TR.P(C) No. 58 of 2012 · Kerala High Court
Case at a glance
Provisions considered
Judgment
S.S.SATHEESACHANDRAN, J. -----------------------------------------------Tr.P.(C) No.58 OF 2012-------------------------------------------------------Dated this the 28th day of March, 2012ORDERPetitioners are the respondents in a proceeding under the Protection of Women From Domestic Violence Act, 2005, for short,'the PWDV Act', on the file of the Judicial First Class MagistrateCourt- II, Ernakulam. That proceeding was initiated by therespondent herein, who is the wife of the first petitioner. Theabove petition is filed for transfer of the proceeding from the Judicial First Class Magistrate Court- II, Ernakulam to Judicial FirstClass Magistrate Court, Vaikom, under Section 24 of the Code of Civil Procedure, for short, 'the Code'.
The question emerging for consideration is whether thetransfer applied for by the petitioners under Section 24 of the Code would lie. Proceedings are before a Magistrate and itcontemplates a criminal proceeding, to which Code of CriminalProcedure is applicable. There cannot be any doubt on thatquestion having regard to sub Section (1) of Section 28 of thePWDV Act, which reads thus: Tr.P.(C) No.58/20122"Save as otherwise provided in this Act, allproceedings under sections 12,18,19, 20, 21, 22and 23 and offences under Section 31 shall begoverned by the provisions of the Code of CriminalProcedure, 1973 (2 of 1974)."However, the learned counsel for the petitioners relying on Sub Section (2) of the above said Section contends that when anapplication is moved under Section 12 or under sub Section (2) of Section 23, the Magistrate Court can adopt a procedure as foundsuitable for disposal of such a proceeding notwithstanding whathas been stated in sub section (1) of that section. Reference isalso made to Section 26 of the PWDV Act by the learned counselto contend that in respect of an application moved under Section12 of that Act what is essentially contemplated is adjudication of acivil right by the Magistrate and, as such, it is open and more sonecessary to follow the procedure covered by the Code as welland not exclusively that of the Code of Criminal Procedure. Thatbeing so, according to the counsel, a request for transfer under Section 24 of the Code to transfer an application filed under Section 12 of the PWDV Act from one Magistrate Court to anotheris perfectly entertainable.
After looking into the relevant provisions of the PWDVAct, on which reliance is placed by the counsel, I find that what Tr.P.(C) No.58/20123has been stated under sub Section (2) of Section 28 is only ofconferring an authority on the Magistrate to dispose theapplication adopting a procedure which is recognised by law, andnot of conferring any right on a party nor enabling any such partyto contend that the Code can be made applicable in the disposalof an application moved under Section 12 of the PWDV Act. Section 26 of the Act only states that pendency and considerationof any application under PWDV Act will not be a bar or interdictionto any party thereto from agitating parallel proceedings underother statutes before different forums, for claiming protection oftheir rights thereunder. At any rate, the above section does notdeal with any matter connected with the procedure to be followedin the consideration and disposal of any proceeding under thePWDV Act.
So much so, when an application under Section 12 isentertainable only before a Magistrate, and the procedure underthe Code of Criminal Procedure has been made applicable inrespect of such proceedings, the provision made under subSection (2) of Section 28 conferring an authority on the Magistrateto follow its own procedure 'for a fair disposal of such application'cannot be construed as one enabling the Magistrate to follow aprocedure different from that under the Code of Criminal Tr.P.(C) No.58/20124Procedure. Having regard to the fact that the substantive rights ofthe parties arise for adjudication, which normally require to bedetermined by a competent court of Civil jurisdiction, and theproceedings are quasi civil in nature, an enabling provision hasbeen made under sub Section (2) of Section 28 for a fair disposalof the petition moved under the PWDV Act making it clear that therigours and interdictions under the Code of Criminal Procedurewhich are normally applicable for the trial of an offence should notbe given too much weightage in disposing such petitions.
Thatbeing so, I find that the application for transfer in respect of aproceeding under PWDV Act, which has been filed before aMagistrate, has necessarily to be moved as under the enablingprovisions covered by Section 407 or 408 of the Code before thecompetent forum, and not by invoking Section 24 of the Code ashas been done in the present case. Without prejudice to the right of the petitioner to move atransfer petition as provided either under Section 407 or 408 ofthe Code of Criminal Procedure, present petition is closed. Sd/-vdv S.S.SATHEESACHANDRAN, JUDGE//True Copy//P.A to Judge
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