Bombay HC: Wife Can Choose To File Domestic Violence Case In Magistrate Or Family Court

Mumbai: A wife has a choice to file domestic violence proceedings before a magistrate under the Protection of Women from Domestic Violence Act (DV act) or before the Family Court (FC) under the Hindu Marriage Act, the Bombay High Court has said.

The court noted that to transfer proceedings from magistrate to Family Court would only delay the proceedings and that there is no bar to seek maintenance under both the Acts

When the case is transferred, “... this Court takes away the wife’s right to choose the forum and the exercise of powers of transfer is frought with danger, the first causality being expeditious disposal of Section 12 application by the Magistrate,” Justice Arun Pednekar said on July 9.

The court also imposed a cost of Rs10,000 on the man whom filed the plea seeking transfer of the DV case, filed by his estranged wife, from the magistrate court at Sewree to the Bandra FC. The cost is to be paid to the wife.

The man sought transfer contending that regularly courts have transferred DV cases to be heard with divorce proceedings to avoid conflict of interest, as the same facts and evidence are used in both the cases.

The court, however, observed that the question of conflict, if any, should not be used to the prejudice of the wife and her minor daughter seeking urgent maintenance and residence order.

“The transfer of DV proceeding from Magistrate court to the Family Court would further delay the proceedings. There is no bar to seek maintenance both under the DV Act and the Hindu Marriage Act and that she has to only disclose the earlier proceedings and maintenance order passed in the subsequent proceedings so as to avoid conflict of orders,” Justice Pednekar said.

The judge emphasised that the transfer application should be entertained only to meet ends of justice and care should be taken to ensure that the wife and children are not deprived of immediate maintenance and residence orders.

“If conflict of judgment on the same facts and between the same parties is the sole ground of transfer, every transfer petition filed by the husband will have to be allowed by this Court making the choice of wife to approach the Magistrate meaningless,” the judge underscored while dismissing the husband’s plea.