Sudhannaya vs Umashankar Valsan

Pius C. Kuriakose, J.—Under challenge in this Writ Petition filed under Article 227 of the constitution by the petitioner who is the wife of the respondent is Ext. P4 common order passed by the Family Court in I.A. No. 961/07 in OP 751/07, I.A. No. 178/08 in I.A. 961/07 in OP 751/07. Apart from the prayer to set aside Ex. P4, the following prayers are also sought in this Writ Petition:

(a) To declare that a person will be entitled to seek relief under Sections 18 and 19 of the D.V. Act from the Family Court also by invoking Section 26 of the D.V. Act.

(b) To declare that I.A. 961/07 and I.A. No. 178/07 in IA No. 961/07 filed in OP 75/07 before the Family Court, Kannur are entitled to be decided on merit by the Family Court.

(c) To issue a writ of prohibition restraining the Family Court, Kannur from proceeding further with OP No. 75/2007 before and without deciding IA 961/2007 and IA 78/2007 on merit.

(d) To issue a writ of mandamus directing the Family Court to dispose of IA''s on merit within a time frame to be fixed by this Hon''ble Court.

(e) To issue such other orders, directions or writs as may be prayed for and that this Hon''ble Court may deem fit on the facts and circumstances of the case.

We find that the petitioner filed OP 751/07 before the Family Court, Kannur u/s 18(2) of the Hindu Adoptions and Maintenance Act, 1956 for past maintenance. LA. 961/07 was filed by her u/s 26(1) and (2) of the Protection of Women from Domestic Violence Act, 2005. The prayer in the above IA was for relief under Sections 18 and 19 of the D.V. Act, 2005 i.e. a residence order to reside in the shared house and a protection order restraining the respondent from committing Domestic Violence. Ex. P1 produced alongwith the OP is copy of the Original Petition. Ex. P2 is copy of the affidavit filed by the petitioner in support of the IA 961/07, IA 178/08 was filed as an IA in IA. 961/07 u/s 18(e) of the D.V. Act for protection order and for prohibiting alienation of the house situated in Bangalore. Ex. P3 is Copy of the affidavit in support of the IA 178/08. By Ex. P4 the learned Family Court dismissed both the IAs taking the view that the Family Court, Kannur does not have jurisdiction to pass an interim order u/s 18 and 19 of the D.V. Act, 2005. The petitioner points out that she had filed a petition u/s 12 of the D.V. Act for relief under Sections 18, 19, 20, 22 and 23(2) of the D.V. Act before the Additional C.J.M''s Court, Thalassery as M.C. 51/07. Petitioner filed Tr. P.(Cri.). 80/07 seeking transfer of the above M.C. Ex. P5 is copy of the order in the above Transfer Petition which was dismissed by the High Court mainly on the reason that in the light of the decision in M.A. Mony Vs. M.P. Leelamma and Another, ., the prayer to transfer a case from the Criminal Court to Family Court may not be maintainable, after recording the submissions of the counsel for the petitioner that the Family Court has the requisite legal competence u/s 26 of the D.V. Act to grant relief which are grantable under the D.V. Act and petitioner intends to seek relief from the Family Court. The petitioner submits that in the light of the observation in Ex. P5 that the petitioner is at liberty to seek relief from the Family Court u/s 26 of the D.V. Act if so advised. The petitioner filed Ext. P6 affidavit before the C.J.M''s Court with a prayer to close or dismiss the proceeding before the C.J.M''s Court as not pressed without prejudice to the petitioner''s right to file similar petition before the Family Court.

According to the petitioner Ext. P4 is an illegal order and has to be corrected by this Court under Article 227. The respondent has filed a counter affidavit wherein it is contended that the Family Court, Kannur is completely justified in passing Ex. P4 common order stating that the petition filed under Sections 18 and 19 of the D.V. Act could be considered only at the final stage. According to the respondent a careful reading of Section 26 of the D.V. Act would make it clear that Sections 18 and 19 can be claimed before the Family Court in the proceedings pending in the final stage only. It is pointed out that as per Section 29 of the D.V. Act any order passed under the provisions of the D.V. Act are appealable. However, if a petition under the D.V. Act is filed before the Family Court no appeal provided transfer u/s 29 can be filed before the Sessions Court. Hence, the very purpose of the statute will be defeated and it is pointed out that the case pending before the C.J.M.''s Court was withdrawn by the petitioner by suppressing the fact that at the time of dismissing the M.C pending before the CJM, there was no proceeding before the Family Court, Kannur. The act of the petitioner is clear abuse of process of law. It is then contended that the petitioner has no right over the respondent''s property and the petitioner is paying maintenance amount to the respondent without default. The claim of the petitioner in Ex. P1 is barred by limitation and Ex. P1 has been filed only with the intention of harassing the respondent.

We have heard the submissions of Sri. Kaleeswaram Raj, the learned counsel for the petitioner and those of Sri. S. Rajeev, the learned counsel for the respondent. Our attention was drawn by Sri. Kaleeswaram Raj to the judgment of this Court in Sathyabhama v. Ramachandran 1997(2) KLT 503 and submitted that while disposing of an application u/s 125 Cr. P.C. the Family Court will function as a criminal court. Sri. Raj referred to certain passages in Anish Antony Thimothy, Dhaleela Thimothy and M.A. Thimothy Vs. Neetha and State of Kerala, , a decision which takes the view that proceedings pending before the magisterial court under the provisions of DV Act cannot be transferred to Family Court where proceedings for divorce are pending. Sri. Raj also referred to the relevant statutory provisions under Sections 12, 18, 19, 20, 22 and 23(2) of the DV Act and more importantly Sections 26(1) and 26(2) of the same statute. Our attention was drawn by Sri. Raj also to the decision of the Bombay High Court in Mrs. Pramodini Vijay Fernandes Vs. Mr. Vijay Fernandes, , of the Madras High Court in M. Palani Vs. Meenakshi, and Natchathiram Vs. Vanitha, S. Muthuramalingam and S. Krishnan

Sri. S. Rajeev, the learned counsel for the respondent per contra would support the impugned order for the various reasons stated by the learned Family Court. Strong reliance was placed by Sri. Rajeev on judgment of the Orissa High Court in Brundaban Patra and Another Vs. Rajalaxmi Patra, and also on the judgment of this Court in Anish Antony Thimothy, Dhaleela Thimothy and M.A. Thimothy Vs. Neetha and State of Kerala, .

We have given our anxious consideration to the submissions addressed at the Bar and also to the relevant statutory provisions.

Section 26 of the Protection of Women From Domestic Violence Act & Rules provides as follows:

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 alongwith 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.

Section 26(1) as quoted above, shows that all reliefs available under Sections 18, 19, 20, 21 and 22 of the Act can be had in proceedings before the Family Court.

On analysing Sections 18 to 22 of the D.V. Act, what we find is that Section 18 provides for passage of protection orders in favour of aggrieved person. Protection orders are contemplated on the Magistrate being prima facie satisfied that the Domestic Violence has taken place or is likely to take place against the aggrieved person. It is not difficult to find that interim protection orders are also contemplated u/s 18 of the D.V. Act.

Section 19 provides for residence orders, Section 19(1) reads as follows:

Residence orders: (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order:

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household:

(b) directing the respondent to remove himself from the shared household:

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leaves of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

The learned Judge of the Family Court under the impugned order has taken the view that Section 26 of the Act enables the Family Court to grant relief under Sections 18 and 19 of the D.V. Act only in the final stage of the proceedings. One of the reasons stated by the learned Family Court in support of that view is that Section 23 of the D.V. Act, which deals with the power to grant interim and ex parte orders, does not make mention of Section 26 of the D.V. Act though Sections 18, 19, 20, 21 and 22 of the Act are mentioned. Yet another reason stated by the learned Judge is that if it is assumed that the power under Sections 18 and 19 of the Act is conceded to the Family Court, there will be confusion regarding the appeal u/s 29 as well as regarding the punishment clause u/s 31 of the Act and also regarding the certain formalities like functions of the protection officer, etc. In that view of the matter, the learned Family Court held that the application is not maintainable and dismissed the same.

We are afraid that the approach of the learned Family Court has been too technical to receive acceptance at our hands. The legislative intendment underlying the D.V. Act and the Family Courts Act, both of which are social welfare legislations, has been completely lost sight of by the learned Family Court. In our opinion Section 26 of the D.V. Act gives option to the aggrieved person, the beneficiary of the legislations, to approach either the Magistrate u/s 12 of the Act or the Family Court if the person needs the reliefs contemplated under Sections 18, 19, 20, 21 and 22 of the D.V. Act. In this connection, we notice the judgment of the Full Bench of this court in Sathyabhama v. Ramachandran (cited supra) wherein it has been laid down that the Family Court acts as a criminal court while dealing with certain applications coming with its domain and acts as a civil court while dealing with the certain other applications. A learned Single Judge of the Bombay High Court in Mrs. Pramodini Vijay Fernandes v. Mr. Vijay Fernandes (cited supra), while dealing with the question as to whether the D.V. Act is a penal statute, referred to Section 26(1) of the Act and held as follows;

Merely because of the jurisdiction to entertain application u/s 12 has been conferred upon the learned Magistrate the said Act cannot be treated as a penal statute and the proceedings under the said Act cannot be treated as criminal proceedings. The power under the Act can be exercised even by a Civil Court over the Family Court.

A learned single Judge of the Madras High Court in Natchathiram v. Vanitha & others (cited supra) recognizes the power of the Family Court to pass orders u/s 26(1) and also obligation of the aggrieved party to inform the learned Magistrate of the orders obtained u/s 26(1) from the Family Court.

As already indicated by us, even apart from Section 23 of the D.V. Act, Section 18 itself contemplates passage of interim protection orders by the Magistrate. Section 19 of course contemplates residence orders while disposing of applications under sub-section (1) of Section 12. According to us, when Section 26(1) speaks of reliefs grantable by the learned Magistrate under the provisions of the D.V. Act, the same envisages reliefs grantable under Sections 18, 19, 21 and 22 of the Act The power to grant interim orders should be conceded to all courts having power to pass final orders as the very purpose of passing the interim orders is to prevent a situation of the final order becoming meaningless. We should also notice in this context, the backgrounds of this case where the party got the application, which he filed before the CJM Court, dismissed as not pressed without prejudice to his right to move the Family Court. (See Ex. P6). We should also notice Ex. P5 order of this court, which also indicates that the proposal of the petitioner to withdraw from the proceedings before the Magistrate under the provisions of the D.V. Act in view of his intention to move the Family Court was brought to the notice of this court. In Ex. P5 this court observed that the petitioner shall be at liberty to pursue such course if he is so advised.

The result of the above discussion is that the writ petition succeeds. We set aside the impugned order and hold that the Family Court has power in view of Section 26 of the D.V. Act to pass interim protection orders as well as interim residence orders. The Family Court will pass revised orders on the interlocutory applications at the earliest and at any rate within six weeks of receiving a copy of this judgment.