Point of Law: Family and Personal Law - Transfer of complaint - Petitioner has been delaying the proceedings in the application under Section 12 of PWDV Act, also not complying with the orders passed by Magistrate diligently and is avoiding to make payment of maintenance to respondent.

JUDGMENT :

1. Petitioner and respondent are husband and wife whose marriage ran into rough weather resulting in the respondent leaving the matrimonial home on the 9th of September, 2011. Thereafter, the respondent filed a complaint bearing No. 24720/2011 (New No. 615039/2016) under Section 12 of the Protection of Women from Domestic Violence Act (in short the PWDV Act) against the petitioner and his parents, which is pending disposal before the learned Metropolitan Magistrate, South-East District, Saket Courts.

2. Since the petitioner failed to comply with the directions of the learned Metropolitan Magistrate, the respondent has filed execution petitions which are also pending before the learned Metropolitan Magistrate. In the year 2014 the petitioner filed a petition seeking divorce being HMA 1210/2014 against the respondent, which is pending before the learned Principal Judge, Family Courts, South-East District, Saket Courts.

3. By this petition the petitioner seeks transfer of the complaint filed by the respondent under Section 12 of the PWDV Act and the execution petitions filed therein from the Court of learned Metropolitan Magistrate to the learned Principal Judge, Family Courts, South-East District, Saket Courts.

4. According to the petitioner both the petitions arise out of the matrimonial dispute between the parties wherein both parties have levelled allegations and counter-allegations and hence the entire evidence of the parties is same. Evidence of the petitioner has already been recorded in the divorce petition and in the complaint filed under PWDV Act by the respondent, evidence of the petitioner is yet to be recorded. The petitioner further states that since the Court of learned Metropolitan Magistrate is overburdened, the recording of evidence would be a challenge, hence in the interest of justice all the aforementioned cases be clubbed together and decided by one Court to maintain judicial propriety and to avoid conflicting decisions. Learned counsel for the petitioner relies upon Section 26 of the PWDV Act which empowers the Family Court to decide the complaint and execution petitions as well. Reliance is also placed on the decision reported as MANU/MH/3459/2019 Santosh Machindra Mulik Vs. Mohini Mithu Choudhari.

5. Learned counsel for the respondent refuting the arguments of learned counsel for the petitioner states that the complaint under Section 12 of the PWDV Act was filed on 23rd September, 2011 i.e. prior to the filing of the divorce petition and in the said complaint, the complainant’s i.e. the respondent's evidence has already concluded and the divorce petition was filed by the petitioner as a counter-blast to the complaint filed under Section 12 of the PWDV Act by the respondent. Hence the complaint filed by the respondent cannot be transferred to the Principal Judge, Family Courts. Learned counsel for the respondent refuting the arguments of learned counsel for the petitioner further contends that the petitioner is not entitled to be heard in matrimonial proceedings on account of the fact that he has not cleared arrears of maintenance and number of execution petitions filed by the respondent are pending before the learned Metropolitan Magistrate. Reliance is placed on the decisions reported as (2006) 130 DLT 643 DB Santosh Sehgal Vs. Murari Lal Sehgal. The petitioner is openly flouting the orders of the Court and making every effort to delay the proceedings in the complaint case under Section 12 of the PWDV Act. Despite the fact that the respondent has been examined as claimant and cross-examined on number of dates, adjournments were sought on one pretext or the other on behalf of the petitioner. Constrained by the action of the petitioner seeking repeated adjournments, learned Metropolitan Magistrate was pleased to close the right of the petitioner to further cross-examine the respondent.

6. According to learned counsel for the respondent, the Court of Magistrate alone has the jurisdiction to adjudicate