Domestic Violence Case Can Be Transferred From Magistrate To Family Court: Bombay High Court

The Bombay High Court has held that an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) before a Magistrate seeking reliefs under Sections 18 to 22 can be transferred to a Family Court under Section 24 of the Code of Civil Procedure, 1908.

Section 12 under the DV Act empowers an aggrieved party or any person on their behalf to file an application to the Magistrate seeking protection orders, residence, monetary reliefs, custody and compensation under Sections 18-22 of the Act.

Justice Kamal Katha held the reliefs under the above Sections are meant to redress the breach of civil rights and even the proceedings in Family Courts are civil in nature.

"In my view, the High Court would have power to transfer the case from the Magistrate to the Family Court whether or not it has jurisdiction to try it to meet the ends of justice, to convenience the parties and more importantly to lead evidence before one Court, specially when the issues may be common, and between the same parties, to save both energy and expense, to save the precious time of Court and prevent conflicting views and multiplicity of proceedings.”

Therefore, the Family Court has the jurisdiction to entertain and decide reliefs sought under Sections 18 to 22 of the DV Act by virtue of Section 7(2) and Section 26 of the DV Act read with the provisions of the Family Courts Act, 1984, the court held.

Facts of the Case

The court was dealing with an application filed by the husband seeking to transfer the DV proceedings initiated by his wife to the Family Court where his divorce case is pending. In another case seeking transfer u/s 407 of the CrPC Justice Sarang Kotwal passed an order saying that only one Bench should decide the issue after which the matters were placed before Justice Katha.

In the first matter Advocate Taubon Irani for was the husband argued that it was necessary for the case to be transferred from the Magistrate Court to the Family Court to avoid multiplicity of proceedings. The wife had filed the DV case only with a view to harass the husband. The wife's DV application was similar to her interim application for maintenance pending before the Family Court, Irani argued.

On the other hand, Advocate Rohaan Cama along with Advocate Gayatri Gokhale for the woman submitted that the husband abandoned the wife and children for an extra-marital affair. He submitted that there were conflicting decisions of the Bombay High Court and submitted judgements of the Kerala High Court (MA Mony v M P Leelamma & Anr), Chhattisgarh High Court (Smt Neetu Singh v Sunil Singh) and Madras High Court against transfer.

Therefore, subsequent judgements (Abhijeet Jail v Manisha Jai) in support of transfer were all per incuriam. In 2011, the Supreme Court confirmed the Kerala High Court judgment, Advocate Mohit Bharadwaj for the wife in the second case argued.

After analysing the DV Act as well as the Family Courts Act, Justice Kamal Khata concluded that the transfer of proceedings initiated under Section 12 of the DV Act from the Magistrate's Court to the Family Court was permissible.

It doesn't take away the woman's statutory right of appeal under Section 29 of the DV Act. The right of appeal continues in the Family Court in accordance with the Family Courts Act, Court held.

Transfer is permissible to avoid multiplicity of proceedings and conflicting decisions. It would also facilitate speedy redressal and save time and costs for parties, the Court added.

Justice Khata said the High Court has the power to transfer cases under Section 24 of CPC and Section 407 of CrPC to meet the ends of justice, convenience of parties and witnesses, and when expedient for proper adjudication. The transfer does not result in loss of jurisdiction or ouster of jurisdiction of the transferee Court.

The Court referred to the Family Courts Act, 1984 which gives Family Courts jurisdiction of a Magistrate for proceedings under Chapter IX of the CrPC relating to maintenance. It held that Family Courts can exercise powers including issuing warrants for breach of orders.

Justice Khata observed that no bar exists on Family Courts hearing proceedings transferred from Magistrates. The intent behind DV law was to provide accessible justice to women through courts in their locality. However, Family Courts currently exist only in cities with over 1 million population. It follows the coordinate bench decision in Sandip Chakraborty vs Reshita Chakraborty, which was upheld by a Division Bench.

There is no conflict of views requiring reference to a larger bench on the issue of transfer of DV cases to Family Courts. The consistent view permits such transfer.

Case Title - Rohan Shah vs Nishigandha Shah

Case Number - MISC. CIVIL APPLICATION NO. 477 OF 2022

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