Bombay High Court Allows Man's Plea For Transfer Of Domestic Violence Proceedings To Family Court Where His Divorce Case Is Pending

Update: 2023-02-03 11:26 GMT

The Bombay High Court allowed a man’s application seeking transfer of domestic violence proceedings from the magistrate’s court to the family court, where he has filed a divorce petition. The court said it would not be inconvenient for the wife as both are in the same city.

Justice Amit Borkar held that there is a possibility of conflicting verdicts and transfer will reduce the burden of one court.

There is the possibility of conflicting verdicts by two courts, and transfer will reduce the burden of one Court resulting in saving of judicial time; and moreover, the transfer of proceedings will not cause inconvenience to the wife as she will not have to travel outside Pune, therefore, for the aforesaid reasons, in my opinion, both miscellaneous civil applications deserve to be allowed”.

The husband claimed that primary evidence in his divorce case and his wife’s case under Protection of Women From Domestic Violence Act, 2005 (DV Act) is the same. The efficacy of cross examination would be undermined if both are conducted separately, he argued.

Advocate Abhinav Chandrachud for the wife relied on Abhijeet Prabhakar Jail v. Manisha Abhijeet Jail and submitted that the transfer would take away her statutory right to appeal under section 29 of the Act and also take away her right of speedy disposal.

It was also submitted that subsequent judgments of the High Court are "in ignorance" of Abhijeet Prabhakar Jail and hence the question should be referred to a larger bench.

Advocate Abhijeet Sarwate with Advocate Ajinkya Udane for the husband submitted that it is a consistent view of the court that the proceedings under DV Act can be transferred to the Family Court

Justice Borkar said that it has consistently been held that proceedings under the DV Act can be transferred to the family court as it can effectively try and grant the relief sought. The family courts are empowered to deal with the reliefs under sections 18 to 22 of the DV Act, the court said, while referring to the precdednt. 

In Abhijeet Prabhakar Jail, the court had rejected the husband’s transfer application on four grounds, two of which were that transferring the proceedings will take away the right of speedy justice under the DV Act and, the transfer would take away the statutory right of appeal available to the wife.

The court said that only the ratio decidendi constitutes a binding president. The court applied the inversion test to find out the ratio in Abhijeet Prabhakar Jail case.

The court said that even if the reason that transferring proceedings would take away the right of speedy justice is taken away, the single judge would still have arrived at the same decision based on the other reasons. Hence that reason does not constitute the ratio of the judgement, it added.

The court relied on Sandip Mrinmoy Chakrabarty v. Reshita Sandip Chakrabarty in which the division bench concluded that the family court appeal challenging common order arising out of proceedings under the DV Act and Family Courts Act would be maintainable.

Thus, the court said that the judgement in Abhijeet Prabhakar Jail does not hold ground in view of the division bench judgement in Sandip Mrinmoy Chakrabarty.

Since it is the consistent view of various single judges of the court that proceedings under the DV act can be transferred to the family court, the court said that it is unnecessary to refer the matter to a larger bench.

“The consistent view of various Single Judges of this Court that proceedings under the DV Act can be transferred to the Family Court constrains me to hold it is unnecessary to refer the matter to the Larger Bench because the position of law on the point appears to have been settled by the aforesaid decisions.”

Case no. – Miscellaneous Civil Application No. 498 of 2022

Case Title – X v. Y

Citation: 2023 LiveLaw (Bom) 72

Click Here To Read/Download Judgment

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