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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARATI H. DANGRE, J.
Sandip Mrinmoy Chakraboarty - Petitioner
Vs.
Reshita Sandip Chakrabarty & Anr. - Respondents
CRIMINAL WRIT PETITION NO.4649 OF 2015
Decided on : 06-09-2018
Special Marriage Act, 1954 - Protection of Women from Domestic Violence Act – Section - 12, 20, 21, 26, 18, 19, 21 and 22 – Family court – Section 2, 7 - Seeks transfer of proceedings - Seeking dissolution of marriage - Apart from relief of dissolution of marriage under provisions of Special Marriage Act, 1954, respondent wife also sought certain ancillary reliefs in form of grant of permanent physical custody of minor son and also alimony pendente lite under provisions of Special Marriage Act - A relief was also sought to grant permanent alimony and maintenance to the tune to be paid by Respondent No.1 under provisions of Special Marriage Act - A prayer was also made for grant of interim maintenance and also damages to be paid - Written statement-cum-counterclaim, before Family Court and also sought dissolution of marriage and custody of minor son - Another proceeding which is instituted by wife is in form of proceeding under Protection of Women from Domestic Violence Act, 2005 and an application under Section 12 of Domestic Violence Act was filed before learned Judicial Magistrate First Class at Cantonment Court - It is to be noted that in said proceeding, parents of petitioner are also impleaded as party respondents – Held, Court find sufficient substance in said contention of learned counsel for petitioner and in backdrop of scheme of Enactments which has been discussed, there is no iota of doubt in my mind that reliefs sought before learned Magistrate in Domestic Violence proceedings can be effectively tried and granted by Family Court – Court of opinion that in order to avoid multiplicity of litigations and in interest of parties, it would be appropriate that power under Section 24 can be exercised and proceedings can be clubbed together - It would attempt an expeditious disposal of both said proceedings which are pending - Evidence of respondent wife in Domestic Violence proceeding is already over, Family Court is directed to rely upon said evidence recorded in Domestic Violence proceedings by learned Judicial Magistrate First Class at Cantonment Court, and from that stage by taking said evidence which is already recorded, Family Court would proceed further and Family Court would also take into consideration averments that have been raised in Domestic Violence application preferred before learned Judicial Magistrate First Class at Cantonment Court - Whatever interim reliefs are in operation would remain in force when proceedings are pending before Family Court - In view of aforesaid findings recorded by me, Writ Petition deserves to be allowed - Rule is made absolute in terms of prayer clause (A) - Family Court is directed to dispose of proceedings expeditiously on being transferred and would endevour to finally dispose of both proceedings brought before it under Domestic Violence Act, 2005 within a period of six months from date of passing of this order – Order Accordingly.
Rule. Rule returnable forthwith. Heard by consent.
1. The present Writ Petition is filed by the Petitioner, thereby seeking transfer of the proceedings pending on the file of the learned Judicial Magistrate First Class at Cantonment Court, Pune to the Family Court at Pune.
2. The Petitioner who is the husband seeks transfer of the proceedings, which have been filed by the wife. The respondent wife had instituted a petition before the Family Court seeking dissolution of the marriage and the said petition was instituted on 16.12.2013 and came to be numbered as P.A.No.1386/2013. Apart from the relief of dissolution of marriage under the provisions of the Special Marriage Act, 1954, the respondent wife also sought certain ancillary reliefs in the form of grant of permanent physical custody of the minor son and also alimony pendente lite @Rs.75,000/per month under the provisions of the Special Marriage Act. A relief was also sought to grant permanent alimony and maintenance to the tune of Rs.2,00,00,000/to be paid by Respondent No.1 under the provisions of the Special Marriage Act. A prayer was also made for grant of interim maintenance and also the damages to be paid.
3. The specific case of the petitioner is that he filed a written statement-cum-counterclaim in the said P.A.No.1386/2013 before the Family Court and also sought dissolution of marriage and the custody of the minor son. Another proceeding which is instituted by the wife is in the form of the proceeding under the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) and an application under Section 12 of the Domestic Violence Act was filed before the learned Judicial Magistrate First Class at Cantonment Court, Pune on 11.02.2014. It is to be noted that in the said proceeding, the parents of the petitioner are also impleaded as party respondents and the major reliefs claimed in the said application reads thus:(i) This Hon'ble Court may be pleased to take cognizance of the present application under the provisions of the Protection of Women from Domestic Violence Act.
(ii) This Hon'ble Court may be pleased to direct the Respondents not to indulge in any act of omission or commission that may cause any kind of Domestic Violence to the Applicants.
(iii) This Hon'ble Court may be pleased to restrain the Respondents or any one claiming through them from disturbing the physical custody of Applicant No.2 with Applicant No.1.
(iv) This Hon'ble Court may be pleased to restrain the Respondent No.1 from alienating, encumbering, in any manner or crating a third party interest in the flat jointly owned by the Applicant No.1 and the Respondent No.1 being Flat No.F601 Maestros, S.No.60/7 Wanowrie, Pune – 411 040.
(v) This Hon'ble Court may be pleased to restrain the Respondents from dishousing the Applicants from the flat wherein the Applicants are currently residing being Flat No.F601 Maestros, S.No.60/7 Wanowrie, Pune – 411 040.
(vi)This Hon'ble Court may be pleased to restrain the Respondents from entering into the flat wherein the Applicants are currently staying being Flat No.F601 Maestros, S.No.60/7 Wanowrie, Pune – 411 040.
(vii) This Hon'ble Court may be pleased to restrain the Respondents from making any contact with the Applicants in any manner whatsoever whether physically, telephonically, electronically or otherwise.
(viii) This Hon'ble Court may be pleased to direct the Respondent No.1 to pay the Applicant No.1 an amount of Rs.75,000/p. m. as maintenance for herself, an amount of Rs.25,000/p. m. as maintenance for the Applicant No.2.
(xii) This Hon'ble Court may be pleased to restrain the Respondent No.1 from alienating, encumbering, creating any third party interest or disposing of his movable and immovable properties till the final disposal of the present application.
4. The grievance raised by the petitioner before this Court is that the reliefs sought in two different proceedings is substantially the same and the issues that would arise for conside
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