Partly allowed

Dr. Nihal Dattatraya Devkar v. Dr. Aishwarya Nihl Devkar

Bombay HC8 Dec 2021MCA/163/2021

Case brief

AI extract

What is this about?

In this miscellaneous civil application, the High Court of Judicature at Bombay transferred Domestic Violence proceedings from the Judicial Magistrate to the Family Court to avoid conflicting orders and ensure a unified disposal of disputes involving the same parties and causes of action, citing Section 26 of the DV Act, 2005.

What did the court decide?

The Domestic Violence Miscellaneous Application No. 3996 of 2019 pending before the Judicial Magistrate First Class, Shivajinagar, Pune was transferred to the Family Court at Pune for disposal along w

Dr. Nihal Dattatraya Devkar Vs Dr. Aishwarya… — Civil Procedure and Limitation | Bombay HC (2021)

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17-MCA163-2021.DOC

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION MISC. CIVIL APPLICATION NO. 163 OF 2021

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Dr. Nihal Dattatraya Devkar...Applicant
Versus
Dr. Aishwarya Nihal Devkar...Respondent

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Mr. Tejas Hartalkar, for the Applicant.
Mr. Amol Jagtap, for the Respondent.

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CORAM: Smt. Bharati Dangre, J. DATED: 8th December 2021

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P.C.:-

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Digitally signed by ATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2021.12.09 11:00:22 +0530

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1.By the present Application filed by the Petitioner-
husband, the transfer of Miscellaneous Application No. 3996
of 2019 filed by the Respondent-wife under the Domestic
Violence Act, 2005 and pending in the Court of Judicial
Magistrate First Class, Shivajinagar, Pune is sought to the
Family Court at Pune, where the Respondent-wife has filed
Divorce Petition No. 1406 of 2019.

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The transfer is sought on the ground of avoiding
conflicting orders passed by the respective Court, since the

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Page 1 of 4

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17-MCA163-2021.DOC

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contest is between the same parties.

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2.Heard the learned Counsel for the Applicant and the
learned Counsel for the Respondent.

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3.The Application as filed by the Applicant is sought to be
opposed by the Counsel for the Respondent on the ground
that the Divorce Petition is filed five days after the DV
proceedings are instituted by the wife. My attention is invited
to an order passed in the DV proceedings on 17.12.2019
below Exhibit 10 where the learned Magistrate has restrained
the Opponent from committing any act of domestic violence
and this order is in the form of temporary restrain till final
Application below Exhibit 10 is decided. The learned Counsel
for the Respondent has placed before me the roznama of both
the proceedings and on perusal of the same I can only observe
that both the proceedings have not moved further from the
time of its filing, though in the Family Court, on an
application filed for access by the husband on 06.07.2020 the
Family Court at Pune has partly allowed the application
granting access of the child to the husband. This order is in
existence since 06.07.2020 and parties allege breach of both
the orders, i.e. the restrain order passed by the Magistrate and
the access order passed by the Family Court.

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4. The proceedings are being dragged from 2019 and it is

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Page 2 of 4

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17-MCA163-2021.DOC

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very apparent that each party is interested in prolonging the
proceedings filed by the other and this I say on perusal of the
order sheet of both the proceedings. Justice would be better
rendered to the parties if the proceedings are transferred to
one Court and the hearing shall be before the Family Court at
Pune which can exercise the powers of the Judicial Magistrate
First Class in the wake of Section 26 of the Domestic Violence
Act, 2005 which permit the proceedings to be transferred to
the Family Court. In this view, I am fortified by a reported
judgment in the case of Sandip Mrinmoy Chakraboarty
v Reshita Sandip Chakraboarty & Anr., (2018 (6)
Mh.L.J. (Cri.) 499), where I have exhaustively dealt with
the provisions of the two enactments, i.e. Domestic Violence
Act, 2005 and the Family Courts Act and held that the Family
Court is competent to exercise the jurisdiction, which could be
exercised by the Magistrate under the Domestic Violence Act,
2005, particularly in light of Section 26 of the said enactment.

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5.In light of the aforesaid legal position being applied to
the case in hand, I deem it appropriate to transfer the
proceedings from the Court of Judicial Magistrate First Class,
Shivajinagar, Pune to the Family Court at Pune where the
Divorce Petition filed by the husband is pending.

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6. Since both the proceedings are pending for more than two years, I deem it expedient to request the Judge of the

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Page 3 of 4

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17-MCA163-2021.DOC

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Family Court to culminate both the proceedings on or before
31.12.2022. Needless to state that both the parties will render
their cooperation in concluding the proceedings.

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At this stage, a request is made by the Counsel for the
Respondent that the hearing of the maintenance application
filed in the DV proceedings is scheduled before the Magistrate
in the near future and his anxiety is merely because the
proceedings are now transferred, the hearing of the said
application shall not be postponed indefinitely. By requesting
the Family Court at Pune to take up the application for
maintenance with utmost promptitude and to be concluded
on or before 31.12.2022, the interest of the Respondent can
also be protected.

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7. The Application is allowed in terms of prayer clause (a).

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8.The Judicial Magistrate First Class, Shivajinagar, Pune
shall forthwith transfer the proceedings of Criminal
Miscellaneous Application No. 3996 of 2019 pending on its
file to the Family Court at Pune.

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(Smt. Bharati Dangre, J.)

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Dr. Nihal Dattatraya Devkar v. Dr. Aishwarya Nihl Devkar

Case brief

What is this about?

What did the court decide?

Dr. Nihal Dattatraya Devkar v. Dr. Aishwarya Nihl Devkar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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