Point of law: Domestic relationship is defined in Section 2(f) of D.V. Act as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in nature of marriage, adoption or are family members living together as a joint family.

JUDGMENT :

P.G. Ajithkumar, J.

The petitioner in unnumbered Transfer Petition (C) No.25 of 2023 has filed this appeal invoking the provisions of Section 5(i) of the Kerala High Court Act, 1958. When this appeal was filed, the Registry raised an objection regarding its maintainability. As per the order dated 07.02.2023, the Registry was directed to number the Transfer Appeal subject to the decision regarding maintainability on the judicial side.

2. On 10.02.2023, notice was directed to be served on the respondent and an order of interim stay was granted for a period of one month. The interim order has been extended from time to time.

3. On 20.03.2023, the matter was referred for mediation with a direction that the mediator who mediated the matter on an earlier occasion should conduct mediation. The mediation, however, did not fetch any positive result.

4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

5. The appellant wants M.C.No.20 of 2020 pending on the files of the court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam to be transferred to the Family Court, Ernakulam. The application was filed invoking the jurisdiction of this Court under Section 24 of the Code of Civil Procedure, 1908. A proceeding initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short D.V. Act) is of a civil nature. But, in view of Section 28 of the said Act, such an application is governed by the provisions of the Code of Criminal Procedure, 1973. The Magistrate dealing with the application is empowered under sub-section (2) of Section 28 for laying down its own procedure also. The forum constituted to deal with an application under Section 12 of the D.V. Act as per Section 27 is the court of a Judicial Magistrate of the First Class or, as the case may be, a Metropolitan Magistrate. Therefore, the proceedings in an application filed under Section 12 of the D.V. Act has to be regulated as per the provisions in the Code of Criminal Procedure, subject, of course, to the procedure being evolved by the Magistrate concerned to suit the particular facts and circumstances of the case. If so, a petition filed before the High Court for transfer of an application under Section 12 of the D.V. Act can be governed by the provisions under Section 407 of the Code of Criminal Procedure. But, Section 407 can be invoked only when the transfer is from the court of one Magistrate to another Magistrate. Similar is the position if Section 24 of the Code of Civil Procedure is invoked. Section 24 shall be applied if the transfer is sought from one civil court to another civil court.

6. When the transfer is sought from the court of a Magistrate to a Family Court, neither Section 407 of the Code of Criminal Procedure nor Section 24 of the Code of Civil Procedure can be invoked. However, the High Court can certainly exercise its jurisdiction under Article 227 of the Constitution of India if a transfer is required from a civil court to a criminal court and vice versa in the interest of justice, and if such a transfer is not prohibited under the provisions of law. Hence, we hold that the Transfer Petition although could not have been entertained under Section 24 of the Code of Civil Procedure, it should have been considered on the judicial side under Article 227 of the Constitution of India. In that view of the matter, the Transfer Petition as well as the Transfer Appeal is maintainable.

7. In the impugned order the plea of the appellant was found not entertainable in the light of the law laid down by this Court in Anish Antony Thimothy and others v. Neetha and another [2011 (3) KHC 46] and Rajeev Thomas and others v. Sheeja Antony and others [2018 (4) KHC 8]. In the said decisions, this Court took the view that a case under the D.V. Act pending before a Magistrate is not liable to be transferred to the Family Court. The learned counsel appearing for the appellant