High Court

MUMBAI: When the husband has initiated divorce proceedings, it is the wife's choice whether to file a domestic violence case in a magistrate court or the family court for getting alimony, the Bombay high court observed and said that in such circumstances the case before the high court magistrate court should be transferred to the family court and the husband's application should not be considered.

Mrs. Arun Pednekar's husband's plea was dismissed with a penalty of Rs. 10,000. The wife's case was sought to be transferred from the Shavri Magistrate Court to the Bandra Family Court. The husband himself has filed a divorce case in the Bandra Family Court.

The husband argued that it is often held by the court that the domestic violence case can be transferred along with the divorce case so that there is no conflict in the orders passed by both the courts. However, the court said that the question of conflict should not be used in the issue of emergency maintenance of the wife and daughter. Transferring the case would cause further delay.

To remove the contradiction in the order, the wife can give details of both the proceedings. A wife can seek maintenance under both Domestic Violence Act and Hindu Marriage Act. If the discrepancy in the order is found to be the reason, then all the petitions of the husband against the choice of magistrate court by the wife will have to be allowed. Therefore, the law of choice available to the wife will become meaningless, the judge said.

The power to transfer the case can be avoided to avoid misuse of the law but the wife cannot be deprived of the forum of her choice.