DATE OF JUDGEMENT :
26th February 2021
JUDGES :
Justice R.D. Dhanuka , Justice Virendrasingh Gyansingh Bisht
PARTIES :
Dr. Sandip Mrinmoy Chakrabarty (Appellant)
Mrs. Reshita Sandip Chakrabarty (Respondent)
SUBJECT
This case revolves around a divorce petition under the Special Marriages Act, involving the offense of domestic violence. The appeal was put forward by the wife which stated that the common order including the proceedings arising out of the Domestic Violence Act along with the Special Marriages Act regarding the criminal revision application for the maintainability of the domestic violence proceedings.
OVERVIEW
This case revolves around the maintainability of a divorce petition under the Special Marriages Act.
It deals with the offense of domestic violence.
Its emphasis on the power to which the family court is entitled to undertake the procedure of domestic violence if they are civil.
It also showcases the power of the court to club claims which were filed separately but have overlapping issues and reliefs.
IMPORTANT PROVISIONS
1. Section 19 of Family Courts Act - This section provides for the concept of appeal under the family court. it states that according to Subsection 2 and notwithstanding anything which is contained in either the code of Civil Procedure or the code of criminal procedure or any other law an appeal can lie from every judgment or order and it does not have to be an interlocutory order off a family court to the High Court based on both facts as well as law. It also states that every appeal under this section will be preferred within 30 days from the date of the judgment or the order of the family or the order of the family court.
2. Section 12 of Domestic Violence Act - This section provides for the applications which can be submitted to the magistrate under the domestic violence act. According to this section, a victim or a protection officer, or any other individual on behalf of the victim can present an application to the magistrate to seek either one or more relief under this act, however, it is important that before any order is passed on such an application, the magistrate needs to take into account any form of domestic incident report which has to be submitted by either the protection officer or the service provider. The relief sort for it can include the issuance of an order for the payment of compensation or damages without any prejudice to the right of such a person to institute a suit for compensation or damages for the injuries which have been caused by the acts of domestic violence.
3. Section 23 of Domestic Violence Act - This section entitles the magistrate with the power to grant interim and ex parte orders. According to this section, the magistrate can pass interim orders as he deems Justin proper in any proceeding under this act. Also if the magistrate feels that an application discloses that the respondent is either committing or has committed or maybe can commit in future an act of domestic violence Then he can grant an ex parte order based on the affidavit in the form which may be prescribed under the act.
4. Section 26 of the Domestic Violence Act - This section provides for relief in suits and legal proceedings. it states that any relief which is available under sections 18, 19, 20 comments 21 and 22 of this act can we sort in any legal proceeding and before either a civil court or a family quote or even a criminal can we sort in any legal proceeding and before either a civil court or a family quote or even a criminal quote affecting the victim and the respondent whether such a proceeding was initiated either before or after the commencement of this act.
5. Section 29 of Domestic Violence Act - According to this section, an appeal can be made to the Sessions Court within 30 days from the date on which the order by the magistrate is served on the victim of either the respondent as per the case.
6. Section 24 of Code of Civil Procedure - According to this section the High Court and the District Court can transfer at any stage or even withdraw a case that is pending without specifying any grounds in the provision or even an appeal or any proceeding from any subordinate code upon the victim.
ISSUES
1. Whether the appeal is maintainable?
2. Whether the family court will have jurisdiction over this matter?
3. Whether the proceedings under different acts should be clubbed together?
ANALYSIS OF THE JUDGEMENT
A petition for divorce against the husband on the grounds of adultery and cruelty in the year 2013, this petition was filed under the provisions of the Special Marriages Act. To counter this the husband had filed a written statement along with the claim wherein he filed for divorce on the grounds of cruelty against the wife.
It was in the year 2014 that the wife had filed the proceedings of domestic violence on her husband before the judicial magistrate first class of Pune. She had initially filed a divorce petition in the year 2012 on the grounds of cruelty and adultery, however, she withdrew it within a week and then subsequently filed for the second petition in the same year after almost a week. It was after this that the husband had filed a criminal writ petition against the wife which prayed for the transfer of the proceedings that were pending on the file of the judicial magistrate at the cantonment court Pune to the family court of Pune and to club it with the petition for divorce which was filed by the wife before the family court at Pune. This petition was later allowed and it was observed by the court that the wife had sought necessary reliefs in the form of the grant of permanent physical custody of their child who was a minor along with alimony of rupees 75,000 per month under the provisions of the Special Marriage Act apart from the dissolution of her marriage. She had also filed before the court to get permanent alimony and maintenance of about two crores in her favor under the provisions of the Special Marriage Act apart from the grant of interim maintenance and the payment of damages against her husband.
1. The court held that there exists no merit in the primary objectional which has been raised by the respondent regarding the maintainability of the appeal which was filed by the appellant challenging the reliefs which was granted by the family which was granted by the family court in the application that was filed by the respondent under the provisions of the domestic violence act on the transfer of the case to the family court along with the petition for divorce which had been filed by the respondent. The court stated that it was presented by the council for the respondent that under Section 19 clause two i.e. 19(2) of the Family Courts Act no appeal is maintainable under chapter nine of the Criminal Procedure Code. The council also mentioned that as per section 19 clause 5 i.e. 19(5) of the family courts act except for those orders which are appealable under section 19 no other appeal or revision can we file do any court from any order or decree of a family court. He further mentioned that the said order which has been passed by the family court in the criminal miscellaneous application can only be challenged by the way of criminal revision application under Section 397 of the Code of Civil Procedure and not Section 19 of the Family Courts Act, he utilized the case of ‘Nandkishor Pralhad V. Mangala' to emphasize on these points. The council also mentioned that the proceedings under the provisions of clause one Section 28 of the Domestic Violence Act a similar to the proceedings initiated under Section 125 of the code of criminal procedure and for this he relied upon Rule 6(5) of the family court rules. He stated that as per Section 29 and Section 12 of the Domestic Violence Act the application which has been filed by the respondent to the magistrate was under Section 12 of the act and so any order which is passed under such provisions will be appealable before the Sessions Court under Section 29 of the act. The family court held that since the respondent had failed to prove that the apple and was involved in an adulterous relationship with a woman outside his marriage however she was able to prove that the appellant had treated her with cruelty and thus she was entitled to the decree of divorce. On the other hand, the appellant was unable to prove that the respondent had cruelly treated him or he was subject to cruelty which ended up with him not getting the custody of their son as he was also unable to prove that the respondent was of an incurable unsound mind and she had a mental disorder of such a kind and to such an extent where the appellant couldn't live with her. The claim of damages which was made by the respondent had been rejected by the family court as she was not able to prove that the appellant was involved in an adulterous relationship with some other woman outside his marriage
2. It was the order of this court of the year 2018 that stated that the application filed by both the parties had an overlapping of certain reliefs. It was mentioned that the reliefs which were sought in the petition before the family court word to dissolve the marriage along with other reliefs while those under the domestic violence act word overlapping with some of the reliefs that had been claimed before the family court. It was also mentioned that the reliefs concerning the residence order or the restraining order for the residential house in Pune where the respondent was residing was not sought in the proceedings before the family court and thus this court stated the order which adverted to the provisions of the family courts act along with the provisions of the domestic violence act by holding that the two enactments provide for remedies and reliefs which override each other. It is the forum of family court which has been established by the family courts act which states that the family court is competent to exercise the jurisdiction which is exercisable by any District Court or any court which is a subordinate Civil Code under the law for the time being enforce concerning suits and proceedings of nature which are referred two in the explanation according to Section 7 along to exercise such type of jurisdiction under the law will be deemed to be a District Court or as per the case a subordinate special code for the area to which the jurisdiction of the family court will extend. This section helps in enumerating the nature of the suit and the proceedings that have been included in the respect of which there will be the jurisdiction of the family court. It is subsection two of Section 7 which states that when subject to other provisions of this act the family court will also have the jurisdiction exercisable by a magistrate belonging to the first class under chapter nine of the code of criminal procedure.
3. It was submitted by the council for the appellant that the two proceedings which word under the Special Marriage Act and the Domestic Violence Act could be clubbed together and dealt with by the same and dealt with by the same quote which is the family quote as it is empowered to deal with the said proceedings in a manner which will help in serving the interest of justice along with the interest of parties in a better manner. They also mentioned that the intention of this prayer was not to deprive the respondent of any relief that she had sought for in whole proceedings for domestic violence but they are merely contending that it could be decided before the family court effectively and the court can do so by directing the parties to lead common evidence in the support of the reliefs which are overlapping. It had been already held by the court that the reliefs which were sought before the magistrate by the respondent in the proceedings of domestic violence can effectively be tried and also granted by the family court and it was held that the court which is competent enough to grant final relief also has the competence to grant the interim form of relief or even to protect the subject matter of the proceedings which have been put before it. The court held that as per the power mentioned under section 24 of the code of Civil Procedure and to avoid the multiplicity of litigation along with focusing on the interest of the parties this power can be utilized and the proceedings can be clubbed together. The counsel for the appellant utilized the case of ‘Mr. Santosh Machindra Mulik V. Mrs. Mohini Mithu Choudhari' where the court had stated that to avoid any form of conflicting conclusions in the two proceedings respectively under the Special Marriage Act and the provisions of the domestic violence act along with various other relief’s, it was based on this that the court decided to club both the proceedings in the criminal rate petition which had been filed by the appellant. It was also submitted that it is not just the case of the respondent that even if the appellant would have filed a criminal revision application against the order which had been filed by the family court then the reliefs which are mentioned under the provisions of the domestic violence act what granted and both the proceedings which were arising out of the order could have been clubbed by the court after they had obtained an administrative order from the Honourable Chief Justice.
CONCLUSION
This judgment is a very clear example of the fact that the proceedings of okay related to divorce can be very intricate and lengthy but it does not mean that justice will not be served to those who deserve it. Our judicial system focuses on the fact that every citizen of our country is guaranteed a set of basic rights and apart from these rights every citizen irrespective of their gender or caste or the religion that they follow is a short justice no matter what their problem is and as much as we agree to the fact that justice delayed is justice denied, there has been a vast improvement wherein the judges themselves understand this concept and focus on ensuring that the proceedings do not take unnecessarily long and ensure justice along with the necessary damages and reliefs to the victim.
However, we cannot limit ourselves to this because there is still a very vast scope for improvement and we need to set up a system wherein things do not get so complicated and cases do not take long periods. This case also teaches us that mere claims by a woman who is supposed to be a victim will not be enough until she's able to prove what she contends. it also enlightens us with the power that is entitled upon the civil and subordinate courts to take the necessary action when required and ensure that cases are being treated with due importance.
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