Mere Pendency Of Maintenance Petition Before Family Court Does Not Confer Jurisdiction To Adjudicate DV Act Proceeding: Punjab & Haryana HC
The Court held that jurisdiction is conferred by statute and cannot be assumed on the basis of convenience.
Justice Mandeep Pannu, Punjab & Haryana High Court
The Punjab and Haryana High Court has held that the mere pendency of a maintenance petition between the parties before a Family Court does not confer upon it the jurisdiction to entertain and adjudicate an independent proceeding instituted under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act).
The Court observed that Section 26 of the DV Act only enables an aggrieved person to seek reliefs under Sections 18 to 22 in proceedings already pending before a Civil, Family or Criminal Court. This power cannot be equated with the original jurisdiction to entertain an independent Section 12 application, which is vested in the Magistrate under Section 27.
The Court dismissed a husband’s application seeking transfer of the domestic violence case filed by his wife from the Judicial Magistrate First Class, Gurugram to the Family Court, Gurugram, where a maintenance petition between the parties was pending.
The Bench of Justice Mandeep Pannu observed, “It is, therefore, held that the mere pendency of a maintenance petition between the parties before the Family Court does not confer upon that Court the jurisdiction to entertain and adjudicate an independent proceeding instituted under Section 12 of the DV Act. The proposed transfer, if allowed, would amount to placing the said proceeding before a forum which has not been vested with the requisite original jurisdiction under the statutory scheme.”
Advocate Karan Kaushal appeared for the Applicant, while Senior Advocate Kshitij Sharma appeared for the Respondent.
Brief Facts
A transfer application was filed under Section 24 read with Section 151 of the Code of Civil Procedure, 1908 and Section 7 of the Family Courts Act, 1984, seeking transfer of a domestic violence case filed by the wife, pending before the Judicial Magistrate First Class, Gurugram, to the Family Court, Gurugram. A petition under Section 125 CrPC (Section 144 BNSS) between the same parties was pending before the Family Court.
Contentions of the Parties
The husband contended that the allegations and factual background in both proceedings substantially overlapped, and that continuing them before different courts would result in multiplicity of litigation, unnecessary expenditure and conflicting findings. He argued that the Family Court is competent to grant reliefs under Sections 18 to 22 of the DV Act in view of Section 26, and relied on the Bombay High Court’s decision in Rohan Shah v. Nishigandha Shah, which permitted such a transfer.
The wife contended that an independent Section 12 application is maintainable only before the Judicial Magistrate First Class, the forum specifically designated under the statute, and that Section 26 does not confer concurrent jurisdiction on the Family Court. She argued that the transfer would deprive her of the statutory procedure and appellate remedy under the DV Act.
Observations/Findings of the Court
Examining Sections 12, 27 and 28 of the DV Act, the Court noted that the statutory scheme makes a specific provision for the forum before which an independent Section 12 application is to be instituted and the procedure governing it.
On Section 26, the Court observed, “The power to grant certain reliefs under the Act in an already pending proceeding cannot automatically be equated with the jurisdiction to entertain and adjudicate an independent application instituted under Section 12 thereof.”
The Court noted that the Kerala High Court in Vineet Ganesh v. Priyanka Vasan and the Delhi High Court in Aseem Khanna v. Akanksha Dua had held that such proceedings cannot be transferred to a Family Court, while the Bombay High Court in Rohan Shah v. Nishigandha Shah had taken a contrary view. It observed that the Delhi High Court had specifically considered Rohan Shah and the Kerala High Court’s view before reaching its conclusion.
Referring to Shaurabh Kumar Tripathi v. Vidhi Rawal, the Court noted that the Supreme Court had clarified that Section 26 does not confer upon a Civil or Family Court the jurisdiction to entertain an independent Section 12 application. On the civil nature of DV proceedings, the Court observed, “The nature of the reliefs sought and the nature of the forum having jurisdiction to entertain the original application are separate considerations.”
Rejecting the reliance on Section 7 of the Family Courts Act, the Court held that the Family Court’s competence to decide a maintenance petition does not mean that it acquires jurisdiction over every other proceeding between the parties, particularly one for which a separate forum is prescribed under a special enactment.
The Court further held that overlapping allegations, common evidence or the apprehension of conflicting findings cannot override the statutory scheme. It noted that the legislature, through Section 26, has itself provided a mechanism to seek DV Act reliefs in proceedings pending before a Family Court, so multiplicity of litigation can be avoided to the extent permitted by the statute.
On the plea of inconvenience and expense, the Court observed, “The jurisdiction of a court is conferred by statute and cannot be assumed merely on the basis of convenience or consent of the parties.”
Accordingly, the Court dismissed the transfer application and directed the parties to appear before the Judicial Magistrate First Class, Gurugram, on the date already fixed, clarifying that its observations are not an expression of opinion on the merits of the pending proceedings.
Cause Title: XXXX v. YYYY [Neutral Citation: 2026:PHHC:200211]
Appearances:
Applicant: Advocates Karan Kaushal and Nitesh Dalal.
Respondent: Senior Advocate Kshitij Sharma and Advocate Tamanna Banwala.