A.V. Rojer vs J. Janet Sudha

G. Rajasuria, J.—This petition has been filed to call for the records in C.C. No. 26 of 2007 on the file of the learned Judicial Magistrate No.

II, Nagercoil, Kanyakumari District and quash the same.

The facts giving rise to the filing of this petition as stood exposited from the records could be portrayed thus:

The respondent wife herein filed a petition before the learned Judicial Magistrate No. II, Nagercoil and it was taken up on file in C.C. No. 26 of

2007 as against the petitioner.

The gist and kernel of the averments in the petition is that it was filed so as to invoke Sections 12, 18, 20, 21, 22 and 23 of the Protection of

Women from Domestic Violence Act, 2005, Act No. 43 of 2005. The wife happened to be the aggrieved person before the Magistrate who

would air her grievance to the effect that the petitioner herein being the husband neglected her and the children without maintaining them. The fact

remains that there are proceedings pending before the District Court for taking custody of the children at the instance of the petitioner so to say, the

husband and the M.C proceeding also is pending before the Magistrate at the instance of the respondent herein seeking maintenance in favour of

the wife and the children.

During arguments, it also transpired that the Magistrate concerned posted the matter for conciliation and the Protection Officer tried to

conciliate, but ended in a fiasco. Thereupon, the Protection Officer submitted the report dated 12.02.2007 to the effect that the allegations made

by the wife are true. The husband also filed his counter before the Magistrate.

At this juncture, the husband being the petitioner herein has chosen to invoke the jurisdiction of this Court u/s 482 Cr.P.C, so as to get quashed

the entire proceedings pending before the Magistrate under the Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2005.

The main grievance of the petitioner as aired by the learned Counsel for the petitioner is that when before the competent Courts, the litigations

are pending relating to the custody of the children and for maintenance, the Magistrate under the Protection of Women from Domestic Violence

Act, 2005, Act No. 43 of 2005, would have no jurisdiction to entertain such a petition and proceed with the matter, for which the learned Counsel

for the respondent would draw the attention of this Court to Sections 26 and 36 of the Act and they are extracted hereunder for ready reference:

26.Relief in other suits and legal proceedings.- (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal

proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was

initiated before or after the commencement of this Act.

(2) Any relief referred to in Sub-section (1) 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.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to

inform the Magistrate of the grant of such relief.

This clause provides that any relief available under the proposed legislation may also be sought in any legal proceeding before a civil Court, family

Court or a criminal Court and that any relief which may be granted under the proposed legislation may be sought for in addition to and along with

reliefs sought for in a suit or legal proceeding before a civil or criminal Court. Sub-clause (3) lays down that the aggrieved person shall be bound to

inform the Magistrate of the reliefs obtained by her in any proceeding other than proceedings under the proposed legislation.

Act not in derogation of any other law.- The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other

law, for the time being in force.

This clause stipulates that the provisions of the proposed legislation shall be in addition to and not in derogation of the provisions of any other law.

The mere perusal of those provisions would show that the jurisdiction exercised by the Magistrate under the Special Enactment namely the

Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2005, is not to the exclusion of ordinary jurisdiction exercisable by the

regular Courts.

The legislators thought fit to specifically highlight u/s 36 that this special enactment is not in derogation of other laws for the time being in force.

Over and above that, in Section 26 of the Act, the clause ""whether such proceeding was initiated before or after the commencement of this Act"" is

worthy of being referred to. This is a fitting and suitable answer as against the contention that when proceedings are pending before the competent

Courts already even as on the commencement of the Act, there could be fresh proceedings initiated before the Magistrate Court under the said

special enactment. Once again, to the risk of repetition, I would like to make it clear that the legislators in their wisdom thought fit that aggrieved

women should be given more option in getting speedy remedy as trying to get remedy as per the general law is a time consuming one. When such

is the position, applying Heydon''s rule / Mischief rule / Golden rule, the provisions of the Act should be interpreted. The Heydon''s rule could be

summarised as under:

1st - What was the common law before the making of the Act,

2nd - What was the mischief and defect for which the common law did not provide,

3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and

4th - The true reason of the remedy;

In Smith v. Hughes reported in (1960) 1 W.L.R 830, [in Maxwell on The Interpretation of Statutes - Twelfth Editiion by P.St.J.Langan] the

Golden Rule is further explained.

The aggrieved women should not be made to run from pillar to post by wasting time and energy to get justice and by way of providing a quick

remedy, the Magistrate is given with such a jurisdiction under the Special enactment. While this Court interpreting the provisions of such special

enactment should not simply lay down as a rule that when the proceedings are pending before competent Court, the Magistrate would be debarred

from entertaining similar grievances at the instance of the aggrieved party. Hence, in this view of the matter, the broad proposition which is sought

to be pressed into service by the petitioner, cannot be countenanced and upheld.

The learned Counsel for the petitioner would raise one other point based on the definition ""domestic violence"" as found envisaged in Section 3

of the special enactment. The mere perusal of it, would show that it has wider scope. I would even put it that A to Z type of injuries either physical

or mental are as found incorporated in Section 3 of the Act, with the intention to give speedy protection to women zealously.

Here, the learned Counsel for the respondent would draw the attention of this Court to the paragraph No. 13 of the petition filed before the

learned Magistrate by her and highlight that on 10.12.2006 so to say after the commencement of this Act, there was violence inflicted on the wife

by the husband. When such is the position, ex facie and prima facie, I cannot hold that there is no ground at all to invoke the Act. However, I do

not hereby give any final verdict on that factual issues. It is open for the petitioner herein to raise the plea that the averments in the petition do not

attract the definition ""domestic violence"" u/s 3 of the of the Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2005, and on

such raising of the issue, the Magistrate shall hear both sides and give his verdict as a preliminary issue on that point.

With the above observation, this petition is closed. Consequently, connected M.P.Nos. 1 and 2 of 2007 are also closed.