SANTOSH MACHINDRA MULIK Vs. MOHINI MITHU CHOUDHARI

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) This Misc. Civil Application seeks transfer of a criminal proceeding filed under Section 12 of Domestic Violence Act, 2005 ("Act") (Criminal M.A. No.4832 of 2018) and pending before the Court of Judicial Magistrate, First Class, Pune to the Family Court at Pune to be tried along with a pending divorce petition between the parties (P.A. No.1403 of 2017). It is submitted that the Criminal Misc. Application was filed by the Respondent-wife after the divorce proceeding was served on her and after she filed a written statement in the proceeding. It is submitted that in the interest of justice, particularly, having regard to Section 26 of the Act, the Criminal Misc. Application may be transferred to the Family Court at Pune, where both proceedings can be conveniently tried by that court.

(3.) Learned Counsel for the Respondent opposes the application. Learned Counsel submits that the Family Court has no authority or jurisdiction to consider a domestic violence proceeding filed under Section 12 of the Act. Learned Counsel for the Applicant relies on two judgments of our courts, namely, Sandip Mrinmoy Chakraboarty Vs. Reshita Sandip Chakrabarty, 2018 SSC OnLine Bom 2709 and Minoti Subhash Anand Vs. Subhash Manoharlal Anand, Misc.C.A. No.255 of 2015 decided on 10 Dec. 2015 in support of his application for transfer. In these judgments, learned Single Judges of our court had allowed transfer of domestic violence proceedings from the files of Judicial Magistrates to Family Courts, relying on Section 26 of the Act. Section 26 provides for relief available under Sections 18, 19, 20, 21 and 22 of that Act being capable of being sought in pending legal proceedings before family courts affecting the aggrieved person and the respondent, whether such proceedings were initiated before or after the commencement of the Act. In response, learned Counsel for the Respondent relies on a Division Bench judgment of Chhattisgarh High Court in case of Smt. Neetu Singh Vs. Sunil Singh, AIR 2008 Chhattisgarh 1. Relying on this judgment, it is submitted that the option to proceed before a family court in a pending matrimonial proceeding under Section 26 of the Act is available to the aggrieved party, who is the respondent in the present case. It is submitted that if the Respondent does not choose to avail of this option, it cannot be thrust on her.