"It Is Wife's Choice": Bombay HC Rejects Husband's Plea To Transfer Domestic Violence Act Proceedings From Magistrate To Family Court
The Bombay High Court denied the transfer of D.V. proceedings from the Magistrate Court to the Family Court observing that the transfer would further delay the already long pending proceedings.
The Bench clarified that although High Courts have the jurisdiction to transfer D.V. Proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) from the Magistrate to the Family Court, the Court must be judicious and careful in exercising the power of the transfer. The Court explained that the proceedings under the D.V. Act were “summary in nature” and had to be completed within a certain time frame.
A Single Bench of Justice Arun R. Pedneker observed, “If conflict of judgment on same facts and between the same parties is the sole ground of transfer, every transfer petition filed by the husband will have to be allowed by this Court making the choice of wife to approach the Magistrate meaningless. The choice available to the wife file application either under section 12 or under Section 26 of the D.V. Act would be rendered nugatory.”
Advocate Taubon Irani appeared for the applicant, while Advocate Archit Jayakar represented the respondent.
The husband had filed an application to transfer the D.V. proceedings initiated by his wife before the Magistrate under Section 12 of the DV Act to the Family Court.
The Court noted that the case filed by the wife was pending for a long period of time before the magistrate court and it had not passed any interim orders of maintenance or residence yet. “Although there is no stay granted by this Court to the D.V. Proceedings, there are no interim orders of maintenance or residence passed by the Magistrate Court,” the Court remarked.
The Bench observed that the purpose of the DV Act was ‘frustrated’ since the matter had been listed before the Magistrate for over 40 hearings, and yet maintenance was not granted to either the wife or the school-going minor daughter.
Therefore, the Court held that the “Transfer of D. V. proceedings from Magistrate Court to the Family Court would further aggravate the situation of the wife and the minor daughter.”
“The Respondent-Wife has custody of the school going daughter and no interim maintenance order is passed although the matter is listed before the Magistrate over 40 hearings, as such, the purpose of the D. V. Act is frustrated,” the Bench remarked.
Consequently, the Court held that “Although this Court has held that it has the jurisdiction to transfer D. V. Proceedings initiated under Section 12 before the Magistrate to the Family Court, this Court has to be judicious and careful in exercising the power of the transfer for the reason that the proceedings under the D.V. Act are summary in nature and has to be completed within certain time frame and urgent reliefs are required to be obtained by the wife for residence and maintenance.”
The Bench directed the Magistrate to decide the Application within 60 days in terms of the mandate of Section 12(5) of the D. V. Act.
Accordingly, the High Court dismissed the application.
Cause Title: A v. B (Neutral Citation: 2024:BHC-AS:26874)
Appearance:
Applicant: Advocates Taubon Irani, Sushmita Sherigar and Disha Shetty
Respondent: Advocates Archit Jayakar, Boomi Upadhyay and Shivani Prasad
