SUDHANNAYA Vs. UMASHANKAR VALSAN

JUDGEMENT

(1.) UNDER challenge in this Writ Petition filed under Article 227 of the constitution by the petitioner who is the wife of the respondent is Ext. P4 common order passed by the Family Court in I.A. No. 961/07 in OP 751/07, IA No. 178/08 in IA 961/07 in OP 751/ 07. Apart from the prayer to set aside Ex. P4, the following prayers are also sought in this Writ Petition:

(2.) WE find that the petitioner filed OP 751/07 before the Family Court, Kannur under Section 18(2) of the Hindu Adoptions and Maintenance Act, 1956 for past maintenance. LA. 961/ 07 was filed by her under Section 26(1) and(2) of the Protection of Women from Domestic Violence Act, 2005. The prayer in the above IA was for relief under Sections 18 and 19 of the D.V. Act, 2005 i.e. a residence order to reside in the shared house and a protection order restraining the respondent from committing Domestic Violence. Ex. P1 produced along with the OP is copy of the Original Petition. Ex.P2 is copy of the affidavit filed by the petitioner in support of the IA 961/07, IA 178/08 was filed as an IA in IA. 961/07 under Section 18(e) of the D.V. Act for protection order and for prohibiting alienation of the house situated in Bangalore. Ex.P3 is Copy of the affidavit in support of the IA 178/08. By Ex.P4 the learned Family Court dismissed both the IAs taking the view that the Family Court, Kannur does not have jurisdiction to pass an interim order under Section 18 and 19 of the D.V. Act, 2005. The petitioner points out that she had filed a petition under Section 12 of the D.V. Act for relief under Sections 18, 19, 20, 22 and 23 (2) of the D.V. Act before the Additional C.J.M's Court, Thalassery as M.C.51/07. Petitioner filed Tr.P.(Cri). 80/07 seeking transfer of the above M.C. Ex.P5 is copy of the order in the above Transfer Petition which was dismissed by the High Court mainly on the reason that in the light of the decision in Mony v, Leelamma1, the prayer to transfer a case from the Criminal Court to Family Court may not be maintainable, after recording the submissions of the counsel for the petitioner that the Family Court has the requisite legal competence under Section 26 of the D.V. Act to grant relief which are grantable under the D.V. Act and petitioner intends to seek relief from the Family Court. The petitioner submits that in the light of the observation in Ex. P5 that the petitioner is at liberty to seek relief from the Family Court under Section 26 of the D.V. Act if so advised. The petitioner filed Ext. P6 affidavit before the C.J.M's Court with a prayer to close or dismiss the proceeding before the C.J.M's Court as not pressed without prejudice to the petitioner's right to file similar petition before the Family Court.

(3.) WE have heard the submissions of Sri. Kaleeswaram Raj, the learned counsel for the petitioner and those of Sri. S. Rajeev, the learned counsel for the respondent. Our attention was drawn by Sri. Kaleeswaram Raj to the judgment of this Court in Sathyabhama v. Ramachandran2 and submitted that while disposing of an application under Section 125 Cr.P.C the Family Court will function as a criminal court. Sri Raj referred to certain passages in Anish Antony v. Neetha3,a decision which takes the view that proceedings pending before the magisterial 2. 1997(2) KLT 503. 3. 2011 (3) KLT 409. court under the provisions of DV Act cannot be transferred to Family Court where proceedings for divorce are pending. Sri Raj also referred to the relevant statutory provisions under Sections 12, 18, 19, 20, 22 and 23 (2) of the DV Act and more importantly Sections 26(1) and 26(2) of the same statute. Our attention was drawn by Sri Raj also to the decision of the Bombay High Court in Mrs. Pramodini Vijay Fernandes v. Mr. Vijay Fernandes4, of the Madras High Court in Palani v. Meenakshi5 and Natchathiram v. Vanitha & others.6