Cesil Jesudas v. Sandhya J S

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943 OP (FC) NO. 556 OF 2021** **(OP (GW) 2305/2020 OF FAMILY COURT, THIRUVANANTHAPURAM) PETITIONER/PETITIONER:** CESIL JESUDAS AGED 43 YEARS S/O. YESUDAN, RNRA-A28 TC 14/1061-4, DEEPASREE, RAJEEV NAGAR, VAZHUTHACAUD, THYCAUD P.O, THIRUVANANTHAPURAM BY ADVS. V.M.KRISHNAKUMAR P.R.REENA P.S.SIDHARTHAN MAYA M. ## **RESPONDENT/RESPONDENT:** SANDHYA J S, AGED 37 YEARS D/O.SELESTHEENAL, SHRA 302, RAGAM VEEDU, KOTTAMUGAL, NALANCHIRA P.O, THIRUVANANTHAPURAM PIN 695 015 BY ADV R.UMASANKAR THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(FC) No.556 of 2021 2 ## **A.MUHAMED MUSTAQUE & C.R SOPHY THOMAS, JJ.** ------------------------------------ ## O.P. (FC) No.556 of 2021 ------------------------------------ ## Dated this the 15[th] day of February, 2022 ## **J U D G M E N T** ## **Sophy Thomas, J.** The short question that arises for consideration is, whether the Family Court can proceed with the petition for guardianship and custody of the minor child, when there is an interim order for custody passed by the Magistrate under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the 'D.V. Act'). 2. The petitioner is the father of the minor children Bevin Cesil and Bryan Cesil and the respondent is their mother. The marriage between the petitioner and respondent was solemnised on 11.04.2007 and they were living together with their children at his house. During Onam vacation, in September 2019, the respondent went to her paternal house along with the children and never returned thereafter. She filed M.C No.100 of 2019 before the Judicial First Class Magistrate Court-V, OP(FC) No.556 of 2021 3 Thiruvananthapuram and obtained protection order against the petitioner in which he was restrained from taking custody of the minor children. Meanwhile, she filed O.P No.374 of 2020 seeking a decree of divorce, and the petitioner filed O.P (G&W) No.2305 of 2020, for getting permanent custody of the children. During counseling, the respondent produced the order of the Magistrate, to show that the petitioner was restrained from taking custody of the children and so, according to her he cannot seek custody of the children before the Family Court. Apprehending that he may not get custody of the children because of Ext.P1 order of the Magistrate, he approached this Court with this petition for a clarification that, pendency of Ext.P1 order will not be a bar for granting custody of the children as per Ext.P3 O.P filed by him. 3. Sri.Umasankar, learned counsel appearing for the respondent vehemently opposed the petition saying that, without challenging Ext.P1 order of the Magistrate, the petitioner cannot seek custody of the children before the family court. 4. For answering that challenge, we have to find out the impact of an interim order passed by a Magistrate under Section 23(2) of the D.V. Act. Section 12 of the said Act reads thus: OP(FC) No.556 of 2021 4 “An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under that Act.” 5. Section 19 of the D.V. Act deals with residence orders. Section 20 deals with monetary reliefs, Section 21 deals with custody orders and Section 22 deals with compensation orders. Section 21 of the D.V. Act reads as follows: “ **21. Custody orders** .—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent.” 6. Section 23 of the D.V. Act deals with the power of the Magistrate to grant interim and ex parte orders. It says that, in any proceedings before him under this Act, the Magistrate may pass such interim order as he deems just and proper. If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of OP(FC) No.556 of 2021 5 domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. 7. So, obviously, the Magistrate has got the power to pass orders for temporary custody of children under Section 21 of the Act, and an interim or ex parte order also can be passed for custody, under the said Section, on disclosure of a prima facie case, on the basis of an affidavit filed by the aggrieved person. The power of the Magistrate under Section 21 to grant temporary custody of the child is independent of the provisions of the Guardians & Wards Act, 1890. 8. The very objective of the D.V. Act is to protect women from violence that occurs within the family and for matters connected therein. In fact, it was not intended to create another forum for adjudication of disputes arising out of matrimonial relationship. So, the proceedings under the Act has to be understood as supplemental provision, besides the right to OP(FC) No.556 of 2021 6 adjudicate their issues in a competent Civil Court, Family Court or Criminal Court. The protective measures envisaged under the Act include residence orders, monetary reliefs, custody orders, compensation orders etc. The main objective of such proceedings is to protect the women, rather than adjudicating the disputes. 9. As per Section 23(2) of the Act, if it deems just and proper, a Magistrate can pass an interim order. Likewise, a Magistrate can grant an ex parte order on the basis of an affidavit. So, no adjudicatory process is involved in passing such interim/ex parte orders by the Magistrate. If the rights of the parties are not decided conclusively in passing such interim/ ex parte orders, the outcome cannot be treated as an outcome of adjudication. The procedure contemplated under the Act is in the nature of inquiry of inquisitorial procedure. While exercising the powers under the Act, the Magistrate is not deciding the dispute as in an adversarial system, but only taking measures to protect the aggrieved person/women. The outcome of an inquiry in a remedial procedure should not have an impact, in adjudication of disputes between the same parties before a competent court or OP(FC) No.556 of 2021 7 forum. The inquiry being treated as an ancillary or incidental procedure, to the main issue of domestic violence, any outcome of such proceedings will not be decisive in the subsequent proceedings. So, the inquiry and the orders interim or final, passed by the Magistrate under the D.V. Act to ensure protection of the aggrieved person will not bar the Family Court or any other competent court having power to adjudicate such dispute. The outcome in such inquiry proceedings may be relevant while deciding the dispute in subsequent proceedings before the competent court under Sections 42 or 43 of the Indian Evidence Act, 1872 (reliance placed on _**Mahinkutty** vs._ _**Anshida**_ 2021 (3) KLT 230). 10. The pendency of proceedings under the D.V. Act, or any order, interim or final, passed under the Act, is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of the interim/final order passed under the Act, as held by the Apex Court in _**Satish Chander Ahuja** vs._ _**Sneha Ahuja**_ (2020 (6) KLT 208 SC). 11. A Division Bench of this Court in _**Narayana Elayathu** vs._ _**Sandhya**_ (2022 (1) KLT 77) observed that, in a suit or OP(FC) No.556 of 2021 8 proceeding in relation to the guardianship of the person or the custody of, or access to any minor, the jurisdiction of the District Court under Sections 7 and 8 of the Guardians & Wards Act, 1890 is taken away by the Family Court as per Section 7(1) explanation (g) of the Family Courts Act, 1984. The Family Courts are set up for the settlement of family disputes, to exclusively provide within the jurisdiction of the Family Courts, the matters relating to matrimonial relief including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, declaration as to the validity of marriage, matrimonial status of any person, property of the spouses, declaration as to the legitimacy of any person, **guardianship of a person or the custody of any minor** , maintenance etc. etc. The nature of suits and proceedings coming within the jurisdictional competence of a Family Court is enumerated in Section 7 of the Family Courts Act. When parties to a marriage or an erstwhile marriage seek guardianship of the person or the custody of, or access to their minor children, it is exclusively a suit or proceeding coming under explanation (g) to Section 7(1) of the Family Courts Act. 9 OP(FC) No.556 of 2021 12. The orders passed by the Magistrate under the D.V. Act interim or final will not in anyway affect the jurisdictional competence of the Family Court to adjudicate upon the guardianship, custody and access of minor children exclusively coming under explanation (g) to Section 7(1) of the Family Courts Act. 13. The Scheme of the D.V. Act, does not contemplate that any order, interim/final, passed under the said Act, prevents any court of competent jurisdiction, civil, criminal or Family Court, from taking cognizance of a suit or holding of trial. The orders passed under the D.V. Act cannot be held to be orders or judgments passed in exercise of any matrimonial jurisdiction by the court. 14. There can be no applicability of principle of res judicata when orders of criminal courts are pitted against proceedings in civil court. The proceedings under the D.V. Act and proceedings before a civil court, Family Court or a criminal court are independent proceedings. The proceedings under the D.V. Act are proceedings which are to be governed by the Code of Criminal Procedure, 1973. OP(FC) No.556 of 2021 10 15. It is well settled that, a decision by a criminal court does not bind the civil court, while a decision by the civil court binds the criminal court. In _**Seth Ramdayal Jat** vs._ _**Laxmi Prasad**_ (2009 (3) KLT SN 11 (Case No.14), the Apex Court held that the judgment in a criminal case is admissible for a limited purpose. Relying only on, or on the basis thereof, a civil proceeding cannot be terminated, but that would not mean that it is not admissible for any purpose whatsoever. The standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle, that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties, while dealing with the same subject matter, and both the cases have to be decided on the basis of the evidence adduced therein. If the judgment of a criminal court is relevant as per Section 43 of the Evidence Act, that judgment can very well be taken note of, and there is no embargo on the civil court to place reliance upon it as a corroborative material. 16. So, Ext.P1 order passed by the Magistrate under the 11 OP(FC) No.556 of 2021 D.V. Act, restraining the petitioner from taking custody of the minor children will not stand in the way of the petitioner seeking guardianship and permanent custody of his minor children before the Family Court, which is the competent court under Section 7(1) explanation (g) of the Family Courts Act to adjudicate upon that issue. So, the original petition stands allowed clarifying that, Ext.P1 order will not be a bar in adjudicating Ext.P3 petition by the Family Court and to pass appropriate orders therein. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp OP(FC) No.556 of 2021 12 ## **APPENDIX OF OP (FC) 556/2021** PETITIONER'S EXHIBITS: Exhibit P1 TRUE COPY OF THE ORDER DATED 30-10-2019 IN CMP NO. 3354/2019 IN MC 100/2019 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-V, THIRUVANANTHAPURAM Exhibit P2 TRUE COPY OF OP NO.374/2020 OF FAMILY COURT THIRUVANANTHAPURAM Exhibit P3 TRUE COPY OF OP(GW) 2305/2020 FILED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM RESPONDENT'S EXHIBITS: NIL. True Copy P.S to Judge smp