Priya Gour
Published on: 3rd August, 2022 at 19:16 IST
The Madras High Court recently held that if the victim agrees, the cases of domestic violence can be transferred to another court. The Bench of Justice M Duraiswamy and Justice Sunder Mohan was answering a reference made by two Single Judge Benches of Justice R Subramanian and Justice K Murali Shankar.
It noted that the intention of legislature while enacting the Protection of Women from Domestic Violence Act was to ensure & provides women with civil remedies by taking assistance of criminal procedure.
References made before the Bench related to the P.Ganesan v. M.Revathy Prema Rubarani:
- Nature of proceedings under the Protection of Women from Domestic Violence Act before the Magistrate Court- CIVIL OR CRIMINAL ?
- Whether Section 468 of CrPC, applies to such proceedings?
- Can High Court exercise its power under Section 482 of CrPC, if they are civil ?
- Period of limitation for initiating such proceedings?
- Question of transfer of the proceedings pending before the Magistrate Court to Civil Court or Family Court, by invoking Article 227 of the Constitution of India.
With respect to the first reference, division bench opined that already in the decision of the Supreme Court in the case of Kunapareddy v. Kunapareddy Swarna Kumari it was held that the proceedings under the domestic violence act shall be civil nature. The proceedings under Chapter IV of the Domestic Violence Act are civil in nature. Penal actions are only a consequence if the orders are not adhered to.
The Bench noted, “The Domestic Violence Act was intended to provide additional remedies under civil law for such offences in the nature of prohibitory orders, right to get compensation, right from being dispossessed from shared household etc, which is alien to criminal law.”
On the question of applicability of Section 468 under DV Act, the Bench ruled that there shall be no such application. The court made a similar reference of Kamatchi v. Lakshmi Narayanan case in this regard.
Which regards to the limitation time continuation, the Court said that the Domestic Violence Act does not prescribe any limitation for the proceedings. Most acts under Section 3 of the Act are continuing civil offences. Section 22 of the Limitation Act says that for continuing torts, a fresh period of limitation begins to run. The Court said, “It is also not possible for us to invoke Article 137 of the Limitation Act, even though, we find that the application is for civil remedies.”
The Court in respect of transfer of cases said that there are conflicting opinions on whether the High Court could exercise its power under the Article 227 of the Constitution. The Court noted that the proceedings under the Domestic Violence Act are civil in nature, and so can be tried before Family Court as well. Subjected to the condition that the victim’s consent is a must. The Bench noted:
“The Act is unique in as much as it provides for procedure, which are normally adopted in Criminal Cases, to adjudicate Civil Rights. The Provisions of the Act will make it clear that it was the intention of the Legislature to provide special procedure, probably to give teeth to the Civil Law remedies.”
The Court said the case could not be transferred at the instance of the Respondent but could be transferred at the instance said the victim.
The Court concluded the reference case:
“…proceedings under Domestic Violence Act cannot be transferred from the Magistrate Court to the Family Court or any other Civil Court, at the instance of the Respondent as the aggrieved person has a right which is conferred on her under Domestic Violence Act to have her claims addressed is distinct and effective.”