Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., examines whether an application under Section 12 of the Domestic Violence Act on behalf of relatives of deceased seeking monetary relief, possession of ‘stridhan’ and compensation was maintainable or not.

Question for Consideration:

Whether an application presented by the petitioners under Section 12 of the D.V. Act on behalf of deceased, Suchita Sapre, seeking:

(i) monetary relief under Section 20(b) i.e. reimbursement of medical expenses incurred by petitioner 2 for the treatment of deceased, Suchita;

(ii) possession of “Streedhan” of late, Suchita under Section 19(8) of the D.V. Act; and

(iii) compensation under Section 22 from the respondents, was maintainable?”

Trajectory of the Case  

Petitioner 1 was the minor daughter of the deceased. Respondent 1 was the father of the petitioner and respondents 2 and 3 were the grandfather and grandmother of petitioner 1, whereas petitioner 2 was the mother of the deceased.

It was stated that the deceased was neglected by her husband and in0laws and was subjected to physical, verbal and economic abuses by the respondent due to which she suffered serious sickness and later passed away.

Petitioners alleged the respondents did not bother to look after Suchita in her lifetime and even during her illness. Petitioner 2 (mother of Suchita) would claim that, she had spent Rs 60,00,000 for Suchita’s treatment and would also claim that, she had gifted gold ornaments in Suchita’s marriage, which are in the custody of mother-in-law, respondent 3.

In view of the above background, petitioner had presented an application under Section 12 of the DV Act.

Respondents questioned the locus of the petitioners and maintainability of the present application under Section 12 of the DV Act stated that the reliefs under the said Act could not have been sought on behalf of the deceased.

Later, petitioners’ application was rejected and in appeal, the order of Additional Sessions Judge was confirmed, and the said orders have been assailed in the instant petition.

Significant Point: Suchita died in the year 2013, whereas the petitioner presented the application for various reliefs in 2015.

Analysis, Law and Decision

High Court noted that petitioners did not claim themselves to be “aggrieved person” but asserted their right to present an application under Section 12 of the DV Act on behalf of the deceased who as per them was an aggrieved person. Therefore, the petitioners sought enforcement of the personal rights of the deceased.

The Bench held that the rights sought to be enforced by the petitioner by presenting an application under Section 12 of the DV Act was clearly not maintainable for the following reasons:

  • the right to claim monetary reliefs, protection order and compensation under the D.V. Act, are personal-statutory and inalienable rights of the “aggrieved person”. These rights extinguish on the death of “aggrieved person”. For that reason, such rights were not enforceable by legal representatives of “aggrieved person”.
  • expression “aggrieved person” has to be understood and given restrictive meaning, in view of the Statement of Object and Reasons of the Act. Defined expression “aggrieved person” is not inclusive and thus by process of interpretative explanation, its scope cannot be expanded like suggested by the petitioners, as it would counter the Scheme and Object of the Act and would defeat the intention of the legislation.
  • although “any other person” can present an application under Section 12 of the D.V. Act, on behalf of “aggrieved person”, nevertheless, such “other person” cannot maintain an application independently of an “aggrieved person”. Infact, Section 12 of the D.V. Act, simply enables, the “aggrieved person” to present an application under the Act through “any other person”. That being the Scheme of the Act, “aggrieved person” must be living (alive) while presenting the application.

Hence, petitioners’ application was rightly rejected by Trial Court and Appellate Court.

In view of the above discussion, petition was disposed of. [Kanaka Kedar Sapre v. Kedar Narhar Sapre, 2022 SCC OnLine Bom 1, decided on 4-1-2022]


Advocates before the Court:

Mr. Abhijeet Sarwate, Advocate for the petitioner.

Mr. Tapan Thatte a/w. Mr. Amar Patil i/by. Mr. Shantanu Adkar, Advocate for respondents 1 to 3.

Mr. A.R. Patil, APP for State.

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., allowed the petition and directed that there cannot be any proceedings against the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

The instant Criminal Petition was filed under Section 482 Criminal Procedure Code i.e. Cr.P.C., praying to quash the entire proceedings on the file of the Civil Judge and JMFC Arakalagudu in Crl.Misc.No.45/2021 initiated by respondent 1 under Section 12 of Protection of Women From Domestic Violence Act 2005  as against the petitioner.

Counsel for the petitioner Mr. M H Prakash submitted that the petitioner has been unnecessarily made a party by the respondent 1 in her application before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was further submitted that the only allegation found is that respondent 1 suspected her husband to be having illegal relationship with the petitioner and he thought of bringing her to his house therefore the petitioner should not have been made a party in the application filed under Section 12 of the Act as she does not fall within the meaning of respondent as mentioned under Section 2(q) of the Act.

Counsel for respondent 1 Mr. C P Puttaraja submitted that Domestic violence has been committed on the instigation of the petitioner and this is the reason for making her party in the application filed under Section 12 of the Act.

The Court observed that the definition of ‘domestic relationship’ under Section 2(f) and Section 2(q) of the Act makes it clear that only those persons who have been in the domestic relationship can be made as respondent. It was further observed that in the instant case the allegation against the petitioner is that the 1st respondent’s husband was suspected to be having illegal relationship with the petitioner and he thought of bringing the petitioner to his house. Except this allegation there are no other allegations against the petitioner which indicate that she too joined with the husband of the 1st respondent in harassing her.

The Court held “Therefore the petitioner does not come within the scope of respondent as envisaged under Section 2(q) of the Act. Making her respondent in the application filed under Section 12 of the Act is unwarranted”.[Harini H v. Kavya H, Criminal Petition No. 2148 OF 2021, decided on 17-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., held that

Protraction and prolongation of litigations affecting women can never be encouraged by the Courts.

Husband and wife used to live in Singapore and when a misunderstanding arose between the two, the husband stated that the respondent/wife deserted him in the year 2018. Hence, the husband sought the relief of Restitution of Conjugal Rights by filing a petition in the Family Court, Chennai.

Wife had filed a Domestic Violence Complaint against the husband and further filed the maintenance seeking maintenance.

Under the above-stated circumstances, an instant transfer petition was filed to transfer the Domestic Violence Act case.

Questions of Legal Importance

Whether the High Court in the exercise of power of superintendence under Article 227 of the Constitution of India transfer the criminal proceedings from the Criminal Court to the Family Court, when the powers of transfers of cases are already conferred on the High Court under the provisions of the Criminal Procedure Code and Civil Procedure Code?

Presuming, the powers under Article 227 of the Constitution of India is exercised, in order to transfer a criminal case to a Civil Court or Family Court, what would be the consequences and the provisions governing such transfers and the Constitution of Special Courts under the Special enactments?

Whether the decision of this Court in Mohana Seshadri v. Anuja, CDJ 2020 MHC 944, can be followed as a precedent in the present matter?

Analysis

The above case cited by the petitioners need not be relied upon for the purpose of entertaining a transfer petition under Article 227 of the Constitution of India. In the present petition, this Court has to consider the provisions of the Special Acts namely the Domestic Violence Act, Family Courts Act and also the Code of Criminal Procedure for the purpose of forming an opinion.

Domestic Violence Act

Provisions of the ‘DV Act’ are unambiguous that an application is entertainable before the Judicial Magistrate Class I or the Metropolitan Magistrate as the case may be for seeking one or more reliefs under the Act.

Proceedings under the ‘DV Act’ are regulated under the Code of Criminal Procedure as contemplated under Section 28 of the ‘DV Act’. Thus, a complaint registered under Section 12 of the DV Act is criminal proceedings on the criminal side of the judiciary and accordingly the said proceedings are to be regulated under the Criminal Procedure Code.

Generalia Specialibus non derogant (when there is a conflict, general and special provision, the later will prevail)

It is to be held that Special Act will prevail over the General Laws.

Therefore, when a Special enactment is in force to deal with certain specific offences, in the present context, Domestic Violence Act, then the other general laws cannot have any application and all such Domestic Violence’s are to be tried by following the procedures as contemplated under the Special Enactment and this being the legal principles, the application under

Section 12 of the Domestic Violence Act cannot be construed as a civil natured proceeding.

Family Courts Act, 1984

Applications which are all filed seeking maintenance for wife, children and parents alone shall be tried by exercising the powers conferred under Section 7(2)(a) of the Family Courts Act, 1984. Hence, with regard to the jurisdiction as contemplated under the DV Act, the Family Courts/Civil Courts are not having jurisdiction to deal with certain offences defined under the provisions of the DV Act.

Criminal Procedure Code

Section 407 of the Criminal Procedure Code provides Power of High Court to transfer cases and appeals.

 Hence, the High Court is empowered to transfer the case from one Court to another Court as the case may be as contemplated under the provisions of Section 407 of the CrPC.

Civil Procedure Code

Under Section 24 of CPC, Civil Proceedings can be transferred from one Civil Court to another Civil Court.

 However, Criminal Proceedings cannot be transferred from one Criminal Court to a Civil Court/Family Court.

Article 227 of the Constitution of India

In the Supreme Court decision of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, there was an elaborate consideration of High Court’s Power of Superintendence under Article 227 of the Constitution.

Power of High Court

High Court’s power under Article 227 to be plenary and unfettered but at the same time, the High Court should be cautious in its exercise.

“…in cases, where the High Court exercise its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claiming it as as a matter of right.”

Jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Jurisdiction under Article 227 is exercised by the High Court for the vindication of its position as the highest judicial authority in the State

Scope of the power under Article 227 of the Constitution cannot be exercised overriding the provisions of the Special Enactments, wherein the specific reliefs are provided for redressal.

Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated.

Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’.

Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceeding”.

Bench added that when the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a Civil case to a Criminal Court, then conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by Supreme Court decisions.

Transfer not Traceable

The power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India.

Multiple options are provided under the special enactments, facilitating the aggrieved women to redress their grievances which are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting women must be disposed of at the earliest possible.

Proceedings under the Domestic Violence Act

Further, the Court added to its elaborative analysis that the initiation of proceedings under the Domestic Violence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate.

Offences/Bodily Injuries as contemplated under the DV Act are against the society at large and therefore, the proceedings are criminal and competent criminal Court of Law is empowered to try those cases.

In view of the above discussion, Court concluded that criminal proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.

Therefore, any transfer petition, if at all filed to transfer a case registered under the Domestic Violence Act must be entertained only under the Code of Criminal Procedure and certainly not by invoking power under Article 227.

On transferring the DV Act proceedings to Family Court, the appropriate reliefs are depraved.

Hence, the objections regarding the maintainability of the transfer petition raised by the Registry, High Court of Madras, is perfectly in consonance with provisions of law and said objections stands confirmed. [P. Arun Prakash v. S. Sudhamary, 2021 SCC OnLine Mad 1954, decided on 01-04-2021]

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., dismissed a criminal revision application filed against the order of the trial court whereby the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, filed by the divorced wife of the applicant-husband was allowed and he was directed to pay her and their daughter, a monthly allowance of Rs 7,500 and Rs 5000 respectively. He was also directed to pay his divorced wife, a compensation of Rs 1 lakh and costs amounting to Rs 2,000.

Shorn of details, the facts of the matter were that the parties were married to each other, who obtained a mutual divorce a few years after their marriage. Subsequently, the divorced wife filed a civil suit challenging the decree of divorce, alleging that the divorce was obtained by fraud and misrepresentation. The said civil suit is pending. She also filed an application under Section 12 of the DV Act before the Magistrate, wherein she averred that despite the passing of the divorce decree, she continued to cohabit with the applicant-husband in the same household as husband and wife along with their daughters, for a period of ten long years. The Magistrate found the fact of cohabitation as averred by the divorced wife was sufficiently proved. He also found that there was reliable evidence to substantiate her allegations of domestic violence. Accordingly, the Magistrate passed the impugned order mentioned above. Applicant’s appeal to Sessions Judge was also dismissed. Thus, the instant revision application.

At the outset, the High Court noted that since, admittedly, the civil suit filed by the divorced wife had not yet reached finality, one could only proceed on the premise that there was a decree of divorce between her and the applicant.

The Court distinguished the case Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 on facts, in as much as in the instant case, both the courts below had demonstrated as to how prima facie the decree of divorce was not acted upon and the couple, i.e., applicant and the divorced wife, had continued to cohabit in the same abode in spite of such a decree. It was held: “There was ample evidence before the two Courts below to come to a plausible conclusion that though the decree of divorce was obtained in the year 2000, the Applicant and respondent 1 had continued to cohabit in the same household. If that was the case, she was indeed entitled to file a proceeding under Section 12 of the DV Act.”

in such a view of the matter, the High Court did not find any fault with the orders passed by the courts below. Accordingly, the instant revision was dismissed. [Atmaram v. Sangita, 2019 SCC OnLine Bom 3909, decided on 05-11-2019]