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Synopsis

The Kerala High Court recently held that a proceeding initiated under the Domestic Violence Act, 2005 cannot be transferred to a Family Court. Going by the definition of "respondent" under Section 2(q) of the Act, even a female living in a relationship in the nature of marriage can institute an application under Section 12 of the Act and in such a case, transferring the matter to a Family Court may result in an indiscriminate classification, as Family Court is empowered to entertain disputes between the parties to a marriage only, Court said.

A Division Bench of Justice Anil K Narendran and Justice P.G. Ajithkumar, while dismissing the appeal, held, “The scheme of the D.V.Act is such that an aggrieved person is ensured more effective protection through the forum of a criminal court. The D.V.Act was enacted much after the Family Courts Act, 1984 came into force. The Legislature, fully conscious of the provisions of the Family Courts Act, had enacted the D.V.Act in 2005 creating a special forum by investing powers on Judicial Magistrates to deal with the applications under Section 12 and also creating a Court of Session as the appellate forum under Section 29. The intention of the Legislature to confine the jurisdiction to entertain an application under Section 12 of the D.V. Act to the Judicial Magistrates is clear from provisions in the Act. As long as the Family Court or, for that matter, other civil courts cannot have original jurisdiction to entertain an application under Section 12 of the D.V. Act, no application under Section 12 pending before a Magistrate can be transferred to a Family Court.”

Reliance was placed on Rajeev Thomas (2018) 4 KHC 8, Anish Antony Thimothy (2011) 3 KHC 46 and Mony MA (2007) 2 KLJ 209, in this regard.

It was further noted that a proceeding under Section 12 of the DV Act, 2005 may be of civil nature but as per Section 28, such an application is governed by the Criminal Procedure Code, 1973. The Magistrate dealing with the application is empowered under Section 28(2) for laying down its own procedure – The forum constituted under Section 12 read with Section 27 is the court of a Judicial Magistrate/Metropolitan Magistrate, as the case may be.

This unequivocally indicates the jurisdiction of a Magistrate court in such cases.

Reading the definition of an aggrieved person under the Act, Court added that allowing an application of transfer in Domestic Violence cases to Family Court or other Civil Court may amount to denial of a special right, conferred exclusively on women under the Act and also direct her to a forum totally inconvenient to her.

The appellant had preferred an appeal invoking Section 5(i) of the Kerala High Court Act, 1958 seeking transfer of DV case to Family Court on the ground that reliefs claimed are essentially civil in nature.

Case Title: Vineet Ganesh v. Priyanka Vasan | Tr. Appeal (C) No. 1 of 2023