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In the High Court of Judicature at Madras
Dated : 28.3.2011
The Honourable Mr.Justice K.MOHAN RAM
CIVIL REVISION PETITION (PD) NO.3396 OF 2009
AND MP.NOs.1 and 2 OF 2009
2.Golden Construction, rep.by its
Proprietor Mr.Balasingh George
PETITION under Article 227 of The Constitution of India to call for the records in OP.No.282 of 2008 on the file of the First Additional Judge, Family Court, Chennai and dismiss the same as not maintainable.
For Petitioner : Mr.V.Bhiman for
For Respondent-1 : Mrs.Sheila Jayaprakash
For Respondent-2 : No appearance
O R D E R
The first respondent in OP.No.282 of 2008 on the file of the First Additional Judge, Family Court, Chennai is the petitioner in the above civil revision petition.
2. The petitioner herein is the husband of the first respondent. The first respondent herein filed OP.No.282 of 2008 under Sections 12 and 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 seeking the following reliefs :
"...that she been given a protection order under Section 18 of the Domestic Violence Act and the residence order under Section 19 of the Domestic Violence Act directing to return the property and the money due to the petitioner and that the respondent to be paid as Rs.15,000/- as maintenance every month under Section 21 and a compensation of Rs.10 lakhs under Section 22 of the Domestic Violence Act."
3. The said petition was contested by the petitioner herein on various grounds. In the said petition, the first respondent herein filed two applications in IA.Nos.276 of 2008 and 2535 of 2009. In IA. No.276 of 2008, an order of interim injunction was prayed to restrain the second respondent herein from handing over possession to 11-A and 11-B Golden Alteus, AK-3/4, 4th Avenue, Anna Nagar, Chennai-40 to the petitioner herein or his nominee. In IA.No.2535 of 2009, the first respondent herein prayed to raise the order of injunction dated 12.2.2008 made in IA.NO.276 of 2008 in the said petition with reference to Flat 11B, Golden Altius, Anna Nagar, Chennai-40.
4. IA.No.2535 of 2009 was disposed of by an order dated 29.9.2009, in and by which, it was allowed and the order of status quo in respect of flat No.11-B, Golden Altius, Anna Nagar, Chennai-40 granted in IA.No.276 of 2008 stood modified and the order of status quo was raised in respect of the said property. Being aggrieved by that, the petitioner is before this Court.
5. Heard both.
6. Mr.V.Bhiman, learned counsel for the petitioner submitted that the said original petition filed by the first respondent herein under Sections 12 and 18 to 22 of the said Act itself is not maintainable. Learned counsel further submitted that as per the provisions contained in the said Act, an application under Section 12 can be presented by an aggrieved person only before a Magistrate seeking one or more reliefs under the said Act and that only in an application under Section 12 of the said Act before the Magistrate, the Magistrate can grant orders under Sections 18 to 22 of the said Act. It is the contention of the learned counsel that an independent application seeking the reliefs under Sections 18 to 22 of the said Act is not maintainable.
7. Learned counsel for the petitioner herein drew the attention of this Court to Section 26(1) of the said Act, which provides that any relief available under Sections 18 to 22 may also be sought 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 this Act.
8. The said provision makes it clear that the relief provided under Sections 18 to 22 of the said Act may also be sought, if any legal proceedings before the family court is pending between the parties. Section 26 does not provide for an independent application being filed under Section 12 seeking the relief under Sections 18 to 22.
9. In support of his contention, learned counsel for the petitioner placed reliance on the decision in the case of Cap. C.V.S.Ravi Vs. Mrs.Ratna Sailaja 2009 (1) MWN (Criminal) 472}. In the said decision, it has been laid down as follows :
"The Domestic Violence Act does not contain any provisions clothing jurisdiction on the Family Court to entertain an application filed under Section 12 of the Act. It may be true that the reliefs available under Sections 18 to 22 of the Act may also be claimed in a pending proceeding before the Family Court already initiated by the aggrieved person but from that it cannot be inferred that an independent application under Section 12 of the Act can be filed before the Family Court. So only an option is given to the aggrieved person to claim the reliefs available under Sections 18 to 22 of the Act in a pending legal proceedings initiated by such aggrieved person before the Family Court and therefore from such a liberty given to the aggrieved person an inference cannot be drawn to the effect that a pending application filed under Section 12 of the Act before the learned Magistrate can be transferred to the file of the Family Court. Unless the Court has been specifically empowered to entertain an independent application filed under Section 12 of the Act, transfer of a pending application filed under Section 12 of the Act from the file of the learned Magistrate to the file of the Family Court cannot be ordered."
10. Countering the said submissions, learned counsel for the first respondent fairly submitted that from a reading of Section 26, it is correct, as contended by the learned counsel for the petitioner, that an independent application under Section 12 or Sections 18 to 22 of the said Act is not maintainable before the Family Court. But, the learned counsel submitted that subsequent to filing of the said original petition, the first respondent herein also filed OP.No.133 of 2009 in January 2009 seeking divorce and therefore, OP.No.282 of 2008 could be treated as an interim application under Section 26 of the said Act in OP.NO.133 of 2009. Learned counsel submitted that entertaining of OP.NO.282 of 2008 by the Family Court is only an irregularity and that therefore, on that ground, the order passed by the Family Court may not be interfered with. Learned counsel further submitted that the Family Court has inherent powers to treat OP.No.282 of 2008 as an interim application in OP.NO.133 of 2009 and on this ground also, the order passed by the Family Court is sustainable.
11. I have considered the aforesaid submissions of the learned counsel on either side and perused the materials available on record.
12. A reading of Section 12 makes it abundantly clear that the application under Section 12 can be filed by the aggrieved person only before the Magistrate. Section 12 does not provide for filing of an application under Section 12 before the Family Court or Civil Court. Section 26 enables the aggrieved person to seek the relief under Sections 18 to 22 of the said Act in any pending legal proceedings before the Family Court. Admittedly, when no other legal proceedings were pending before the Family Court on the date of filing of OP.NO.282 of 2008, the said original petition filed under Sections 12 and 18 to 22 seeking interim reliefs, prima facie, is not maintainable. The Family Court has no jurisdiction to entertain an independent application under Sections 12 and 18 to 22 of the said Act in the absence of any other pending proceedings between the parties.
13. In the decision rendered in 2009 (1) MWN (Crl.) 472 (cited supra) also, I have held so, but in a different context. For the aforesaid reasons, the contention of the learned counsel for the petitioner is to be upheld. The contention of the learned counsel for the first respondent that entertaining of OP.No.282 of 2008 filed under Section 12 of the said Act is only interlocutory cannot be countenanced for the reason that the Family Court has no jurisdiction to entertain the application, which goes to the root of the jurisdictional issue and as such, it cannot be considered to be an irregularity. The order passed by the Family Court in OP.NO.282 of 2008 cannot be sustained and this Court holds that the order passed in OP.No.282 of 2008 is not maintainable.
14. For the foregoing reasons, the civil revision petition is allowed. However, in view of the pendency of OP.NO.133 of 2009 filed by the first respondent herein, it is open to the first respondent to file an application under Sections 18 to 22 of the said Act in OP.No.133 of 2009 and seek appropriate relief. No costs. Consequently, the above MPs are closed.
The First Additional Family Court,