11 Aug 2023 3:30 AM GMT
The Amicus Curiae appointed by the Kerala High Court in a case seeking reliefs under the Protection of Women from Domestic Violence Act, 2005 (hereinafter, 'DV Act, 2005'), Advocate Ashok Kini M., has submitted that an original petition seeking reliefs under Sections18-22 of the Domestic Violence Act is maintainable before the Family Court. Last week, a Division Bench comprising Justice...
The Amicus Curiae appointed by the Kerala High Court in a case seeking reliefs under the Protection of Women from Domestic Violence Act, 2005 (hereinafter, 'DV Act, 2005'), Advocate Ashok Kini M., has submitted that an original petition seeking reliefs under Sections18-22 of the Domestic Violence Act is maintainable before the Family Court.
Last week, a Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas had appointed the amicus to aid the Court in ascertaining whether the Family Court would have jurisdiction to entertain such a petition.
The matter pertains to the filing of original petitions for divorce by the petitioner-husband and the respondent-wife before the Family Courts at Alappuzha and Ernakulam, respectively, following the breakdown of marital relations of the couple. The respondent had also filed separate petitions under the Protection of Women from Domestic Violence Act, 2005, the Guardians and Wards Act, and for maintenance, before the Family Court, Ernakulam.
The petitioner-husband contended in all these petitions that the Family Court at Ernakulam did not have the jurisdiction. However, petitioner's objections were eventually dismissed. The petitioner subsequently approached the High Court averring that the only court vested with the jurisdiction to entertain a petition under the provisions of the Domestic Violence Act is the Judicial Magistrate as per Section 12 of the enactment.
As per Section 12 of the DV Act, 2005, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs that are stipulated under Sections 18-22 of the statute. Under the said provisions, the Magistrate is empowered to pass a Protection Order (Section 18), Residence Order (Section 19), Custody Order (Section 21), Compensation Order (Section 22), and monetary reliefs (Section 20).
The Amicus Curiae in his report submits that although the proceedings are before the Magistrate, the reliefs (apart from the punishment) under the Act are of civil nature. On a conjoint reading of Section 9 CPC (jurisdiction of civil courts) and Section 36 of the DV Act (that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force), Advocate Kini opined that Section 9 CPC enables a civil court to grant reliefs which are of civil nature including the reliefs envisaged under the Domestic Violence Act.
The Counsel said the reliefs which can be claimed under Section 18-22 of the DV Act can fall in any of the categories envisaged under Section 7 of the Family Courts Act in respect of the jurisdiction exercised by Family Courts.
"...the reliefs that are envisaged under the Domestic Violence Act can be claimed before the Family Court also if it falls under any of the above categories, even without invoking Section 26 DV Act. For instance, if a wife files an Original Petition seeking an injunction against husband by restraining him from committing any act of domestic violence, that petition will be maintainable since the relief sought can be brought into one of the categories mentioned above in Section 7 Family Courts Act. Same is the case of a petition seeking maintenance or a custody order," the report states.
The Amicus Curiae submits that the reliefs envisaged under Section 18 and 19 of DV Act are nothing but an order of injunction that can be granted by a Family Court subject to stipulations in Section 7 of the Family Courts Act; that under Sections 20 and 21 of the DV Act can be connected to (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor, and goes on to state that compensation can also be awarded by the Family Court as per Section 22 of the DV Act.
Advocate Kini further submits that the Apex Court has held in precedents that Section 26 of the DV Act ought to be interpreted in a manner to effectuate the purpose and object of the statute.
"Any relief available under sections 18- 22 can also be sought in any legal proceeding, before a civil court, family court or a criminal court. Only condition is that such legal proceedings must be the one that is affecting the aggrieved person and the respondent. This means that Section 26 gives or confers jurisdiction to Family Court to grant relief under Sections 18-22 of the Domestic Violence Act. Also, such relief may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. The legislature has carefully used both terms ‘in addition to’ and ‘along with’ and that will not be without any reason," the report states.
The counsel also relies upon the decision of Apex Court in Satish Chander Ahuja v. Sneha Ahuja (2020), wherein it had been laid down that,
"On conjoint reading of Sections 12(2) ('Application of Magistrate'), 17 ('Right to reside in a shared household'), 19 ('Residence orders'), 20 ('Monetary reliefs'), 22 ('Compensation orders'), 23 ('Power to grant interim and ex parte orders'), 25 ('Duration of orders'), 26 ('Relief in other suits and legal proceedings') and 28 ('Procedure')of the D.V. Act, it can safely be said that the proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/ family court for the reliefs under the Hindu Adoption and Maintenance Act. In the event, the suit is filed by the wife of the plaintiff against the defendant for permanent injection and also praying for reliefs under Section 19 [except Section 19(1)(b)]. The suit be fully maintainable and the prayers in the suit can be covered by the reliefs as contemplated by Section 19 read with Section 26 of the Act, 2005. …The Civil Court in such a suit can consider the issues and may grant relief if the plaintiff is able to prove her case".
As per the Amicus, the above decision thus settles the issue in the case at hand.
The matter is listed for consideration on September 4.
Case Title: George Varghese v. Treesa Sebastian & Ors.
Case Number: OP (FC) NO. 539 OF 2022