2007 (3) Crimes 476 (Ker.)
SHORT NOTE
KERALA HIGH COURT
R. Basant, J.
Mony —Petitioner
versus
Leelamma —Respondent
T.P. (Cr.) No. 6 of 2007 and Crl. M.C.
No. 165 of 2007
Decided on 29-3-2007

IMPORTANT POINT
High Court does not have the power to transfer a petition under Section 12 of Protection of Women from Domestic Violence Act to any Civil Court or Family Court.

Headnote:(i) Protection of Women from Domestic Violence Act, 2005—Sections 12, 20 and 22— Petition under filed by wife before Magistrate—Transfer petition by husband for transfer of application to Family Court where two original petitions between parties were pending—Though Family Court and Civil Court had jurisdiction to grant reliefs under Section 18 to 22 of the Act but there was no power for Family Court or Civil Court to deal with application under Section 12 of the Act—High Court could not direct transfer of petition.

       Held: Though under Section 7(2)(b), the Family Court is clothed with authority to deal with matters, which, under any other law the Family Court can consider, it is significant that the Family Court is not invested with any power to deal with an application under Section 12 of the DVA. That reliefs under Sections 18 to 22 can be claimed before the Family Court in any other proceedings is a world different from the contention that a petition under Section 12 can be considered and disposed of by the Family Court. There is nothing in the language, scheme or purport of the DVA, which can even remotely suggest that a Civil Court or Family Court is competent to deal with an application under Section 12 and grant reliefs under Sections 18 to 22 in such application under Section 12. Of course, the Family Court and the Civil Court have the jurisdiction in a proceedings pending before it to grant the reliefs under Sections 18 to 22 of the DVA also. But certainly there is no power for the Family Court or Civil Court to deal with an application under Section 12. They cannot entertain an application under Section 12 either when it is originally filed before them nor can the superior Courts entertain any jurisdiction to transfer such petition under Section 12 pending before the Magistrate to such Civil or Family Court so that such Court can entertain jurisdiction to deal with an application under Section 12. The decision of the Legislature to confer the right to redressal through the Criminal Court cannot obviously be denied to or taken away from an aggrieved woman by such an order of transfer by the superior Court. That she can claim the reliefs under the DVA through the Civil Court also is no reason to deprive her of the vested statutory right of procedure to claim enforcement through the Criminal Court. I, therefore, take the view that except the Magistrate clothed with authority to deal with petitions under Section 12 of the DVA, no Civil Court or Family Court has jurisdiction to deal with an application under Section 12. Consequently this Court cannot direct transfer of a petition under Section 12 pending before the Magistrate to the Family Court and thus clothe the Family Court with jurisdiction to consider such application under Section 12. The prayer for transfer cannot hence succeed. (Para 9)

       (ii) Protection of Women from Domestic Violence Act, 2005—Section 27—Jurisdiction—Magistrate within the local limits of which person aggrieved permanently or temporarily resided would also have jurisdiction to deal with the matter. (Para 10).

       (iii) Protection of Women from Domestic Violence Act, 2005—Sections 12, 20 and 22—Family Courts Act—Section 7(2) (b) —Petition to quash complaint and proceedings filed under DVA on plea that claims could be overlapping as made before Family Court—Claim before Family Court related to title over the property whereas claim in petition under Section 12 of DVA was for a right of residence in property—Even if monetary/compository claim was allowed under Section 12 of the DVA such payment was to be set off against amounts due under the incidental heads as per decree or order of any other Court—Notwithstanding the option to claim identical relief elsewhere, jurisdiction of Magistrate under DVA was not ousted. (Paras 12 to 14)

       Result: Petition dismissed.