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Bombay High Court Family Law Digest 2023
LIVELAW NEWS NETWORK
11 Jan 2024 7:10 AM GMT
Wife's Refusal For DNA Test No Ground for Adverse Inference For Maintenance – Bombay High CourtCase Title: Namdeo s/o. Digambar Giri v. SeemaCitation: 2023 LiveLaw (Bom) 16The Bombay High Court dismissed a man's petition challenging the grant of maintenance to his wife, observing that a claim regarding wife's refusal during cross examination to undergo DNA test for ascertaining the paternity...
Wife's Refusal For DNA Test No Ground for Adverse Inference For Maintenance – Bombay High Court
Case Title: Namdeo s/o. Digambar Giri v. Seema
Citation: 2023 LiveLaw (Bom) 16
The Bombay High Court dismissed a man's petition challenging the grant of maintenance to his wife, observing that a claim regarding wife's refusal during cross examination to undergo DNA test for ascertaining the paternity of girl child is not sufficient to draw an adverse inference.
Justice Kishore C. Sant of the Aurangabad bench said: “Mere submission that question was asked in cross-examination to wife that whether she is ready to go for DNA test, where she has answered that she is not ready itself would not be sufficient to draw adverse inference against the wife.”
Case Title: Nisha Pradeep Pandya alias Nisha Amit Gor & Anr. v. Union of India & Ors
Citation: 2023 LiveLaw (Bom) 20
The Bombay High Court granted interim stay on transfer of pending adoption matters to the District Magistrates and directed the courts to continue with adjudication in such cases.
The division bench of Justice G. S. Patel and Justice S. G. Dige, in a writ petition challenging the Juvenile Justice (Care and Protection of Children) Amendment Act 2021 to the extent that the word 'Court' is replaced with 'District Magistrates', said that if the petition succeeds, any orders passed by the District Magistrates will immediately become vulnerable.
“While considering interim relief, we must bear in mind the primary objective which is the interest of the children and infants who are to be adopted whether these are domestic or foreign adoptions. The concerns of the adoptive parents are also involved," the court added.
Section 498A IPC | Mental Cruelty Possible Even If In-Laws Reside Separately: Bombay High Court
Case Title: Sunita Kumari and Ors. v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 32
The Bombay High Court observed that mental cruelty is an abstract concept and can be committed even if in-laws reside separately.
"The mental cruelty is an abstract concept and it is a matter of experience for a person who is subjected to cruelty … Sometimes, the taunts might be seen to be innocuous by one person, while they may not be necessarily so perceived by another person … Such being the nature of mental cruelty, it is not necessary that it must take place in the physical presence of persons and that it can be handed out even from a distant place," the court observed.
A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani of Nagpur dismissed with costs an application filed by relatives of a man seeking quashing of criminal proceedings against them instituted by his wife.
Case Title: Amit S/o. Suresh Pali v. Rita D/o. Ramavtar Pal
Citation: 2023 LiveLaw (Bom) 59
The Bombay High Court upheld the grant of maintenance to a woman, whose husband's petition for divorce was allowed by the family court on the ground of desertion and cruelty.
Dealing with the argument that prior to the decree of divorce she had refused to live with the husband without a sufficient reason and thus cannot be held to be entitled to maintenance, the court said when she had gone back to her matrimonial home but possibly saw no change in her husband's behaviour and left again, she cannot be said to have refused cohabitation without sufficient reasons under Section 125(4) of the Cr.P.C.
Justice G. A. Sanap of the Nagpur bench, while upholding the family court order, said if the wife had no desire at all to establish the cohabitation with the husband, she would not have at all agreed to join his company.
Case Title: Gajanan v. Surekha
Citation: 2023 LiveLaw (Bom) 61
Observing that a person's approaching the civil court for divorce itself shows that customary divorce does not exist in his caste, the Bombay High Court upheld an order granting maintenance to a woman under the Protection of Women from Domestic Violence Act, 2005 (DV Act).
Justice S. G. Mehare, in the husband's challenge to the award, held that:
“For claiming any customary right, the parties claiming such right are bound to prove that the customs of their caste or race still exist and the community at large is regularly observing such customs. Since the applicant approached the Civil Court for divorce, it can safely be held that the customary divorce was not in existence in their caste. Therefore, the respondent cannot claim that after the customary divorce, the domestic relationship ceased, and the applicant is not entitled to the reliefs under D.V. Act.”
Case Title: Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 67
There is no embargo on quashing a case emanating from a matrimonial dispute even after conviction when an appeal is pending, the Bombay High Court said while quashing a domestic violence case filed by the wife against her husband and in-laws. The accused in the case had been convicted by the trial court in March 2021.
A division bench of Justices Anuja Prabhudessai and RM Joshi observed that the high court's powers under Section 482 of CrPC can be exercised in post-conviction matters when an appeal is pending before a judicial forum.
Case Title: RMS v. MOP
Citation: 2023 LiveLaw (Bom) 84
A woman doesn't have the right to obstruct the sale of her estranged husband's home if he is willing to provide her a rented accommodation with similar facilities, the Bombay High Court held.
The court made the observation while refusing to interfere with an order of the Family Court permitting the husband to sell the flat for clearing an outstanding loan. The Family Court had also directed the wife to move out of the accommodation and choose a suitable two-bedroom rental flat, failing which she would be handed over Rs. 50,000 per month.
The court observed that such an order takes care of the rights of both parties and the wife can't be heard to say that she would obstruct sale merely because she is habituated to the flat.
Case Title: Mayur Vaijanath Tawde & Anr. v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 123
The Bombay High Court upheld the eviction of two individuals who allegedly mistreated their stepmother from their deceased father's house observing that the elderly stepmother needs comfort and peace in the evening of her life.
Justice RG Avachat upheld the order of the tribunal constituted under section 7 of the Maintenance And Welfare of Parents And Senior Citizens Act, 2007 directing the petitioners to vacate the premises.
Case Title: Terezinha Martins David v. Miguel Guarda Rosario Martins and Ors.
Citation: 2023 LiveLaw (Bom) 149
The Goa bench of Bombay High Court held that daughter's right to family property does not extinguish merely because she was provided dowry at her marriage.
Justice MS Sonak quashed a Transfer Deed made by brothers transferring family property without the consent of the appellant sister.
Case Title: Sunil and Ors. v. Jayashri
Citation: 2023 LiveLaw (Bom) 163
When no domestic violence is found in a domestic violence case, maintenance cannot be awarded to wife on the ground that husband refused and neglected to maintain her, the Bombay High Court held.
Justice SG Mehare of Aurangabad bench observed that the concept of “refusal and neglect to maintain wife” given in section 125 CrPC does not exist in the Protection of Women From Domestic Violence Act, 2005 (DV Act).
The court held that granting maintenance to wife in a domestic violence case based on concept of refusal and neglect to maintain is beyond the jurisdiction of the Additional Sessions Judge.
Citation: 2023 LiveLaw (Bom) 165
The Bombay High Court ruled that the wife's reputation is lowered by the mere fact that husband has made allegations against her in a newspaper, whether or not the news report is actually defamatory.
A division bench of Justice RD Dhanuka and Justice MM Sathaye was upheld family court's decree granting divorce to the wife and held that the husband's overall behaviour constitutes mental cruelty.
The court further noted that the appellant filed criminal complaints not only against his mother-in-law before the Anti-Corruption Bureau but also against the investigating officer, the prosecutor who is a relative of the wife, as well as his wife's current lawyer.
The court opined that such a person is difficult to deal with and would certainly cause mental harassment.
Case Title: Vithal Manik Khatri v. Sagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr.
Citation: 2023 LiveLaw (Bom) 175
The Bombay High Court held that a transgender woman who has undergone sex re-assignment surgery can be an “aggrieved person” under the Domestic Violence Act and has the right to seek interim maintenance in a domestic violence case.
Justice Amit Borkar dismissed a man's petition challenging maintenance awarded to his wife, a trans-woman, observing that the term 'aggrieved person' under section 2(a) of the Protection of Women from Domestic Violence Act, 2005 has to be given a broad interpretation as the purpose of the Act is to protect women from domestic violence.
Citation: 2023 LiveLaw (Bom) 178
The Bombay High Court held that a child can be ordered to undergo paternity test only in exceptional cases and father's attempt to avoid paying maintenance to son by seeking DNA testing should be thwarted at the very inception.
Justice GA Sanap of the Nagpur bench dismissed a man's plea seeking paternity test of a child born during cohabitation with his wife. The man did not allege infidelity on his wife's part.
Children Not Property, Parents Don't Have Absolute Rights Over Their Destiny: Bombay High Court
Case Title: Ashu Dutt v. Aneesha Dutt
Citation: 2023 LiveLaw (Bom) 189
“In India, matrimonial disputes constitute the most bitterly fought adversarial litigations and a stage comes when warring couples stop seeing reasons…In such cases, court's must exercise the parent patriae jurisdiction,” the Bombay High Court observed while making visitation arrangements in a bitterly fought, long drawn matrimonial dispute.
A division bench comprising Justices RD Dhanuka and Gauri Godse added that parents don't have an absolute right over their child's destiny and the most important consideration would be a child's welfare and not the parent's legal rights.
Single Working Woman Can Adopt Child Under Juvenile Justice Act: Bombay High Court
Case Title: Shabnamjahan & Ors. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 192
The Bombay High Court has set aside an order disallowing a woman from adopting her sister's child on the ground that she was a single working woman and wouldn't be able to give personal attention to the child. The judge's views displayed a medieval conservative mindset on family, the High Court said.
Justice Gauri Godse observed that a divorcee or a single parent was eligible to adopt as per the Juvenile Justice (Care and Protection of Children) Act, 2015 and the district court's job was merely to ascertain, if all necessary criteria were fulfilled.
Case Title: Mansi Bhavin Dharani v. Bhavin Jagdish Dharani
Citation: 2023 LiveLaw (Bom) 194
The Bombay High Court held that a family court cannot pass a divorce decree on admission assuming that the marriage is dissolved in the hearts and minds of the parties when the parties have not led any evidence or withdrawn their allegations against each other.
A division bench of Justice RD Dhanuka and Justice Gauri Godse set aside a divorce decree on admission passed by the family court.
Widow Not Liable To Maintain In-Laws Under Section 125 CrPC: Bombay High Court
Case Title: Shobha w/o Sanjay Tidke v. Kishanrao S/o. Ramrao Tidke and Anr.
Citation: 2023 LiveLaw (Bom) 202
The Bombay High Court held that parents-in-law are not entitled to maintenance from their widowed daughter-in-law under section 125 of CrPC.
Justice Kishore C Sant sitting at Aurangabad noted that the list of relatives entitled to claim maintenance under the section is exhaustive and does not include father-in-law and mother-in-law.
Citation: 2023 LiveLaw (Bom) 203
The Bombay High Court set aside a custody order citing the trial court's failure to interview the child to ascertain his wish.
Justice Urmila Joshi Phalke of the Nagpur bench sent the case back to the trial court for fresh consideration observing that the trial court should have conducted an in-camera interview of the child before deciding the matter.
The trial court was bound to make thorough enquiry to ascertain the welfare of the child, the court held.
Bombay High Court Refuses Relief To Divorced Woman Who Remarried During Appeal Period
Case Title: Akash Kanwarlal Kamal v. Himani Akash Kamal
Citation: 2023 LiveLaw (Bom) 205
The Bombay High Court rejected a woman's interim application seeking dismissal of her husband's appeal against their divorce decree on the ground that she had already married someone else.
The court observed that the “Family Court Appeal filed by the husband within the appeal period (of 90 days) would not be rendered infructuous upon the Applicant (wife) having contracted second marriage and that also during the appeal period.”
Indian Court Can Entertain Complaint Against Domestic Violence Committed Abroad: Bombay High Court
Case Title: S v. H
Citation: 2023 LiveLaw (Bom) 207
The Bombay High Court held that judicial magistrate in India can take cognizance of domestic violence committed in foreign soil under the Protection of Women From Domestic Violence Act, 2005 (DV Act).
Justice GA Sanap of the Nagpur bench observed that the Act is a social beneficial legislation and the lawmakers worded section 27 of the Act keeping in mind possible domestic violence outside India.
Citation: 2023 LiveLaw (Bom) 240
Child custody orders can be altered and moulded at various stages of a child's life keeping in mind his welfare, the Bombay High Court observed.
A single bench of Justice Neela Gokhale allowed a man to re-approach the Family Court to alter the mutual consent divorce terms with his ex-wife regarding child access, owing to the wife's remarriage.
HAMA | Daughter Cannot Continue Mother's Maintenance Claim After Her Death: Bombay High Court
Case Title: Jayshree @ Pushpa v. Satyendra s/o Shivram Jindam
Citation: 2023 LiveLaw (Bom) 359
The Bombay High Court held that daughter cannot continue her mother's claim of maintenance from husband after her death, as the right to claim maintenance under the Hindu Adoption and Maintenance Act (HAMA) is an individual right against another person.
A division bench of Justice Ravindra V Ghuge and Justice YG Khobragade sitting at Aurangabad refused to allow married daughter of a deceased woman to continue claim for enhancement of maintenance awarded to her mother.
“right to claim maintenance under the personal laws viz., Hindu Adoption and Maintenance Act, Muslim Law, Christen Law is in the personal nature. It is an individual privilege of a person who is governed under the Personal Law…right of maintenance of wife against her husband is in personam and not in rem, therefore, the right to sue does not survive in favour of the applicant, who is married daughter of the deceased Appellant and Respondent”, the court held.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 370
The Bombay High Court directed its Registry to place before an appropriate bench a clutch of petitions to decide a common legal issue – whether family courts are competent to hear domestic violence cases.
“A common question involved is whether the Family Court established under the Family Courts Act, 1984 is competent to conduct the proceedings and give the relief under the Protection of Women from Domestic Violence Act, 2005 and whether the proceedings under the DV Act can be transferred to the Family Court,” the court observed.
Justice Sarang Kotwal said this question has arisen in a number of pleas pending before his bench and there are conflicting decisions of various single judges on the issue.
Citation: 2023 LiveLaw (Bom) 375
Observing that paternal grandmother or paternal aunt cannot be a substitute to mother during the phase of growth of a girl child, the Bombay High Court held that custody of a girl about to attain the age of puberty is preferred with her mother over her father.
Justice Sharmila U Deshmukh upheld a Family Court's order in a divorce case granting interim custody of an 8-year-old girl to her mother, who is also a doctor, and visitation rights to the father.
“the girl child aged about 8 years would be undergoing hormonal changes and also physical changes and as such much care has to be taken during this phase of growth of the girl child and the paternal grand mother or the paternal aunt cannot be a substitute to the mother who is also a qualified doctor. During this phase of life, the girl child requires care and attention of a women who would be better equipped to understand the process of transformation which the girl child will undergo and as such, the mother at this stage is preferred against the father”, the court held.
Citation: 2023 LiveLaw (Bom) 381
The Bombay High Court quashed a civil court's order directing a couple to hand over custody of a two-year-old adopted child to his biological parents and directed the civil court to decide their suit seeing a declaration that the adoption is valid, within six months.
Justice Sharmila Deshmukh held that the trial court failed to conduct a comprehensive inquiry into the actual "giving and taking" of the child in adoption. The court highlighted that evidence needed to be presented to establish the actual giving and taking of the child with the intent to transfer the child from one family to another.
Underlining the sensitivity of the matter, the court said that there will be no extension of time for the final adjudication of the suit, and until then the child, who has been with the adoptive parents since he was two days old, will continue to remain with them.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 416
Observing that a physically disabled person is not incapable of giving threats, the Bombay High Court refused to quash a domestic violence case against a disabled woman accused of abusing and threatening her daughter-in-law.
Justice RM Joshi of the Aurangabad bench observed that whether any domestic violence was caused is a matter of trial, but prima facie the complainant was subjected to domestic violence.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 417
Noting a lacuna in the law for mentally retarded persons, the Bombay High Court extended the scope of Section 7 of the Guardians and Wards Act 1980 to allow guardianship of an adult suffering from mental retardation.
Justice Riyaz Chagla observed that provisions of the Mental Health Act, both the repealed and the existing Acts, did not cover mental retardation under the definition of mental illness.
The court noted the existing Mental Healthcare Act, 2017 unlike the repealed Act doesn't have a provision for the District Court to appoint a suitable person as Guardian of a person suffering from mental illness and incapable of taking care of himself.
“Thus, in my view the only remedy available in such cases is for the Petitioner to apply under the Guardians and Wards Act, 1890 for the Petitioner to be appointed as Guardian of the person, despite he/she being a major, but suffering from mental retardation,” the bench said.
Case Title: Ashwin Bharat Khater v. Urvashi Bharat Khater
Citation: 2023 LiveLaw (Bom) 430
Observing that the denial of access to one's own house amounts to denial of basic amenities, the Bombay High Court upheld the Senior Citizens Maintenance Tribunal's order revoking two gift deeds executed by an elderly woman in favour of her son and directed the son and daughter-in-law to vacate the subject property.
Justice Sandeep V Marne held so upon finding that the son had failed to perform his duty to provide basic amenities and physical needs to his widowed mother.
“The Gifts were executed out of natural love and affection towards son, which was the only possible consideration for execution thereof. Inbuilt in such love and affection is the duty of the son to provide basic amenities and physical needs to the widowed mother. The events that have occurred post execution of gift deeds so indicate that such love and affection between the Mother and son no longer exists. Along with love and affection, the son has perhaps failed to perform the duty of providing the basic amenities and physical needs to his mother. It was never son's property. He had no right to seek gift thereof”, the court observed.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 431
The Bombay High Court allowed a plea by the children of a former Attorney General and declared them as guardians of one of their siblings under Section 7 of the Guardian and Wards Act, 1890. The section was originally meant for guardianship of minors.
Justice Riyaz Chagla widened the scope of Section 7 of the Act to allow guardianship of an adult suffering from a mental handicap noting a lacuna in the existing Mental Healthcare Act.
Citation: 2023 LiveLaw (Bom) 436
A family's social strata would be a relevant consideration in deciding divorce cases on grounds of “cruelty”, the Bombay High Court held.
Two years of marriage and 14 years of separation later the High Court granted a businessman divorce from his wife on grounds of 'cruelty' but upheld maintenance granted to the woman.
A division bench of Justices Nitin Sambre and Sharmila Deshmukh observed,
“While considering the conduct of the Respondent in context of 'cruelty' as contemplated under the provisions of Section 13 (1)(i-a) of the Hindu Marriage Act, 1955, the strata of the society to which the Petitioner belongs will also be relevant.”
Citation: 2023 LiveLaw (Bom) 438
The Bombay High Court granted the custody of a three-year-old boy, who is a US citizen by birth, to his United States-based father seeking the return of his child to the US in a habeas corpus writ petition.
A division bench of Justice Revati Mohite Dere and Justice Gauri Godse held that the mother's unilateral refusal to return the child to US without a valid or justifiable reason amounted to illegally detaining the child.
Citation: 2023 LiveLaw (Bom) 457
Spouse suffering from epilepsy cannot be ground for divorce under Section 13(1)(iii) of the Hindu Marriage Act, the Bombay High Court observed and upheld a family court order refusing divorce to a man.
A division bench at Nagpur comprising Justices Vinay Joshi and Valmiki Menezes observed,
"…the condition of “epilepsy” is neither an incurable disease nor can it be considered a mental disorder or a psychopathic disorder, for making a ground under Section 13(1)(iii) of the Hindu Marriage Act."
The court further said medical evidence doesn't support the husband's stand that epilepsy would be an impediment to the spouses living together.
Citation: 2023 LiveLaw (Bom) 481
The Bombay High Court appointed the paternal aunt of a four-year-old boy as his legal guardian while allowing his parents to visit him frequently and occasionally take him for outings with the condition that the child returns to his aunt's custody on the same day.
Justice RI Chagla observed that the child is extremely attached to his aunt and took note of the psychological issues faced by his mother as well as the aggressive behaviour of his father while granting custody of the child to his aunt.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 513
The Bombay High Court held that a father cannot be held guilty of kidnapping for taking his minor child away from the mother unless there is an order of a competent court preventing him from taking custody of the child.
A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur quashed an FIR registered under Sections 363 of the IPC by the biological mother of the child, accusing the father of forcibly taking away their 3-year-old son.
“The father of a child will not come within the scope of section of 361 of the IPC, even if he takes away the child from the keeping of the mother, she may be a lawful guardian as against any other except the father or any other person who has been appointed as a legal guardian by virtue of an order of the Competent Court. So long there is no divestment of the rights of the guardianship of a father, he cannot be guilty of an offence under Section 361 of the IPC”, the court held.
Bombay High Court Dismisses 20-Year-Old Testamentary Suit In Favor Of Actress Pooja Bedi, Her Aunts
Case Title: Shonali Kedar Dighe v. Ashita Tham and Ors.
Citation: 2023 LiveLaw (Bom) 554
The Bombay High Court dismissed a 20-year-old testamentary suit regarding the estate of actor Pooja Bedi's uncle -Bipin Gupta - after Bedi and her aunts proved that the impugned 'Will,' bequeathing everything to a trust, was a “sham and bogus.”
Justice Milind Jadhav dismissed a petition filed by Vasant Sardal seeking to execute Gupta's alleged Will dated September 4, 2003. Sardal was one of the two executors of the Will and a co- trustee of the organisation that stood to gain from the Will.
However, the property will now be distributed amongst Gupta's legal heirs: his two sisters, Ashita Tham and Monica Uberoi & to his niece, Bedi, on behalf of her mother.
The estate includes tenancy rights in a flat in Firdaus Building, an Art Deco structure, a flat in the Neel Tarang building in Mahim, a two-acre plot in Panchgani, bank balances, investments in shares and bonds, and valuables in his possession.
Court held that the testator's treating doctor neither made an attesting witness nor did he testify to the soundness of the testator. It was an obscure bequest to a Charity controlled by complete strangers, the Court observed, Court was of the view that the Will appeared disjunctive as, despite half of page 2 being blank, the Will was only executed on page 3.
Lastly, the court said it was unnatural for Gupta to have excluded his sisters from the will.
Accordingly, the HC directed the police to transfer all movable assets to Bedi and her aunts after taking necessary undertakings from them.
Citation: 2023 LiveLaw (Bom) 571
The Bombay High Court dismissed a habeas corpus petition filed by a 41-year-old UK citizen seeking custody of his 3-year-old daughter from his estranged wife, an Indian citizen.
A division bench of Justice Revati Mohite-Dere and Justice Gauri Godse, while rejecting the plea, emphasized that it would not be safe to hand over custody to the father due to his reported anger issues and past violent behaviour.
“the child is a girl of a tender age of three and half years and thus requires the care and affection of her mother. Considering the past conduct of the petitioner having anger issues, it will not be safe to hand over custody of the child to him”, the court held.
Case Title: Alka Bhausaheb Bhad v. Bhausaheb Ramrao Bhad
Citation: 2023 LiveLaw (Bom) 589
A woman who married a man under the misrepresentation that he was divorced would be treated as his 'wife' under Section 125 CrPC, and she is entitled to maintenance, the Bombay High Court held.
Justice Rajesh Patil ruled "that respondent cannot be allowed to deny the maintenance claim to the Petitioner, taking advantage of his own wrong. I am of the opinion as held in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit reported in (1999) at least for the purpose of Section 125 of CrPC, Petitioner would be treated as the 'wife' of the respondent."
According to the judgement, if the claimant woman can establish that she and the respondent have lived together as husband and wife, the court can presume them to be legally married spouses. Especially since the standard of proof to claim maintenance is more relaxed than what would be required in trials under IPC.
Domestic Violence Case Can Be Transferred From Magistrate To Family Court: Bombay High Court
Case Title: A v. B
Citation: 2023 LiveLaw (Bom) 620
The Bombay High Court held that an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) before a Magistrate seeking reliefs under Sections 18 to 22 can be transferred to a Family Court under Section 24 of the Code of Civil Procedure, 1908.
Section 12 under the DV Act empowers an aggrieved party or any person on their behalf to file an application to the Magistrate seeking protection orders, residence, monetary reliefs, custody and compensation under Sections 18-22 of the Act.
Justice Kamal Katha held the reliefs under the above Sections are meant to redress the breach of civil rights and even the proceedings in Family Courts are civil in nature.
"In my view, the High Court would have power to transfer the case from the Magistrate to the Family Court whether or not it has jurisdiction to try it to meet the ends of justice, to convenience the parties and more importantly to lead evidence before one Court, specially when the issues may be common, and between the same parties, to save both energy and expense, to save the precious time of Court and prevent conflicting views and multiplicity of proceedings.”
Therefore, the Family Court has the jurisdiction to entertain and decide reliefs sought under Sections 18 to 22 of the DV Act by virtue of Section 7(2) and Section 26 of the DV Act read with the provisions of the Family Courts Act, 1984, the court held.
