The Bombay High Court allowed the transfer of a pending criminal case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 to the Family Court at Pune to be tried along with the pending divorce petition in the interest of justice.
Facts of the Case
Justice SC Gupte listened to the application for transfer filed by Santosh Mulik, the husband. Santosh submitted before the court that his wife Mohini Chaudhari had filed the domestic violence case after he filed a petition for divorce.
With regard to Section 26 of the Domestic Violence Act, the application may be transferred to the Family Court at Pune, where both proceedings can be tried in the same courtroom.
Whereas, it was argued that Family Court has no authority to consider a domestic violence proceeding filed under Section 12 of the Act. The said party gave reference of two judgments of the Bombay High Court in, Sandip Mrinmoy Chakraborty Vs. Reshita Sandip Chakrabarty and Minoti Subhash Anand vs. Subhash Manoharlal Anand in support of his application for transfer.
The other party relied on a judgment of Chhattisgarh High Court in Smt. Neetu Singh Vs. Sunil Singh and submitted that the option to proceed before a family court in a pending matrimonial proceeding under Section 26 of the Act is available to the aggrieved party, who is the respondent in the present case.
Court noted that Family Court has jurisdiction as per Section 26 of the mentioned act
“The question in this Misc. Civil Application, which seeks transfer of a proceeding, is not about who has the option to file such proceeding under the Act or to have the same transferred to the Family Court. The question is, whether it is in the interest of justice to have the two proceedings heard together and if the Family Court is the proper court to hear the proceedings together, where it has jurisdiction to consider the reliefs prayed for in the domestic violence proceeding filed before the criminal court.
If the two matters have to be heard together, and it is certainly in the interest of justice that they be so heard, they can come only before the Family Court. So far as the jurisdiction of that court is concerned, having regard to Section 26 of the Act and the judgments of our courts ruling in favour of such jurisdiction, it cannot possibly be urged that the Family Court lacks such jurisdiction.”
Court further noted that the transfer of proceedings would not deteriorate her right to appeal
“In any event, since from the domestic violence proceeding that may be heard along with the matrimonial proceeding before the Family Court, an appeal would lie to this court, and in that sense, no party can be said to be loosing his/her right of appeal, what is lost is a further right of revision. That, however, is no ground to deny the transfer of proceedings on the basis of the principle of justice noted above.”
In nutshell, the application was allowed.
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