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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. MUHAMED MUSTAQUE, KAUSER EDAPPAGATH, JJ.
Mahinkutty S/o Abdul Karim – Appellant
Versus
Anshida D/o Ibrahim – Respondent
Mat. Appeal No. 739 of 2014
Decided On : 09-04-2021
Civil Procedure Code, 1908 – Section 11 – Evidence Act – Sections 40 to 43 – Protection of Women from Domestic Violence Act, 2005 – Sections 20, 3, 12 – Recovery of money and gold ornaments – Res-judicata – Respondent, who is the wife of the 1st appellant, filed the original petition for recovery of money and gold ornaments. – Appellants raised a preliminary objection as to the maintainability of the petition on the ground that very same relief sought by the respondent before the Judicial First Class Magistrate Court, Perumbavoor in a proceeding initiated under the Protection of Women from Domestic Violence Act, 2005 was rejected, and, hence, the second petition for the same relief before the Family Court is barred by the principles of res-judicata. – Family Court overruled the objection as per the impugned order holding that the proceedings under the Act are of a summary nature and the second petition before it, is not barred by the principles of res-judicata
Finding of the court :
Provisions of the Act in relation to monetary relief under Section 20 as such do not intend to penalise the respondent in such proceedings. – Statutory provisions will have to be treated as remedial to protect the women – Court have already adverted that the Act does not contemplate adjudication. – Proceedings therefore are only to be treated as an inquiry. – Question, therefore, arises how far the outcome in an inquiry in a remedial procedure would have an impact in adjudication between the same parties before the competent court or forum? – Court mentioned earlier that there must be predicate act of domestic violence to enable the Magistrate to give any relief as referable under Section 20. – Doctrine of res-judicata bars the court from adjudicating the same issue which has been conclusively decided by the competent forum or court between the same parties. – Inquiry being treated as an ancillary or incidental procedure of the main issue of domestic violence, any outcome of such proceedings itself is not decisive in the subsequent proceedings. – Substantial issue in a proceedings under Section 20 must be domestic violence. – Relief of monetary claims under Section 20 is an ancillary relief. – Outcome in ancillary proceedings, that too in the proceedings in the nature of inquiry itself will not bar the Family Court or any other competent court having power to adjudicate such dispute. – Outcome in such inquiry proceedings may be relevant while deciding the dispute in subsequent proceedings before the competent court under Sections 42 or 43 of the Indian Evidence Act, 1872 – Apex Court in Satish Chander Ahuja vs. Sheha Ahuja, AIR 2020 SC 5397, opined that such order under the Act is a relevant evidence as contemplated under Sections 40 to 43 of the Evidence Act. – Court, therefore, find no merit in the appeal. –
Result : Appeal Dismissed.
JUDGMENT :
A. MUHAMED MUSTAQUE, J.
1. This appeal arises from the order of the Family Court, Muvattupuzha, in a pending matter regarding the maintainability of the original petition.
2. The respondent herein, who is the wife of the 1st appellant, filed the original petition for recovery of money and gold ornaments. The appellants raised a preliminary objection as to the maintainability of the petition on the ground that very same relief sought by the respondent before the Judicial First Class Magistrate Court, Perumbavoor in a proceeding initiated under the Protection of Women from Domestic Violence Act, 2005 (for short, the ‘Act’) was rejected, and, hence, the second petition for the same relief before the Family Court is barred by the principles of res-judicata. The Family Court overruled the objection as per the impugned order holding that the proceedings under the Act are of a summary nature and the second petition before it, is not barred by the principles of res-judicata.
3. What is the legal effect of the order passed under Section 20 of the Act granting monetary reliefs is the sole issue to be considered in this matter.
4. Section 20 of the Act refers to monetary reliefs. The Magistrate is conferred with the power to direct the respondent to pay monetary reliefs to the aggrieved person for the losses suffered as a result of domestic violence, including restoration of the property removed from the control of the aggrieved person. Section 26 of the Act enables to claim such reliefs as claimed under Section 20 before the Civil Court, Family Court or Criminal Court.
5. The learned counsel for the appellants Sri. Mathew John, placing reliance on the judgment in Pandurang Ramchandra Mandlik and Another vs. Smt. Shantabai Ramchandra Ghatge and Others, AIR 1989 SC 2240 and the judgment of the Madras High Court in Crl. O.P. No. 28458/2019 and connected cases submitted that the proceedings under the Act are of a civil nature, that the order passed in proceedings initiated under the Act has to be treated as an outcome of civil proceedings and the conclusive nature of the proceedings determining the rights and obligations of the parties cannot be reopened by filing another petition for the same relief before the Family Court.
6. On the other hand, learned counsel Sri. Vipin Narayan appearing for the respondent, placing reliance on Satish Chander Ahuja vs. Sneha Ahuja, AIR 2020 SC 5397, Govindan vs. Subaida Beevi, 1997 (1) KLT 910, P.G. Eshwarappa vs. M. Rudrappa and Others, (1996) 6 SCC 96, argued that the order of the Magistrate can only be treated as an order of a criminal Court in a criminal proceedings that the order passed in a proceedings under the Act could, at best, be taken as a relevant piece of evidence before the Family Court and the Family Court is not bound by the orders under the Act.
7. The Act was enacted by the Parliament based on the larger interest of human rights concomitant with various declarations made in international conventions. The very objective of the Act is to protect the women as against the violence that occurs within the family and for matters connected therewith. The Act, therefore, conceives a scheme of protective measures with an object to protect women. The scheme of the Act on a close scrutiny, would reflect the intention of the parliament, that it was not enacted to create another platform for adjudication of disputes arising out of any matrimonial dispute, but to take measures to protect the women. The proceedings are therefore, understood as supplemental provisions besides the right to adjudicate any dispute arising out of a matrimonial relationship as conferred under law before the competent civil court or Family Court or criminal court. The protective measures as required to be passed may include residential orders, monetary reliefs, custody orders etc. The objective criteria in such proceedings is to protect the women and not to adjudicate upon the dispute. The proceedings are ordained for the
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