High Court Cannot Deprive Wife Of Her Right To Choose Appropriate Forum To Seek Maintenance: Bombay High Court

It is the choice of a wife to file Domestic Violence proceedings seeking maintenance and reliefs before a Magistrate Court or before a Family Court when the husband has already instituted divorce proceedings, the Bombay High Court has recently observed while holding that in such a scenario, the High Court should not entertain applications filed by the husband to transfer the proceedings before Magistrate to the Family Court.

Single-judge Justice Arun Pednekar dismissed with Rs 10,000 costs, a miscellaneous application filed by a husband, who sought to transfer the proceedings initiated by his wife before a Magistrate Court in Sewree to the Family Court in Bandra, where he himself has instituted divorce proceedings against the wife.

The husband argued that the courts have regularly held that the Domestic Violence proceedings can be transferred to the Divorce proceedings and thus sought transfer of his wife's plea from Sewree Magistrate to Family Court in Bandra, to avoid "Conflict" in the orders passed by both the courts which will deal with same facts and evidences to pronounce a decision.

However, Justice Pednekar in his July 9 order observed that the question of conflict, if any, should not be used to the prejudice of the wife and her minor daughter seeking urgent maintenance and residence order.

"The transfer of DV proceeding from Magistrate court to the Family Court would further delay the proceedings. There is no bar to seek maintenance both under the DV Act and the Hindu Marriage Act and that she has to only disclose the earlier proceedings and maintenance order passed in the subsequent proceedings so as to avoid conflict of orders," the judge said.

The single-judge further emphasised that the power of transfer can be exercised to prevent abuse of process of law but not for depriving a wife of her choice to file proceedings before a forum.

"It is the choice of the wife to file DV proceedings before the Magistrate under Section 12 Protection of Women from Domestic Violence Act or under Section 26 of the Hindu Marriage Act, in the pending proceedings. When this Court exercise the power of transfer under Section 24 of the Civil Procedure Code, this Court takes away the wifes right to choose the forum and the exercise of powers of transfer is frought with danger, the first causality being expeditious disposal of Section 12 application by the Magistrate," the judge held.

Transfer application, the judge stressed, should be entertained only to meet ends of justice and care should be taken to ensure that the wife and children are not deprived of immediate maintenance and residence orders.

Further the judge rejected the argument of conflict of judgment in the orders passed by the Magistrate and the one by the Family Court, a ground argued by the husband to seek transfer of the proceedings.

"If conflict of judgment on same facts and between the same parties is the sole ground of transfer, every transfer petition filed by the husband will have to be allowed by this Court making the choice of wife to approach the Magistrate meaningless. The choice available to the wife file application either under section 12 or under Section 26 of the D.V. Act would be rendered nugatory," the judge underscored.

With these observations, the judge dismissed the husband's application.

Case Details: A vs P (MCA/159/2023)

Advocates Taubon Irani, Sushmita Sherigar and Disha Shetty appeared for the Husband. Advocates Archit Jayakar, Boomi Upadhyay and Shivani Prasad instructed by Jaykar & Partners represented the Wife.

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