the courts had held that the Domestic Violence Act can be transferred to Family Court

The division bench disagreed with the decision of Justice SM Subramaniam wherein the single judge had held that Article 227 of Constitution of India cannot be invoked to transfer the proceedings under Domestic Violence Act to the Family Court or the Civil Court as the proceedings were criminal in nature. 

The court noted that the proceedings under the Domestic Violence Act being civil in nature, can also be tried before the Family Court. However it was also necessary to look into the object for which the Act was established and why the Parliament thought it fit to confer jurisdiction on the Magistrate and to follow the procedure under CrPC for granting reliefs which are civil in nature.

The Act is unique in as much as it provides for procedure, which are normally adopted in Criminal Cases, to adjudicate Civil Rights. The Provisions of the Act will make it clear that it was the intention of the Legislature to provide special procedure, probably to give teeth to the Civil Law remedies available to a victim. In this background, if we examine the procedure prescribed under the Domestic Violence Act, we find that the procedure is very different from the procedure that is adopted in civil cases.

Thus, the court held that the procedure prescribed under the Domestic Violence Act for enforcing civil rights is meant to be different from the Civil Procedure followed by the Civil Courts for the same relief. Under the Domestic Violence Act, the victim had an advantage when the application was decided by the Magistrate by adopting the criminal procedure. This advantage could not be taken away by a judicial order transferring the case to a civil Court.

The division bench also observed that unless the enactment conferred jurisdiction on the Family Court to exercise the powers of the Magistrate, the Family Courts could not exercise such power while deciding Domestic Violence proceedings. In the absence of such powers, if the proceedings were transferred from the Magistrate to the Family Court or any other Civil Court, the intention of the Legislature would be defeated.

The court also noted that Section 29 of the Act confers appellate power to Criminal court i.e, the Court of Sessions. If the proceedings were to be transferred to a Family Court, there would also be difficulty in fixing the forum for filing an appeal as the Family Court is equal in rank to that of the Court of Session.

The court thus concluded that the proceedings could not be transferred at the instance of the Respondent but could be transferred at the instance of the aggrieved.

We are of view that the proceedings under Domestic Violence Act cannot be transferred from the Magistrate Court to the Family Court or any other Civil Court, at the instance of the Respondent as the aggrieved person has a right which is conferred on her under Domestic Violence Act to have her claims adjudicated by the procedure prescribed under the Domestic Violence Act which is distinct and more effective.

If The Proceedings Under DV Act Are Civil in Nature, Can The High Court Exercise Its Power Under Section 482 CrPC?

With respect to the second issue which the division bench decided to deal with in the end, the court observed that in order to exercise the power under Section 482, the case has to be either pending before the Criminal Court or whence a power is exercised by the Court under the Code of Criminal Procedure.

The court held that though the Magistrate exercising power under the DV Act was not a criminal court, the Magistrate was exercising the power under the Cr.P.C. in view of the Section 28 (1) of the Domestic Violence Act. While bringing in the enactment, the legislature had indented to adjudicate and enforce civil law remedies by adopting the criminal procedure.

The Magistrate, therefore, was a "Criminal Court" acting under the code of Criminal Procedure while dealing with an application under Section 12 of the Domestic Violence Act even if reliefs granted by him is Civil in nature. Thus, the court concluded that Section 482 CrPC petition is maintainable in Domestic Violence Act proceedings