IMPORTANT POINTS
(1) There is no specific bar on Family Court to try PWDV proceedings.
(2) Appeal – A litigant neither has right to appeal in a particular forum nor can insist on a particular procedure.

JUDGMENT

This Miscellaneous Civil Application is filed by the Applicant-husband under Section (“u/s”) 24 of the Civil Procedure Code, 1908 (“CPC”) to transfer the Application filed by the Respondent-wife u/s 12 of the Protection of Women from Domestic Violence Act, 2005 (“PWDV Act”) of from Metropolitan Magistrate’s 62nd Court, Bhoiwada, Mumbai to Family Court, Bandra, Mumbai.

2. The Applicant-husband and Respondent-wife got married on 23rd December 2001 at Mumbai. Out of wedlock there are two daughters born; one on 26th October 2002 and another 19th September 2005. Both are major now. Though the couple resided in USA initially, they returned to India in 2008. Eighteen years into their marriage, in or around 2019, the couple decided to separate on account of marital discord. The respondent-wife left for USA on 25th October 2021 with the intention to seek divorce and maintenance before the Supreme Court of New Jersey. The respondent-wife’s application before the US Court was dismissed on the preliminary ground of jurisdiction.

3. On the other hand, Applicant-husband filed for divorce u/s 13(1) (ia) of Hindu Marriage Act, 1955 by filing Marriage Petition bearing No. A-347 of 2021 before the Family Court, Mumbai.

4. On being served with the Marriage Petition, the Respondent-wife decided to seek maintenance for herself and their children through an Interim Application (IA) in the Marriage Petition before the Family Court. Aggrieved by the Applicant-husband action, the Respondent-wife filed an application under Section 12(1) and sought reliefs u/s 18 to 22 of PWDV Act before the Metropolitan Magistrate’s Court on 25th July 2022.

5. Ms Irani, Learned Counsel for the Applicant-husband, urged that the Respondent-wife returned to India from USA only after eight months. She had made an Application before the US Court only with an intent to pressurise the Applicant-husband to pay her higher maintenance and adhere to her terms. She failed there and although she had sought maintenance by making an Interim Application on 27th June 2022 before the Family Court, Mumbai, on 25th July 2022 only with an intent to harass the Applicant-husband she chose to also file an Application bearing No. DV/107 of 2022 under Section 12 before the Metropolitan Magistrate’s Court.

6. She submitted that the reliefs sought in the Metropolitan Magistrate Court are similar to her Application for interim maintenance before the Family Court. According to her the transfer would obviate dual arguments in different forums, for the same reliefs, on same facts, between the same parties and probably even prevent conflicting views and findings. Thus, both parties could not only avoid two different trials in different Courts but also the expenses attached to it. This exercise would also avoid multiplicity of proceedings and thus she submitted that in the interest of all concerned, the Court ought to transfer the proceedings. She submitted that no prejudice would be caused if the proceedings from Metropolitan Magistrate Courts were transferred to the Family Court. In this backdrop, she submitted that the transfer Application be allowed and the Application before the Metropolitan Magistrate Court be transferred to the Family Court. In support of her contention to transfer the Application Ms Irani relied upon the following judgments:

(a) A v X, Amit Borkar J in Misc. Civil Application No. 498 of 2022 decided on 2nd February 2023, (paragraph 17 to 19)

(b) Anirudh Ajaykumar Garg v State of Maharashtra, CV Bhadang J in Misc. Civil Application No. 76 of 2021 decided on 15th December 2021, (paragraph 19 to 21)

(c) Sandeep Shetty v Dr Sarika Shetty, 2021 SCC OnLine Bom 3441: (2022) 1 AIR Bom R 506, (paragraph 7, 9, 10 to 12)

(d) Hitesh Prashmalji Mehta v Aashika Hitesh Mehta, CV Bhadang J in Misc. Civil (St) Application No. 788 of 2020 decided on 28th September 2020, (paragraph 11 to 19)

(e) Sandip Mrinmoy Chakraboarty v Reshita Sandip Chakraboarty & Anr., [SJ - 2018 SCC On