;l H|GH C""RT OF CH"ATTSSGARH.BILASPUR F5rstADDea|Nn108of2006 Smt Neetu Singh Versus Sunil Singh Jiidqment ^*- ^nsideratiw^ Sd/- L.C. Bhadoo Judge Hpn'hi- chr. ir^ir-e SunilKiimar Sinha Sd/- Sunil Kumar Sinha Judge Post for judgment on^l-09"20QT Judge ^7 -09-2007 ^-f '^ HIGH COURT OF CHHATTISGARH, BILASPUR c- FirstAopeal No.108 of 2006 APPELLANT: -Versus- RESPONDENT: Smt. Neetu Singh, aged 28 years, W/o Sunil Singh, R/o I.T.i. Campus, Koni, Bilaspur, District Bilaspur (C.G.) Sunil Singh, aged 32 years, S/o M.L. Singh, ' R/o Nirala Nagar, Brahma Kumari Ashram, Bilaspur (C.G.) Present: - Shri Rahul Birtharey & Shri Sachin Singh Rajput, Advocates: Shri Anurag Dayal Shrivastava, Advocate: For the appeliant. For the respondent. DIVISION BENCH*: - HON'BLESHRI LC. BHADOO AND HON'BLE SHR! SUNIL KUIVIAR SINHA. JJ. JUDGMENT (Delivered on 2-^M'september. 2007) The fotlowina iudament of the Court was delivered bv t.C. Bha^oo. J: - 1. By this appeal under Section 19 (1) of the Family Courts Act, 1984, appellant Smt. Neetu Singh has questjoned jegality and correctness of the order dated 15-6-2006 passed by the Judge, Family Court, Bilaspur on an application filed by the appellant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as (the Act, 2005') whereby Jearned Judge, Family Court held that since appjication has been filed under Section 12 ofthe Act, 2005, which ought to have been filed before the Magistrate and the relief sought for falls under the jurisdiction of the Civil Court, therefore, it be returned to the appellant for filing the same before the competent Court having jurisdiction. 2. Brief facts necessary for the disposal of this appeaj are that the appellant herein filed an appficati'on under Section 12 of the Act, 2005 read with Section 7 of the Famiiy Courts Act, 1984, In the Court of Judge, Family Court, Bilaspur on 13-6-2006 with the averments that the appellant was married to respondent on 28-4-2003 as per the Hindu custom. Just after the marriage, her in-laws started treating her with inhuman, cruel and neg!ect behaviour. In connection with demand of money in-!aws started the appellant & she was thrown out of the matrinionial house, against which reports were in the PolEce Station on 7-8-2003 & 16-9- 2004. On 9-11-2004, the appeilant sent a notice to the respondent reminding him about his matrimonia! duties, thereafter the appellant filed an application under Section 125 of the Cr.P.C. in the Court of Chief Judicial Magistrate, Bi!aspur, from where same has been transferred to the Family Court, Bilaspur. The Famiiy Court vide its order dated 20th April, 2005 passed an order for interim maintenance to the tune of Rs.1500/- per month. Her husband Is earning about Rs.20,000/- per month. The in-iaws have refused to return her articles which were given to her by her parents in her marriage. On the contrary, they have Sevelled false allegatjon of character assassination against the appellant, complaint of which was made by her in the Police Station. Ultimately, the appetlant demanded Rs.2 lakhs which were spent by her parents on arrangement of the marriage i.e. on tent, shamiyana & food, an amount of Rs.1,56,792, value of artides, which were given to her in the dowry and Rs.1 lakh for subjecting her to cruelty and character assassination. On 15-6-2006, the learned Judge, Family Court, in the presence of the appellant, passed the impugned order. 3. We have heard Shri Rahu! Birtharey & Shri Sachin Singh Rajput, counse! for the appellant and Shri Anurag Dayal Shrivastava, counsel for the respondent. 4. Learned counsel for the appellant inviting attention of the Court towards the provisions of Section 26 of the Act, 2005, argued that the Fami!y Court js competent to entertain the said appiication as per the provisions of Section 26 ofthe Act, 2005, therefore, order impugned suffers from illegality. 5. In order to appreciate the controversy, in our opinion, it would be beneficial to have a glance on the relevant provisions of the Act, 2005. Section 12 of the Act, 2005, envisages that: "12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behaff of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such appjication, the Magistrate shal! take into consideration any domestic incident report recelved by him from the Protection Officer or the service provlder. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the jnjuries caused by the of domestic violence commjtted by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable ?n pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of CMI Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executabie for the balance amount, if any, jeft after such set off. (3) Every appjication under sub-section (1) shal! be in such form and contain such particulars as may be prescribed or as nearSy as possible thereto. (4) The Maglstrate shal! fix the fjrst date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shail endeavour to dlspose of every app!ication made under sub-section (1) within a period of sixty days from the date of its first hearing. 2S. Relief in other sujts and iegal proceedings.0 (1) Any relief available under Sections 18, 19, 20, 21 and 22 may aJso be sought jn any legal proceedlng, before a dvi! court, family court or a crimjnal court, alfecting the aggrieved person and the respondent whether such proceeding was Initjated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in additjon to and a!ong with any other reljef that the aggrieved person may seek jn such suit or iegal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person In any proceedings other than a proceedjng under this Act, she shall be bound to inform the Magistrate of the grant of such relief." 6. In order to appreciate Issue InvoSved in this matter, it wl!l be profitable to have a glance on the scheme of the Act, 2005. The Act, 2005 has been enacted, as the Uni'ted Nations Committee on Convention on EJimJnation of Ail Forms of Discriminatjon Against Women in its General Recommendations recommended that State parties should act to protect women against violence of any kind, especially that occurring within the famijy. The civi! law does not address this probtem in jts entirety. Even though where a woman is subjected to cruelty by her husband or his reSatives, it is an offence under Section 498-A of the IPC. Therefore, in order to provide a remedy In the civii law for the protection of women from being victim of domestic violence and to prevent the occurrence of domestic vioience In the sociefy for the protection of women from domestic viojence, the Act, 2005 has^been enacted by the ParSiament. Considering the fact that domestic violence is undoubtedly a human ri@ht Issue and serious deterrent to de^/elopment, this law has been enacted keeping in view the ^^^^^,..:-.^^^^»«,Ba^iffl^^ ^ rights guaranteed under Articles 14,15 and 21 ofthe Constitution to provide for a remedy under the civi! law whlch is intended to.protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence jn the society. Therefore, in order to grant minimum reiief to the aggrieved person who Is subjected to domestic vjo!ence, the above Act, 2005 has been enacted. Aggrieved person as defined in Section 2(a) of the Act, 2005 is subject of domestic violence as defined in Section 3 of the Act, 2005, she Es entitled to move an application before a Magistrate under Section 12 ofthe Act, 2005 for seeking relieffor issuance of the order for payment of compensation or damages without prejudice to right of such person to institute a suit for compensation or damages for the jnjuries caused by the acts of domestic vioience committed by the respondent. 7. Sub-section (4) of Section 12 contemplates that <the Magjstrate shall fsx the first date of hearing, which shall not ordinarily be beyond 3 days from the date of receipt of the application by the Court.' Sub-section (5) further cast duty on the Magistrate to dispose of every application made under sub- section (1) within a period of 60 days from the date of its first hearing. Section 17 envisages that every woman In a domestic relationshjp shal! have the right to reside in the shared household, whether or not she has any right, titie or beneficial interest in the same. It further envisages that the aggrieved person shall not be evicted or excluded from the shared household or any pa?1: of it by the respondent. Section 18 contemplates that after hearing aggrieved person and the respondent, cn being satisfied that domestic violence has taken place or is likely to take p!ace, the Magistrate has to a protection order in favour of the aggrieved person and prohibit the respondent under situations enumerated in ciauses (a) to (g). 8. Section 19 envjsages that the Magistrate on being satisfied that domestic violence has taken place, pass order in respect of residence of aggrieved person in the situations mentioned in clauses (a) to (f) of sub-section (1) of Section 19 and also pass order as contemplated In sub-section (2) to (8) of Section 19. As per Section 20, the Magistrafe can grant monetary reliefs in respect of and in situations enumerated in Section 20. Section 21 authorizes the Magistrate to pass orders jn respect of the custody of the child or children to the aggrieved person. Section 22 authorizes the Magistrate to compensation orders on an appljcation being made by the aggrieved person directing the respondent to pay compensation or damages for the injuries, including mental torture and emotiona! distress, caused by the acts of domestic violence committed by the respondent. 9. Section 26 of the Act has been t'nserted with an objective that in addition to the provisions of Section 12 the aggrieved person is entitled to any relief available under Sections 18,19, 20, 21 & 22 in any legal proceeding, before a civij court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the Act. Sub-section (2) of Section 26 further envisages that any relief referred to in sub-section (1) may be sought for in addition to and a!ong with any other relief that the aggrieved person may seek in suoh suit or lega! proceeding before a civil or criminal court. Sub- section (3) cast duty on the aggrieved person that In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under Section 12 of this Act, she shall be bound to jnform the Magistrate of the grant of such relief. Therefore, as per Section 26 of the Act, the aggrieved person is a!so entitled to seek re!ief as provided under Sections 18, 19, 20, 21 & 22 in any legal proceeding, before a civii court, family court 6r a criminal court in which the aggrieved person and respondent are party & that relief is in addjtion to and a!ong with any other relief that the aggrieved person may seek in such suit or legal proceeding. Therefore, an option has been given to the aggrieved person to avail reliefs avai!able to her under Sections 18, 19, 20, 21 & 22 in a legal proceeding pending in a civil court, criminal court or family court in addition to filing of the application under Section 12. 10. !n view of the above scheme of the Act, spedaJIy as per the provisions of Section 26 of the Act, the appellant herein is entitled to seek relief available to her under Sections 18, 19, 20, 21 & 22 of the Act, 2005 in the maintenance proceeding pending in the Family Court, Bilaspur. But the appellant Is required to move an appijcation under Section 26 read with Section in which she is seeking relief. However, instead of doing that, the appellant moved an independent fresh application under Section 12 of the Act, 2Q05 which can be entertained only by the Magistrate having jurisdiction. An appjication under Section 12 cannot be filed before Family Court because proceeding under Section 12 of the Act, 2005, as per the scheme of the Act, has to be filed before the Magistrate competent to entertain the application. 11. In the circumstances, we do not find any illegajjty or infjrmity in the order impugned by the learned Judge, Family Court. The appeal is, therefore, iiabie to be dismissed and it is hereby dismissed. Still the appe!lant is entitted to move an application under Section 26 of the Act, 2005 before the Family Court in the maintenance proceeding said to be pending before that Court. Baive Sd/- L.C. Bhadoo Judge Sd/- Sunil Kumar Sinha Judge