Domestic Violence Act special law to promote institution of family: Karnataka High Court

The Karnataka High Court recently opined that the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act/ DV Act) is a special legislation intended to protect and promote the institution of family [Oliver Menezes vs Serita Therese Mathias]. .As per Section 21 of the DV Act, issues including temporary custody of children can be dealt with under the Act though divorce proceedings are pending under the Indian Divorce Act, the Court said. "The reading of Section 21 (of DV Act) makes it clear that the same has overriding effect on any other law. Therefore there is no merit in the contention that the temporary custody of the children could be dealt with only in the proceeding under the Indian Divorce Act or Guardians and Wards Act," the Court ruled. Single-judge Justice KS Mudgal observed that the law is an 'intermediatory' between various civil laws such as Guardians and Wards Act, Hindu Minority and Guardianship etc and criminal laws. "The Domestic Violence Act is a special legislation enacted for the purpose of promoting the family relationship and institution of family. The act is an intermediatory between the civil laws like Guardians and Wards Act, Hindu Minority and Guardianship Act, Hindu Marriage Act etc., and the criminal laws like 361, 498-A, or such offences under the Indian Penal Code," the Court noted in its order. The Court passed this order while hearing a petition filed by a husband seeking to quash a subordinate court order granting custody of children to his estranged wife. .The marriage of the petitioner (husband) and respondent (wife) was solemnized in 2011. Out of the wedlock, the couple had daughter in 2012 and son in 2015. Subsequently, relations between the husband and wife strained..The wife the filed a criminal petition before Magistrate court, Mangaluru, under Section 12 of Domestic Violence Act against the husband. Before that the husband and wife had filed complaints against each other before the police.Even before notice was issued in the petition, the husband voluntarily appeared before the trial court.The trial court after hearing the parties, passed an interim order directing the husband to hand over the children to the wife during the pendency of the case. Aggrieved by this, the husband moved the High Court for setting aside the interim order and quashing the proceedings before the trial court. .Arguments of Parties.The husband contended that only the court adjudicating the matrimonial cases or the court of under Guardians and Wards Act, are competent to decide the issue of custody of the children. Further, it was argued that since the parties belong to Christian religion, they are governed by Indian Divorce Act. The husband also highlighted that both he and his wife had filed separate petitions for dissolution of marriage and, therefore, custody of the children can be granted only in those proceedings. The counsel appearing for the wife opposed the same, arguing that since the order of trial court is appealable one, the present petition under Section 482 of Code of Criminal Procedure before the High Court is not maintainable.Further, it was contended that since the proceedings under the Domestic Violence Act are civil in nature, the petition under Section 482 of CrPC would not lie.It was further alleged that husband’s mother is ill-treating the minor daughter and, therefore, the welfare of the children cannot be guaranteed if the children are sent to the husband's house. .What Court said .After going through the rival contentions, the Court observed that Section 21 of the Domestic Violence Act makes it clear that the Act has an overriding effect on any other law. Therefore, it held that there is no merit in the contention that the temporary custody of the children could be dealt with only in the proceedings under the Indian Divorce Act or Guardians and Wards Act. On Section 29 of the Act, the Court held that any order passed by the Magistrate under the Domestic Violence Act is an appealable one. "Since the word ‘shall’ is used in Section 29 any order passed by the Magistrate under the DV Act is appealable one. Section 29 does not provide for granting of an interim order is not an acceptable justification to the aggrieved party to rush to the High Court invoking Section 482 of CrPC bypassing Section 29. Such interpretation defeats the object of the Act and Section 29," the Court said. On a pending application yet to be heard before trial court, the Court said, "The said application is still pending for hearing. Without pursuing the hearing of that application, the husband has filed this petition and litigating in this Court since last about three years. Had he sought adjudication of the application on merits before the trial Court itself, the matter could have been disposed of by this time."Regarding the pendency of petition for dissolution of marriage, the Court said that will not prohibit Magistrate from adjudicate the application for custody of the children on a plea under the DV Act. Referring to various precedents, the Court observed that the power under Section 482 of CrPC to quash the proceedings has to be sparingly exercised. While deciding such petition, the Court cannot sit in trial or embark on an enquiry upon the merits of the case pending before the trial Court, added the Court. "Therefore, there is no merit in the contention that the pendency of the matrimonial cases divest the jurisdiction of the Magistrate to adjudicate the application for custody of the children or the application filed under Section 12 of the DV Act."On these grounds, the Court refused to entertain the petition filed by the husband seeking to quash the JMFC order. [Read Order]