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2011 DIGILAW 956 (PAT)

Sri Brundaben Patra v. Rajalaxmi Patra

2011-05-03

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT S.K. Mishra, J.-The petitioners being the opposite parties in I.A. No. 29 of 2011, arising out of C.P. No. 480 of 2011 of the Court of Judge, Family Court, Bhubaneswar assailed the order dated 04.03.2011 restraining them from interfering with opposite parties possession of a portion of the building and also directing them to allow use of electricity and water supply to the portion occupied by the opposite party in this case. 2. The facts leading to filing of this writ petition are undisputed. The opposite party is the daughter-in-law of the petitioners. The husband of the opposite party died leaving behind the opposite party and her infant daughter. The opposite party has been in occupation of the first floor of the building over revenue Plot No. 1328, Mouza-Kapilaprasad in Bhimtangi area under Bhubaneswar Tahasil where she has been residing along with infant daughter. She filed an application before the learned Judge, Family Court under Section 23(2) of the Protection of Women from Domestic Violence Act. 2005, hereinafter referred to as ‘the Act’, read with Sections 18, 20 and 22 of the said Act on the allegation that after death of her husband the opposite parties, i.e., the present petitioners subjected her to cruelty to evict her from the building. They disconnected the electricity and water supply connections to the floor under her occupation on 15.01.2001 and they forced her to evict that part of the building. 3. After taking into consideration the pleadings of the parties and the affidavit filed, the trial Court was satisfied, prima facie, that the present opposite party, i.e., petitioner before the trial Judge is the wife of late Dr. Somanath Patra, son of the present petitioners. The opposite parties being the daughter-in-law and her child, being the grand daughter of the petitioners, have been in occupation of the house of their own right. However, the trial Court has observed that the present petitioners have threatened to dispossess them by disconnecting the electricity and water supply connections. However, the electricity and water supply was continued in the ground floor and the 2nd floor without any disruption. However, the trial Court has observed that the present petitioners have threatened to dispossess them by disconnecting the electricity and water supply connections. However, the electricity and water supply was continued in the ground floor and the 2nd floor without any disruption. Hence, finding disconnection of supplies to be intentional with an ulterior objective of evicting the opposite party, the trial Court ordered that the electricity and water supply be restored and in case of necessity the name of the consumer be changed to that of the present opposite party by the authorities in charge of supply of water and electricity. 4. In assailing this order, the learned counsel for the petitioners submitted that the learned Judge. Family Court has no Jurisdiction to entertain the application under Section 12 of the Protection of Women from Domestic Violence Act. 2005 and the same can be initiated before a Magistrate. Learned counsel for the petitioners also submitted that the order passed by the learned Judge. Family Court without calling for a report from the Protection Officer is illegal. Therefore, it is submitted that the order passed by the learned Judge. Family Court is without jurisdiction. Hence, he prayed to set aside the same. Learned counsel for the opposite party, however, contended that the learned Judge. Family Court has Jurisdiction to decide the case and hence there is no justification to interfere with the order passed by the learned trial Judge. Learned counsel for the opposite party relying on M. Palani v. Meenakshi, 2008 (65) AIC 686 (Mad) submitted that when a civil Court passes the order under Section 12(1), it is not necessary to look into the report submitted by the Protection Officer. Similarly, the opposite party relied upon the reported cases of Pramodini Vijay Fernandes v. Vijay Fernandes, 2010 (93) AIC 405 (Bom), Alexander Sambath Abner v. Miron Lede and another, 2010 (87) AIC 385 (Mad), Mohit Yadam and another v. State of A.P. and others, 2010 (3) Cri CC 431 (A.P.) and submitted that an application under Section 7(1) of the Family Court Act read with Section 12 of the Act, 2005 is maintainable before the learned Judge. Family Court, However, the learned counsel for the petitioners has relied upon the reported case of Smt. Neetu Singh v. Sunil Singh, AIR 2008 Chh 1, wherein the Chhattisgarh High Court has held that the aggrieved wife cannot move an independent fresh application under Section 12 of the Act. Such an application can only be entertained by a Magistrate having jurisdiction and it is not maintainable before the Judge, Family Court. 5. An examination of the provisions of the Domestic Violence Act reveals that it is an Act intended to provide for more effective protection of rights of women granted under the Constitution, who are victim of violence of any kind occurring within the family and for matter connected therewith or incidental thereto. Section 3 among other definitions also defines different type of abuses like physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. Economic abuses includes deprivation of all or any economic or financial resources in which the aggrieved party is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to shared household and maintenance. It also includes the disposal of household effects, any alienation of assets in which the aggrieved party has an interest or is entitled to use by virtue of the domestic relationship or may be reasonably required by the aggrieved person or her children or her stridhan or any property. It also includes prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to shared household. Chapter-3 of the Act contains Section 4 to 11 which provides for powers and duties of protection officer, service providers, etc. This chapter is not relevant to the present case. Chapter-IV provides for procedure for obtaining orders or relief. Section 12 of the Act provides that an aggrieved person or a protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under the Act. In the proviso it lays down that before passing an order on such an application. Section 12 of the Act provides that an aggrieved person or a protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under the Act. In the proviso it lays down that before passing an order on such an application. Magistrate shall take into consideration any domestic incident report received by him from the protection officer or the service provider. Sub-section (2) of Section 12 provides that the relief sought for under sub-section (1) may also include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injured caused by the act of domestic violence committed by the respondent. The proviso to sub-section lays down that such amount of compensation or damages shall be set off against the amount payable under such decree passed under the Code of Civil Procedure, 1908 or any other law for the time being in force. Sub-section (4) provides that the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. Sub-section (5) provides that the Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing. Section 13 provides for procedure of service of notice. Section 14 provides for counseling. Section-15 provides for assistance of welfare expert. Section 16 provides for holding of procedure in camera. Section 17 provides for right to reside in a shared household. In sub-section (1) of the said section, it is provided that notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. Sub-section (2) provides that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. Sub-section (2) provides that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. This section lays down that irrespective of any contrary provision in any other law, every woman in a domestic relationship shall have the right to reside in the shared household and the aggrieved person shall not be evicted or excluded from the shared household by the respondent except in accordance with the procedure established by law. This is non obstante clause as is evidence from the use of words appearing in sub-section (1) “i.e. notwithstanding anything contained in any other law for the time being in force”. Thus, it appears that the Parliament in its wisdom thought it proper to enact a law to give proper rights to the women in a domestic relationship and provides for effective measures for implementing such right. It is a very progressive piece of legislation and has to be construed keeping in view growing violence against women in the present day Indian society. In the present case there appears to be a violation of the right conferred on the opposite party to reside in a shared household on a property held jointly. Section 18 provides for protection orders, which can be passed by the Magistrate. Section 19 provides for order relating to residence. Section 20 provides for monetary relief. Section 21 provides for a custody orders. Section 22 provides for compensation order. Section 23 provides for grant of interim and ex parte order. In sub-section (1) it is provided that in any proceeding before him under the Act, the Magistrate may pass such interim order as he deems just and proper. Sub-section (2) of Section 23 provides that if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, has committed an act of domestic violence or that there is likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Sections 18, 19, 20, 21 or 22. Section 27 provides for jurisdiction. Section 27 provides for jurisdiction. Sub-section (1) of Section 27 lays down the Court of Judicial Magistrate of first class or the Metropolitan Magistrate, as the case may be, within the local limits of which an aggrieved person permanently resides etc. The Magistrate, first class has the jurisdiction to grant protection order and other orders under the Act and to try offences under the Act. However, Section 26 provides for relief in other suits and legal proceedings. Sub-section (1) of Section 26 provides for any relief available under Sections 18, 19, 20, 21 and 22 may be sought in 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 the Act. Sub-section (2) of the said section provides that any relief in sub-section (1) may be sought in addition to and alongwith any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. Sub-section (3) of the said section provides that in case any relief has been obtained by the aggrieved person in any proceeding other than a proceeding under the Act, she shall be bound to inform the Magistrate of the grant of such relief. 6. Thus, a plain reading of the provisions of the Act reveals that the Indian Parliament in its wisdom thought that the existing law governing the field was inadequate to protect women from domestic violence and, therefore, enacted this particular piece of legislation for more effective protection of rights of women which is granted under the Constitution. who are victims of any kind abuse occurring within the family and for matters connected therewith or incidental thereto. This is a piece of progressive legislation and the provisions of the Act has to be interpreted accordingly. From the different provisions discussed above, it is seen that the Indian Parliament has left no scope for refusing any relief on technical grounds. However, since the question of lack of jurisdiction is raised in this case, we come to the conclusion that the learned Judge, Family Court has jurisdiction under this Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding before it. However, since the question of lack of jurisdiction is raised in this case, we come to the conclusion that the learned Judge, Family Court has jurisdiction under this Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding before it. In other words, the original and independent proceeding under the Domestic Violence Act cannot be initiated in the Family Court. An independent and original proceeding under Section 12 of the Act for various reliefs as described in the preceding paragraph is maintainable before the Judicial Magistrate. First Class and thus, the application filed before the learned Judge, Family Court is not maintainable. 7. However, keeping in view the very objective of the Act itself and the fact that the Court should not take recourse to hide behind technicalities and refuse substantial relief to the parties and its order should be tampered with the concept of Justice, this Court comes to the conclusion that instead of quashing the entire proceedings, it shall be proper to transfer the proceedings pending before the learned Judge, Family Court to the Court of JMFC, Bhubaneswar with a direction to try and dispose of the application filed by the opposite party as early as possible, preferably within a period of one month from the date of appearance of the parties before it. Since the interim order has been passed, this Court is of the opinion that such order is just and proper though without jurisdiction. The Civil Proceeding No. 480 of 2011 be transferred from the Court of Judge, Family Court to the Court of JMFC, Bhubaneswar who is trying UTP cases. The parties are directed to appear before the said Court on 20.05.2011. The learned Judge, Family Court shall transmit the record so as to reach the Court of JMFC at least three days prior to the appearance of parties on the aforesaid date. The Magistrate may change the nomenclature and register it as a criminal case. The Writ petition is accordingly disposed of. This judgment be communicated to the lower Court immediately. L. Mohapatra, J.-I agree. Petition disposed of.