JUDGMENT :

Amit Rawal, J.

This petition is directed against Ext.P5 order dated 23/02/2023 in I.A.No.3/2022 in O.P.No.1149/2008. Petitioner/wife filed a petition by invoking the provisions of Sections 7 (1) explanation (c) and (d) of the Family Courts Act, 1984. The aforementioned petition was filed on 19/08/2022 and in response to the aforementioned petition, respondent/husband appeared and an objection was filed. However, during the pendency of the aforementioned petition, an application has been filed under Order VI Rule 7 (d) of the Code of Civil Procedure for incorporating the additional relief of claiming compensation as provided under Section 22 of the Act. The said application has been rejected by the Family Court by Ext.P5 order on the ground that such reliefs cannot be claimed as per the provisions of Section 26 of the Act. It was held that Family Court had no original and direct jurisdiction to entertain the original petition for the reliefs under the 2005 Act as, in view of the provisions of Section 28 of the 2005 Act, the trial under the various provisions of the Sections shall be governed by the provisions of the Code of Criminal Procedure whereas the Family Court cannot, in such circumstances, decide a petition filed seeking comprehensive and combined relief.

2. In support of the arguments, the counsel for the petitioner relied upon paragraph 36 of the judgment of the Supreme Court in Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, 2017 KHC 6434.

“36. S.26 of the Act, 2005 has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by Act, 2005 is expressly barred from consideration by a Civil Court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the Civil Court. When the proceeding initiated by plaintiff in the Judge, Small Causes Court alleged termination of gratuitous licence of the appellant and prays for restraining the appellant from using the suit flat and permit the plaintiff to enter and use the flat, the right of residence as claimed by the appellant is interconnected with such determination and refusal of consideration of claim of the appellant as raised in her counter claim shall be nothing but denying consideration of claim as contemplated by S.26 of the Act, 2005 which shall lead to multiplicity of proceeding, which can not be the object and purpose of Act, 2005."

3. We have heard the learned counsel for the petitioner, Ms.Dhanya P. Ashokan and proceed to decide the matter in the absence of any contesting respondents, as, despite service, there is no appearance for the respondents.

4. The language of Sections 12, 18, 19, 20 and 21 is entirely different. As per the provisions of Section 12, Magistrate, on the basis of the evidence, can determine compensation leaving right to party to claim damages and other amount of compensation in an appropriate forum, whereas under Sections 18, 19, 20 and 21 the destitute wife is entitled to claim independent reliefs in terms of protection, residence, monetary and custody orders. The aforementioned reliefs have not been enshrined under Section 12 of the 2005 Act. Section 12 enables the parties to either claim a relief or any other relief. The expression 'any other relief' is at the discretion of the wife to be either claim in a petition under Section 12 or in the manner and mode as has been done. The expression 'in addition to or along with any other relief', would not prevent the aggrieved party to claim relief in any other suit or legal proceedings; in other words, it cannot impel/compel to raise such relief under Section 12 alone and urged this court to set aside Ext.P5 order.

5. This Court had appointed Sri.M.Asok Kini as Amicus Curiae to render assistance to this Court. Amicus Curiae has submitted his report and had referred to the provisions of Section 9 of the Code of Civil Procedure