Jyothi K.R. v. Sukumaran, Devaky & Malayappan

## **1mIN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945** **OP (FC) NO. 166 OF 2023** **AGAINST THE ORDER DATED 23/02/2023 IN IA 3/2022 IN OP 1149/2018** **ON THE FILE OF THE FAMILY COURT,THRISSUR** ## **PETITIONER/PETITIONER:** **JYOTHI K.R. AGED 28 YEARS W/O. SUKUMARAN, D/O. RAJAN, KATHANAPARAMBIL VEED, VELIYATHUPARAMBU, OORAKAM VILLAGE, ARATTUPUZHA POST, THRISSUR, PIN - 680562** **BY ADVS. DHANYA P.ASHOKAN M.R.VENUGOPAL S. MUHAMMAD ALIKHAN SREEDARSHAN SUDHAKARAN** ## **RESPONDENTS/RESPONDENTS:** **1 SUKUMARAN AGED 33 YEARS S/O. MALAYAPPAN, CHANDANAVELIL VEED, MANTHONI, POONCHOLA POST, MANNARKAD, PALAKAD DISTRICT, PIN - 678598 2 DEVAKY AGED 59 YEARS W/O. MALAYAPPAN, CHANDANAVELIL VEED, MANTHONI, POONCHOLA POST, MANNARKAD, PALAKAD DISTRICT, PIN - 678598 3 MALAYAPPAN AGED 64 YEARS CHANDANAVELIL VEED MANTHONI, POONCHOLA POST, MANNARKAD, PALAKAD DISTRICT, PIN - 678598** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON** **11.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(FC) No.166 of 2023 2 ## **JUDGMENT** ## **Amit Rawal, J.** This petition is directed against Ext.P5 order dated 23/02/2023 in I.A.No.3/2022 in O.P.No.1149/2008. Petitioner/wife filed a petition by invoking the provisions of Sections 7 (1) explanation (c) and (d) of the Family Courts Act, 1984. The aforementioned petition was filed on 19/08/2022 and in response to the aforementioned petition, respondent/husband appeared and an objection was filed. However, during the pendency of the aforementioned petition, an application has been filed under Order VI Rule 7 (d) of the Code of Civil Procedure for incorporating the additional relief of claiming compensation as provided under Section 22 of the Act. The said application has been rejected by the Family Court by Ext.P5 order on the ground that such reliefs cannot be claimed as per the provisions of Section 26 of the Act. It was held that Family Court had no original and direct jurisdiction to entertain the original petition for the reliefs under the 2005 Act as, in view of the provisions of Section 28 of the 2005 Act, the trial under the various provisions of the Sections shall be governed by the provisions of the Code of Criminal Procedure whereas the Family Court cannot, in such circumstances, decide a petition filed seeking comprehensive and combined relief. O.P(FC) No.166 of 2023 3 ## 2. In support of the arguments, the counsel for the petitioner relied upon paragraph 36 of the judgment of the Supreme Court in **Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, 2017 KHC 6434** . _“36. S.26 of the Act, 2005 has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by Act, 2005 is expressly barred from consideration by a Civil Court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the Civil Court. When the proceeding initiated by plaintiff in the Judge, Small Causes Court alleged termination of gratuitous licence of the appellant and prays for restraining the appellant from using the suit flat and permit the plaintiff to enter and use the flat, the right of residence as claimed by the appellant is interconnected with such determination and refusal of consideration of claim of the appellant as raised in her counter claim shall be nothing but denying consideration of claim as contemplated by S.26 of the Act, 2005 which shall lead to multiplicity of proceeding, which can not be the object and purpose of Act, 2005."_ ## 3. We have heard the learned counsel for the petitioner, Ms.Dhanya P. Ashokan and proceed to decide the matter in the absence of any contesting respondents, as, despite service, there is no appearance for the respondents. 4. The language of Sections 12, 18, 19, 20 and 21 is entirely O.P(FC) No.166 of 2023 4 different. As per the provisions of Section 12, Magistrate, on the basis of the evidence, can determine compensation leaving right to party to claim damages and other amount of compensation in an appropriate forum, whereas under Sections 18, 19, 20 and 21 the destitute wife is entitled to claim independent reliefs in terms of protection, residence, monetary and custody orders. The aforementioned reliefs have not been enshrined under Section 12 of the 2005 Act. Section 12 enables the parties to either claim a relief or any other relief. The expression 'any other relief' is at the discretion of the wife to be either claim in a petition under Section 12 or in the manner and mode as has been done. The expression 'in addition to or along with any other relief', would not prevent the aggrieved party to claim relief in any other suit or legal proceedings; in other words, it cannot impel/compel to raise such relief under Section 12 alone and urged this court to set aside Ext.P5 order. 5. This Court had appointed Sri.M.Asok Kini as Amicus Curiae to render assistance to this Court. Amicus Curiae has submitted his report and had referred to the provisions of Section 9 of the Code of Civil Procedure and Sections 7(2) (a) and 7(1)(b) of the Family Courts Act. It was contended that Sections 18 and 19 of the 2005 Act are nothing but an order of injunction that can be granted by a Family Court, subject to the O.P(FC) No.166 of 2023 5 stipulations in Section 7(d) of the Family Courts Act, pertaining to a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship. Jurisdiction is generally understood as an authority to decide and render a judgment by inquiring into the facts. Section 26 do not denude the Family Court from exercising jurisdiction in respect of the relief as sought under Sections 18, 19, 20 and 21 of the Act. Thus the petition seeking relief under Section 18 – 22 along with the relief under Section 7 (2)(a) and (2)(b) of the Family Court Act would be maintainable. 6. The amendment petition in O.P.1149/2018 was filed with the following prayers: _1. In the main O.P., the cause title may be amended as “as per the provisions of section 7(1)(c)(d) of the Family Courts Act read with Section 26 of the Protection of Women from domestic Violence Act”._ _2. The following paragraph may be added as 'paragraph 6A' after the paragraph 6 in the original petition:_ - _“6A) The petitioner and the 1[st] respondent has been living as husband and wife since 11.2.2017 at the house of the 1[st] respondent situated at Mannarkkad. While so, the petitioner sustained burn injuries at the said house due to the ill-treatment of the respondents. The above act amounts to cruelty and hence, the petitioner is entitled to the reliefs provided under the Protection of Women from Domestic Violence Act. This Hon'ble court has power to grant such reliefs also. Therefore, it is humbly prayed that this_ O.P(FC) No.166 of 2023 6 _Hon'ble court may be pleased to grant the reliefs sought in the petition”._ 7. It would be also appropriate to extract the provisions of Section 7 of the Family Courts Act, which reads as under- _“_ _**7.Jurisdiction -** (1) Subject to the other provisions of this Act, a_ _Family Court shall-_ _(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and_ _(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.”_ 8. On perusal of the aforementioned provision, it is evident that by virtue of the aforementioned Act, various reliefs including reliefs with regard to marriage, property, injunction, guardianship as well as the validity of the marriage, had been clubbed to avoid multifariousness of the litigation. Prior to the aforementioned Act, for claiming partition or right in the property, any aggrieved person was required to invoke the provisions of Section 9 of the Code of Civil Procedure, whereas for the purpose of dissolution of marriage, if parties are governed by Hindu Law under the O.P(FC) No.166 of 2023 7 Hindu Marriage Act otherwise under Special Marriage Act or Divorce Act. We would be failing in our duty in not extracting the provisions of Section 12 of the 2005 Act, which reads as follows - _**" 12. Application to Magistrate** – (1) 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 this Act:_ _Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider._ _(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:_ _Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off._ _(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto._ _(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court._ O.P(FC) No.166 of 2023 8 _(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.”_ 9. On a plain and simple reading of the provisions of the aforementioned Act, the aggrieved party or a Protection Officer or any other person on behalf of the aggrieved person is at liberty to seek either ' **one** ' or ' **more** ' reliefs under this Act and before any order could be passed, the Magistrate is enjoined upon an obligation to consider the domestic incident report received by the Protection Officer. Sub-section (2) of Section 12 empowers the Magistrate while entertaining the application either to include a relief for issuance of an order for payment of compensation or damages 'without prejudice to the right of such person' to institute a suit for compensation and damages for the injuries caused by the acts of domestic violence committed by the respondent, with a proviso that in case any decree for an amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount if paid or payable in pursuance of the order passed by the Magistrate shall be set off against the amount payable; in other words, there cannot be any double benefit or compensation to be awarded to the aggrieved persons. 10. What is discerned from the provisions of Section 12 is that an O.P(FC) No.166 of 2023 9 aggrieved person is free to elect any of the reliefs. The legislature in the wisdom has framed the Act by taking into consideration the doctrine of election. The parties are free to elect either a remedy under Section 12 or reserve the right to claim other reliefs as provided under Sections 18, 19, 20 and 21 in the manner and mode as has been done. The plain and simple reading of the provisions of Section 26 left the question clear and unambiguous that a party seeking a claim under any provisions of the civil or criminal court much less a family court can always claim relief in addition as provided under Sections 18, 19, 20, 21 and 22 of the Act. 11. There is no quarrel to the _ratio decidendi_ culled out in the following judgments which reveal that Section 26 of the Act do not denude family court to deal with a petition in a claim under Sections 18, 19, 20, 21 and 22 of the Act. For the sake of brevity, paragraphs 6 and 7 of the Division Bench decision of the Orissa High Court in **Brundaben Patra and Another v. Rajalaxmi Patra, 2011 (4) KHC 740** and paragraph 12 of the Single Bench decision of this Court in **Raju Narayana Swamy v.** ## **Beena M.D., 2017(1) KHC 607** . ## **Paragraphs 6 and 7** of **Brundaben Patra (** _**Supra**_ **)** _“ 6. Thus, a plain reading of the provisions of the Act reveals that the Indian Parliament in its wisdom thought that the existing law governing the field was inadequate to protect_ O.P(FC) No.166 of 2023 10 _women from domestic violence and, therefore, enacted this particular piece of legislation for more effective protection of rights of women which is granted under the Constitution, who are victims of any kind abuse occurring within the family and for matters connected therewith or incidental thereto. This is a piece of progressive legislation and the provisions of the Act has to be interpreted accordingly. From the different provisions discussed above, it is seen that the Indian Parliament has left no scope for refusing any relief on technical grounds. However, since the question of lack of jurisdiction is raised in this case, we come to the conclusion that the learned Judge, Family Court has jurisdiction under this Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding before it. In other words, the original and independent proceeding under the Domestic Violence Act cannot be initiated in the Family Court. An independent and original proceeding under S. 12 of the Act for various reliefs as described in the preceding paragraph is maintainable before the Judicial Magistrate, First Class and thus, the application filed before the learned Judge, Family Court is not maintainable.”_ _7. However, keeping in view the very objective of the Act itself and the fact that the Court should not take recourse to hide behind technicalities and refuse substantial relief to the parties and its order should be tampered with the concept of justice, this Court comes to the conclusion that instead of quashing the entire proceedings, it shall be proper to transfer the proceedings pending before the learned Judge, Family Court to the Court of JMFC, Bhubaneswar with a direction to try and dispose of the application filed by the opposite party as early as possible, preferably within a period of one month_ O.P(FC) No.166 of 2023 11 _from the date of appearance of the parties before it. Since the interim order has been passed, this Court is of the opinion that such order is just and proper though without jurisdiction. The Civil Proceeding No.480 of 2011 be transferred from the Court of Judge, Family Court to the Court of JMFC, Bhubaneswar who is trying UTP cases. The parties are directed to appear before the said Court on 20/05/2011. The learned Judge, Family Court shall transmit the record so as to reach the Court of JMFC at least three days prior to the appearance of parties on the aforesaid date. The Magistrate may change the nomenclature and register it as a criminal case._ _The writ petition is accordingly disposed of. This judgment be communicated to the lower Court immediately.”_ ## **Paragraph 12 of Raju Narayana Swamy(** _**Supra**_ **)** _"12. S.26 of the PWDV Act has been inserted with an objective that in addition to the provisions of S.12, the aggrieved person is entitled to any relief available under S.18, S.19, S.20, S.21 and S.22 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 the PWDV Act. Sub-section (2) of S.26 further envisages that any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or Criminal Court. Sub-section (3) obliges the aggrieved person to disclose the nature of the reliefs, if any. obtained in any proceeding other than a_ O.P(FC) No.166 of 2023 12 _proceeding under the Act. The intention of the Legislature was to enable the aggrieved person to secure the same relief in other proceedings before the Civil, Family or Criminal Court, whether it was instituted prior to or after the commencement of the PWDV Act. This would enure to the convenience of the aggrieved person as well as the respondent and would also prevent multiplicity or proceedings and conflict of orders. However an application under S.12 seeking various reliefs under S.18 to 22 cannot be filed as an original or independent application before the Family Court as the Act expressly stipulates that a proceeding under S.12 of the PWDV Act has to be filed before the Magistrate competent to entertain the application. The Family Court will have jurisdiction under the PWDV Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding and the application under S.26 of the Act seeking relief under S.18 to 22 is filed in that proceeding. The same view has been taken in Neetu Singh (supra) and Kumari Behara (supra). Accordingly. I hold that the Family Court Emakulam is having no jurisdiction to entertain MC No. 367 of 2015 on the files of the said Court. The same is quashed. However, the respondent will be at liberty to approach the learned Magistrate having jurisdiction under S. 12 of the PWDV Act or alternatively, before the competent Court under S.26(1) of the PWDV Act, where any legal proceeding affecting the parties are pending. The petition is disposed of as above."_ ## 12. The finding of the family court that the original petition cannot be made one under the provisions of the DV Act is untenable much less O.P(FC) No.166 of 2023 13 opaque, capricious and hereby rejected. The whole purpose of carving out the Family Court Act is to club various provisions by confining the jurisdiction of one court to prevent multifariousness. This is precisely what has been sought in this amendment application. Order of the trial court rejecting the amendment application is illegal and perverse and is liable to be set aside. 13. In the result, we set aside Ext.P5 order and allow the original petition. Accordingly, the application for amendment is allowed. Petitioner is at liberty to file amendment petition within a period of three weeks from the date of receipt of certified copy of this judgment. **Sd/-** **AMIT RAWAL** **JUDGE** **Sd/C.S.SUDHA JUDGE** Jms O.P(FC) No.166 of 2023 14 ## **APPENDIX OF OP (FC) 166/2023** |PETITIONER|EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF OP 1149/2018 DATED| ||20/06/2018 FILED BY THE PETITIONER| ||BEFORE THE FAMILY COURT, THRISSUR| |Exhibit P2|TRUE COPY OF THE COUNTER DATED| ||15/01/2020 FILED BY THE PETITIONER IN| ||OP 1149/2018 ON THE FILE OF THE FAMILY| ||COURT, THRISSUR| |Exhibit P3|TRUE COPY OF THE AMENDMENT APPLICATION| ||AS IA 3/2022 DATED 19/08/2022 FILED BY| ||THE PETITIONER IN OP 1149/2018 ON THE| ||FILE OF THE FAMILY COURT, THRISSUR| |Exhibit P4|TRUE COPY OF THE OBJECTION DATED| ||12/10/2022 FILED BY THE RESPONDENTS IN| ||IA 3/2022| |Exhibit P5|TRUE COPY OF THE ORDER DATED 23/02/2023| ||PASSED BY THE FAMILY COURT, THRISSUR IN| ||IA 3/2022 IN OP 1149/2018|