Domestic Violence case pending before Magistrate cannot be transferred to family court: Kerala High Court

As per the DV Act, relief can be sought by only a woman who is subjected to any act of domestic violence in a marriage, or through a relationship in the nature of marriage, etc., the High Court noted.

The Kerala High Court recently held that domestic violence cases pending before a Magistrate cannot be transferred to a family court [Vineet Ganesh v Priyanka Vasan].

A division bench consisting of Justices Anil K Narendran and PG Ajithkumar held so after noting that the scheme of the Protection of Women from Domestic Violence Act (DV Act) is such that an aggrieved person is ensured more effective protection through the forum of a criminal court and therefore, the judicial magistrate has jurisdiction over cases under the Act.

The intention of the Legislature to confine the jurisdiction to entertain an application under Section 12 of the D.V. Act to the Judicial Magistrates is clear from provisions in the Act. As long as the Family Court or, for that matter, other civil courts cannot have original jurisdiction to entertain an application under Section 12 of the D.V. Act, no application under Section 12 pending before a Magistrate can be transferred to a Family Court“, the Court said in its judgment.

The Court was considering an appeal filed by a man who wanted to transfer the proceedings initiated against him under Section 12 of the DV Act and pending before a Magistrate, to a family court.

Section 12 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 reliefs under the Act”.

The man contended that since the proceedings under Section 12 of the DV Act are civil in nature and therefore, there is no bar in transferring the case to the family court.

After examining various precedents on the subject, the High Court noted that the preamble of the DV Act is enacted to provide for more effective protection of the rights of women guaranteed under the Constitution of India and they alone can file applications under Section 12 of the Act.

If the person against whom the woman files a case is then allowed to get it transferred to a family court or civil court by taking recourse to Section 12, it would be to the detriment of the woman, the Court opined.

When women alone are given that right, allowing a respondent in an application under Section 12 of the Act to get the application transferred to a Family Court or other civil court will amount to denial of the special right conferred upon the aggrieved women. Often that will result in facilitating the respondent to pin down the aggrieved woman to a forum which may be totally inconvenient to her” the Court said.

The Court, therefore, refused to transfer the case and proceeded to dismiss the appeal.

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