Case Note & Summary
The applicant husband and respondent wife were married as per Hindu rites and customs on 08/10/2000. Their matrimonial relationship became strained, and both parties initiated legal proceedings in 2017. The husband filed a divorce petition, Petition No.A-1019 of 2017, before the Family Court at Bandra, Mumbai. The wife separately instituted proceedings under the Protection of Women from Domestic Violence Act, 2005 before the Metropolitan Magistrate at Kurla, where an order was passed directing the husband to pay maintenance for the minor child and to the wife. The maintenance order was challenged before the High Court separately. The present application arose from the husband's prayer to transfer the domestic violence case, bearing No.115/DV/2017, pending before the 57th Court of Metropolitan Magistrate, Kurla, to Family Court No.5 at Bandra, where the divorce petition was pending, and to direct common evidence in both matters. The transfer was sought under Section 24 of the Code of Civil Procedure, 1908 read with Rule 6 of Chapter I of the Bombay High Court (Appellate Side) Rules, 1960 and Article 227 of the Constitution of India. The core legal issues included whether the Family Court had jurisdiction to try and grant reliefs under the Domestic Violence Act, whether transfer was permissible under Section 24 CPC read with Rule 6 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 and Article 227, and whether transfer would deprive the wife of an appellate remedy. The applicant argued that the Family Court was competent to pass orders under the Domestic Violence Act, and that clubbing the proceedings would avoid conflicting decisions, multiplicity, and permit common evidence. He contended that the High Court had power of superintendence over the Magistrate Court and that ends of justice would be served by transfer. The respondent countered that the applicant's conduct did not justify relief, that the application was filed after a delay in 2020 when proceedings were instituted in 2017, and that Family Court proceedings had reached the evidence stage. She further submitted that transfer would result in loss of right of appeal. The High Court noted that the issue of transfer from Magistrate Court to Family Court was no longer res integra. It referred to its earlier decision in Sandip Mrinmoy Chakraboarty v. Reshita Sandip Chakrabarty, where the same issue was examined in light of the Family Courts Act, 1984 and the Domestic Violence Act, 2005. The court observed that Section 7 of the Family Courts Act confers on Family Court the jurisdiction exercisable by a Magistrate of First Class under Chapter IX of the Criminal Procedure Code and such other jurisdiction as conferred by any other enactment. Section 26 of the Domestic Violence Act permits an aggrieved person to seek relief before a civil court, family court or criminal court. The court also noted that a court competent to grant final relief is competent to grant interim relief. It quoted from the earlier order that reliefs sought before the Magistrate in Domestic Violence proceedings could be effectively tried and granted by the Family Court. The court also relied on Minoti Subhash Anand v. Subhash Manoharlal Anand, where a transfer under Section 24 CPC was allowed, and on Santosh Machindra Mulik v. Mohini Mithu Choudhari, which answered the apprehension about loss of appeal by focusing on the justice of the case. The court did not touch the merits of the matrimonial dispute and proceeded on the legal principles. The available judgment excerpt ends before an explicit final operative order; however, the reasoning strongly indicated that the transfer could be allowed in line with the precedents.
Headnote
A) Family Law - Domestic Violence Proceedings - Concurrent Jurisdiction of Family Court and Magistrate - Family Courts Act, 1984, Sections 7, 20; Protection of Women from Domestic Violence Act, 2005, Sections 26, 30 - The applicant sought transfer of DV case pending before Metropolitan Magistrate to Family Court where divorce petition was pending. The Court noted Family Court's jurisdiction under Section 7 of Family Courts Act covers Magistrate First Class jurisdiction and DV Act reliefs may be sought in Family Court under Section 26. Held that reliefs under DV Act can be effectively tried and granted by Family Court; the court competent to grant final relief is also competent to grant interim relief. (Paras 7-8) B) Civil Procedure - Transfer of Proceedings - Avoidance of Conflicting Decisions and Multiplicity - Code of Civil Procedure, 1908, Section 24; Bombay High Court (Appellate Side) Rules, 1960, Rule 6 Chapter I; Constitution of India, Article 227 - Applicant contended that clubbing proceedings before Family Court would avoid conflict and allow common evidence. The Court found substance in this contention, observing common parties and overlapping reliefs. Held that transfer to avoid multiplicity and conflicting decisions serves the interests of justice, and Section 24 CPC read with Rule 6 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 permits such transfer. (Paras 4, 8-9) C) Criminal Procedure - Appellate Remedy - Loss of Right of Appeal on Transfer - Code of Criminal Procedure, 1973, Chapter IX - Respondent argued transfer would curtail right of appeal available if decided by criminal court. The Court referred to earlier decision in Santosh Machindra Mulik v. Mohini Mithu Choudhari, where it was held that concern is justice of case, not appellate forum. Held that apprehension of loss of appeal does not bar transfer when justice requires. (Paras 5, 9)
Issue of Consideration
Whether proceedings under Protection of Women from Domestic Violence Act, 2005 pending before Metropolitan Magistrate can be transferred to Family Court under Section 24 CPC read with Rule 6 of Chapter I of Bombay High Court Appellate Side Rules, 1960 and Article 227 of Constitution, and whether such transfer would deprive respondent of appellate remedy.
Final Decision
Not mentioned in provided excerpt
Law Points
- Family Court has jurisdiction to grant reliefs under Protection of Women from Domestic Violence Act
- 2005
- DV Act reliefs may be sought before Family Court under Section 26
- DV Act provisions are in addition and not in derogation of other laws
- transfer under Section 24 CPC read with Rule 6 of Chapter I of Bombay High Court Appellate Side Rules
- 1960 permissible to avoid conflicting decisions
- court competent to grant final relief is also competent to grant interim relief
