SATYAJIT PADHI Vs. JOGAMAYA PATI

JUDGEMENT

(1.) Two appeals are before us for adjudication. They have been filed by the husband. First is MATA no.89 of 2022 preferred against order dtd. 5/4/2022 of the family Court allowing, on contest, the petition of respondent-wife for restitution of conjugal rights. The other appeal is MATA no.217 of 2022 preferred against order dtd. 16/9/2022 by said Court on the application filed by respondent-wife under Sec. 12 of Protection of Women from Domestic Violence Act, 2005. On query from Court Mr. Parida, learned advocate appearing on behalf of appellant-husband submits, the application under the Act of 2005 was presented before the Magistrate on 22/6/2018. On further query from Court he submits, the petition under Sec. 9 in Hindu Marriage Act, 1955 was presented by respondent-wife on or before 27/11/2017, date on which first order was made by the family Court on it.

(2.) It appears appellant-husband applied for transfer of the domestic violence case to the family Court, already in seisin of the civil proceeding filed by respondent-wife under Sec. 9. By order dtd. 7/3/2022 in TRP (Crl. no.09 of 2022) (Satyajit Padhi v. Jogamaya Pati) a learned single Judge of this Court transferred the criminal case to the family Court. We reproduce below paragraph 5 from said order.

(3.) Code of Criminal Procedure, 1973 by Sec. 407 provides for power of High Court to transfer cases and appeals. Inter alia, there is provision for a particular case to be transferred from a criminal Court subordinate to its authority, to any other such criminal Court of equal or superior jurisdiction. We mention this provision because by the transfer order the criminal case was not transferred to the High Court itself but to the family Court. Said Court not being a criminal Court was recipient of the domestic violence case, obviously on reliance of above passages in Rajnesh v. Neha (supra). Family Courts Act, 1984 by Sec. 7 provides for its jurisdiction with explanation by several clauses thereunder. None of them include within their scope a criminal case initiated before the Magistrate under the Act of 2005. We address this complication because the Act of 2005 by Sec. 29 provides for appeal from an order passed by the Magistrate under Sec. 12, to the Court of Sessions. MATA no.217 of 2022 being appeal from a domestic violence case is before us since the family Court passed impugned therein order and under Sec. 19 of the Family Courts Act, 1984, appeal lies to this Court.