Domestic Violence cases can be transferred to Family Court to be heard along with matrimonial dispute: Bombay HC
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Domestic Violence cases can be transferred to Family Court to be heard along with matrimonial dispute: Bombay HC

Omkar Gokhale

The Bombay High Court recently reiterated that cases under the Domestic Violence Act can be transferred to the Family Court so that they can be heard together with matrimonial proceedings for divorce in the interest of Justice.

A Single Judge Bench of Justice SC Gupte passed the order on an application filed by the husband seeking transfer of criminal proceedings under Domestic Violence Act (DV Act), 2005 pending before Magistrate Court to a Family Court, so that it can be tried along with a pending divorce petition.

The applicant husband submitted that in the interest of justice and speedy disposal, and in view of Section 26 of the DV Act, the criminal application should be transferred to the Pune Family Court, where both proceedings can be conveniently tried by the same Court.

Ordinarily, proceedings under the DV Act are tried by criminal courts, and the Family Court does not have jurisdiction in the matter. However, Section 26 of the DV Act allows the transfer legal proceedings under the Act to the Family Court. It states,

“... 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 this Act....”

In support of his application for transfer, the husband also referred to the cases of Sandip Mrinmoy Chakraboarty V Reshita Sandip Chakrabarty and Minoti Subhash Anand Vs. Subhash Manoharlal Anand decided by the Bombay High Court.

The Court noted that respondent wife had filed domestic violence plea before Magistrate Court in Pune after the divorce proceeding were initiated against her by the husband.

Opposing the application for transfer of the case, the wife submitted that the Family Court has no authority or jurisdiction to consider a domestic violence proceeding. It was further argued that the transfer would curtail the right of the wife to file an appellate remedy, which she would have if the Magistrate Court was to decide the application.

To buttress her case, the  wife referred to case of Neetu Singh v Sunil Singh decided by Chhattisgarh High Court. In view of this judgement, the wife argued that option to proceed before a family Court in a pending matrimonial proceeding is available to the aggrieved party and that if she, being the aggrieved party, does not choose to avail of this option, it cannot be thrust on her.

However, the High Court found merit in the husband’s application, finding that in the interest of justice and for the sake of convenience, Section 26 of the DV Act can be invoked to transfer all the proceedings to the Family Court. Justice Gupte also noted that the Bombay High Court had earlier allowed such transfer of domestic violence proceedings from the Judicial Magistrate Court to the Family Court. He noted,

“If the two matters have to be heard together, and it is certainly in the interest of justice that they be so heard, they can come only before the Family Court. So far as jurisdiction of that court is concerned, having regard to Section 26 of the Act and the judgments of our courts ruling in favour of such jurisdiction, it cannot possibly be urged that the Family Court lacks such jurisdiction.”

The Court added that the wife would not lose her right to appeal since she can move High Court against the order of Family Court. In view of these observations, Justice Gupte allowed the husband’s application, observing,

“In any event, since from the domestic violence proceeding that may be heard along with the matrimonial proceeding before the Family Court, an appeal would lie to this court, and in that sense, no party can be said to be losing his/her right of appeal, what is lost is a further right of revision. That, however, is no ground to deny transfer of proceedings on the basis of the principle of justice.”

The applicant husband was represented by advocates Abhijit Sarwate and Ajinkya Udane, whereas, advocate Suhas Rohile appeared for the respondent wife.

[Read Order]

Santosh-Mulik-v-Mohini-Choudhari-Bombay-HC-order.pdf
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