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

The Bombay High Court has directed its Registry to place before an appropriate bench a clutch of petitions to decide a common legal issue – whether family courts are competent to hear domestic violence cases.

“A common question involved is whether the Family Court established under the Family Courts Act, 1984 is competent to conduct the proceedings and give the relief under the Protection of Women from Domestic Violence Act, 2005 and whether the proceedings under the DV Act can be transferred to the Family Court,” the court observed.

Justice Sarang Kotwal said this question has arisen in a number of pleas pending before his bench and there are conflicting decisions of various single judges on the issue.

In fact, a co-ordinate bench has heard one such miscellaneous application and posted the matter for orders, the court noted.

“To avoid a possibility of conflicting orders, it would be appropriate if all these matters concerning the common issue are decided by one Bench and, therefore, it is necessary that an administrative order is passed so that all these matters can be decided by one Bench.”

Accordingly, the judge directed the registry to take steps so that all matters are placed before the same Bench and they can be decided together by the same Bench.

Advocate Samarth Moray appearing for one of the litigants before Justice Kotwal and Advocate Gayatri Gokhale appearing in the matter pending before Justice Kamal Khata said that there are several conflicting judgements of the Bombay High Court on this issue.

However, in the latest judgement of December 2022 Justice PD Naik opined that the proceedings couldn’t be transferred.

Moray claimed that Bombay High Court decisions in favour of transfer are founded mainly on the laudable objectives of avoiding multiplicity of proceedings, conflicting decisions, and saving the Court’s time by permitting the recording of common evidence.

However, Gokhale said that plea under the domestic violence act specifically filed before the Magistrate cannot be transferred. Section 12 of the DV Act 2005 clearly mentions an application before a ‘Magistrate,’ despite the existence of Family Courts when the act was enforced, he said.

She highlighted that a lot of provisions under Code of Criminal Procedure wouldn’t be available in case of a transfer. For example- Appointment of a protection officer, deterrent orders a magistrate is empowered to passed.

Recently, a division bench of the Kerala High Court appointed Advocate Ashok Kini as amicus curiae to decide the same issue. Read his report here.

The Full Bench of the Madras High Court, in Arul Daniel’s case stated that neither could DV proceedings be quashed nor could they be transferred to a Family Court.

However, aspects of avoiding multiplicity of proceedings, conflicting decisions, etc haven’t been considered in the judgement.

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