Family Court Has Jurisdiction To Entertain Plea Seeking Reliefs U/S 18-22 Domestic Violence Act: Kerala High Court

The Kerala High Court has laid down that the Family Court has the jurisdiction to entertain a petition seeking reliefs under the Protection of Women from Domestic Violence Act, 2005.

"What is discerned from the provisions of Section 12 is that an aggrieved person is free to elect any of the reliefs. The legislature in the wisdom has framed the Act by taking into consideration the doctrine of election. The parties are free to elect either a remedy under Section 12 or reserve the right to claim other reliefs as provided under Sections 18, 19, 20 and 21 in the manner and mode as has been done. The plain and simple reading of the provisions of Section 26 left the question clear and unambiguous that a party seeking a claim under any provisions of the civil or criminal court much less a family court can always claim relief in addition as provided under Sections 18, 19, 20, 21 and 22 of the Act," the Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha explained. 

The matter pertains to the filing of original petitions for divorce by the petitioner-husband and the respondent-wife before the Family Courts at Alappuzha and Ernakulam, respectively, following the breakdown of marital relations of the couple. The respondent had also filed separate petitions under the Protection of Women from Domestic Violence Act, 2005 ('DV Act'), the Guardians and Wards Act, and for maintenance, before the Family Court, Ernakulam.

The petitioner-husband contended in all these petitions that the Family Court at Ernakulam did not have the jurisdiction. However, petitioner's objections were eventually dismissed. The petitioner subsequently approached the High Court averring that the only court vested with the jurisdiction to entertain a petition under the provisions of the DV Act is the Judicial Magistrate as per Section 12 of the enactment.

As per Section 12 of the DV Act, 2005, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs that are stipulated under Sections 18-22 of the statute. Under the said provisions, the Magistrate is empowered to pass a Protection Order (Section 18), Residence Order (Section 19), Custody Order (Section 21), Compensation Order (Section 22), and monetary reliefs (Section 20).

It was averred by the petitioner that if the respondent wife is permitted to claim the relief as provided under the provisions of Sections 18, 19, 20 and 21 of the Domestic Violence Act, 2005, the provisions of Section 12 of the DV Act would not only be rendered redundant but the petition would also become not maintainable. It was added that the same would create a very incongruous position for the reason that the order passed under the provisions of the DV Act is appealable before the trial court whereas any leave granted under Section 7 of the Family Court Act is appealable before the High Court. 

On the other hand, the respondents argued that Section 12 enables the parties to either claim a relief or any other relief, and that the expression 'any other relief' is at the discretion of the wife to either claim in a petition under Section 12 or in the manner and mode as in the present case. It was submitted that the expression 'in addition to or along with any other relief', would not prevent the aggrieved party to claim relief in any other suit or legal proceedings, and that it could not compel to raise such relief under Section 12 alone. 

Another Division Bench of the High Court had earlier, appointed Advocate M. Ashok Kini as the Amicus Curiae in the matter to assist it in deciding whether the Family Court would be vested with the jurisdiction to entertain a plea seeking reliefs under the DV Act, 2005. 

The Amicus Curiae had submitted in his report that an original petition seeking reliefs under Sections18-22 of the Domestic Violence Act would be maintainable before the Family Court.

Advocate Kini stated that although the proceedings are before the Magistrate, the reliefs (apart from the punishment) under the Act are of civil nature. On a conjoint reading of Section 9 CPC (jurisdiction of civil courts) and Section 36 of the DV Act (that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force), the counsel opined that Section 9 CPC enables a civil court to grant reliefs which are of civil nature including the reliefs envisaged under the DV Act.

The Court, on perusal of the provisions of the DV Act, was of the considered view that Section 12 empowers an aggrieved person to elect any of the reliefs.

It added that Section 26 of the Act does not denude Family Court from dealing with a petition in a claim under Sections 18, 19, 20, 21 and 22 of the Act. Section 26 expressly states that, "Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the Act". 

It thus proceeded to declare, 

"The apprehension expressed by the petitioner by submitting an application for return of the original petition, in our view is far-fetched and a figment of imagination; rather ought to have pressed the issue of maintainability and lead evidence by leaving the question open for the Trial/Family Court to decide at an appropriate stage. Similarly, the argument that the relief under Sections 18, 19, 20, 21 and 22 cannot be granted by the trial court is also untenable much less opaque, capricious and hereby rejected. The whole purpose of carving out the Family Court Act is to club various provisions by confining the jurisdiction of one court to prevent multifariousness. This is precisely what has been sought in this case". 

It thus held that the order of the trial court rejecting the application based on the appreciation of the provision was legal and justified. 

The pleas were accordingly dismissed by the Court. 

Citation: 2023 LiveLaw (Ker) 623 

Case Title: George Varghese v. Treesa Sebastian & Ors. and connected matter

Case Number: OP (FC) NO. 539 OF 2022 and OP (FC) NO. 166 OF 2023

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