- 1 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 26243 OF 2024 (GM-FC) BETWEEN: P.MOHAMMED KHIZAR AFTAB S/O LATE P ABDUL GAFOOR SAHEB AGED ABOUT 63 YEARS R/AT NO. 60, III MAIN II STAGE, CHANDRA LAYOUT ATTIGUPPE BENGLAURU -560 040 …PETITIONER (BY SRI.SUNIL KUMAR PATIL, ADVOCATE ALONG WITH SRI.VENKATA REDDY S.K., ADVOCATE) AND: FATHIMA NAZNEEN D/O MOHAMED ANWAR AGED ABOUT 43 YEARS R/AT.#1480, JUDICIAL LAYOUT Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 1ST MAIN, 2ND CROSS G K V K POST YELAHANAKA BENGALURU- 560 065 …RESPONDENT (BY SRI. RAGHAVENDRA S., ADVOCATE) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT BY QUASHING THE ORDER, DATED: 23.08.2024, PASSED ON IA DTED: 25.03.2024 IN CRL.MISC.NO. 581/2014, BY THE IV ADDL. PRL. JUDGE, FAMILY COURT, BENGALURU, VIDE ANNEXURE-A. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 30.07.2025, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI - 3 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 CAV ORDER The present writ petition is filed aggrieved by the order passed in I.A. dated 25.03.2024 in Crl.Misc.No.581/2014 by the IV Additional Principal Judge, Family Court, Bengaluru, whereby the Family Court had dismissed the application, the petitioner/husband is before this Court questioning the maintainability of the petition. 2. The parties are referred to as husband and wife for the sake of convenience. 3. The brief facts of the case are that the wife had filed Crl.Misc.No.581/2014 under Section 7(1) Explanation (f) of the Family Court Act, 1984 read with Section 20(1)(d), 20(3) and Section 26 of the Protection of Women from Domestic Violence Act, 2005 read with Section 125 of Cr.P.C. seeking maintenance of an amount of Rs.50,000/- per month or to provide the assured permanent source of her decent and dignified livelihood directly and regularly by fetching her a monthly minimum income of Rs.50,000/- throughout her future life or in alternative, to pay one time lump sum amount of Rs.3,00,00,000/-. - 4 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 4. The husband had filed his statement of objections to the petition. It is stated that when the wife had left the husband and started living with her father, he gave divorce to the wife on 22.04.2014 by expressing TALAQ-E-BAIN, 3 times in the presence of two witnesses in accordance with Islam faith. This was orally informed to the wife and her father immediately. It is also stated that the husband was a public servant, served as Deputy Commissioner of Commercial Taxes (Audit), Bengaluru and got retired from his service on 29.11.2014. Moreover, he has already divorced the wife on 22.04.2014 and there is no relationship of wife and husband existed between them. 5. The husband had filed a memo dated 28.01.2017 regarding maintainability of the petition. The Family Court by order dated 29.01.2018 had held that the petition filed by the wife seeking maintenance is maintainable. Then the petitioner had assailed the said order by filing WP.22071/2018 and the same came to be withdrawn by the husband on 06.09.2018. Thereafter, the wife had filed a memo dated 03.04.2021 seeking the Family Court to delete the provision "under Section 125 of Cr.P.C., 1973" from the main petition in - 5 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 Crl.Misc.No.581/2014 which came to be allowed vide order dated 04.09.2021 and accordingly provision under Section 125 Cr.P.C. came to be deleted in Crl.Misc.No.581/2014. It is stated that once, Section 125 of Cr.P.C. is removed from the prayer, now the main petition filed by the wife stands only "under Section 7(1) Explanation (f) of the Family Court, 1984 read with Section 20(1)(d), 20(3) and 26 of the Protection of Women from Domestic Violence Act, 2005. On 25.03.2024, the husband filed I.A. seeking to decide the maintainability of the petition on the file of the Family Court. 6. The Family Court by order impugned had dismissed the application. While dismissing the application, the Family Court had observed that the wife had already been examined and when scheduled for husband's evidence, application under Section 311 of Cr.P.C. came to be filed on behalf of the wife to recall PW.1 and to produce additional documents. Further chief of PW.1 is also adduced and Exs.P5 to P7 are marked. At this juncture, once again this application is filed on behalf of the husband to decide about maintainability of the petition. The contention of the husband is that he had already divorced the - 6 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 wife but this fact is specifically denied by the wife. So, as the fact of divorce is disputed, there is mixed question of law and fact. In such circumstances, as the wife had already lead her evidence, now at this stage, the petition cannot be disposed of on the ground of maintainability as it involves the mixed question of law as well as fact. 7. The Family Court had further observed that Section 7 of the Family Courts Act deals with jurisdiction of the Family Court. It refers to suits and proceedings between the parties to a marriage. Even a suit or proceedings for maintenance can be filed before the Family Court. So the Family Court shall also have jurisdiction exercisable by the Magistrate of 1st Class under chapter 9 i.e., relating to order for maintenance of wife, children and parents of the Code of Criminal Procedure, 1973. So as per Section 7(2) of the Family Courts Act, the Family Court also has jurisdiction exercisable by the Magistrate in connection to the issue of maintenance. Hence, Section 20 of the D.V. Act deals with monetary relief and Section 26 of the Act specifically makes out that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal - 7 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 proceedings before the Civil Court, Family Court or Criminal Court, affecting the aggrieved person. The Talaq-e-Bain is disputed by the wife, case has to be adjudicated by means of evidence. Apart from that important factor that has to be taken into consideration is the present petition is filed in the year 2014 in the month of October and by two months, this case will be of 10 years old. Matter is being adjudicated day-by-day before the Court and the respondent is adjourning for conducting the proceedings on one or the other reason though the matter has reached the stage of respondent's evidence. Accordingly, the application filed by the husband to decide the maintainability of the petition was dismissed. 8. Learned counsel appearing for the husband submits that the after the withdrawal of the relief under Section 125 of Cr.P.C., the Family Court has no jurisdiction to grant the relief as sought by the wife under the Domestic Violence Act. He had relied on the judgment of Division Bench of Orissa High Court in case of Brundaban Patra Vs. Rajalaxmi Patra1. Para 11 of the Judgment reads as follows: 1 (2011) 3 Crimes 793 - 8 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 11. Thus, a plain reading of the provisions of the Act reveals that the Indian Parliament in its wisdom thought that the existing law governing the field was inadequate to protect women from domestic violence &, therefore, enacted this particular piece of legislation for more effective protection of rights of women which is granted under the Constitution, who are victims of any kind abuse occurring within the family & for matters connected therewith or incidental thereto. This is a, piece of progressive legislation & the provision of the act has to be interpreted accordingly. From, the different provisions discussed above, it is seen that the Indian Parliament has left no scope for refusing any relief on He relied on the judgment of the High Court of Kerala in case of Raju Narayana Swamy Vs. Beena M.D.2. Paragraph no.12 of the judgment reads as follows: “12. Section 26 of the PWDV Act has been inserted 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 and 22 in any legal proceeding, before a Civil 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 PWDV 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 along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. Sub-section (3) obliges the aggrieved person to disclose the nature of the reliefs, if any, obtained in any proceeding other than a proceeding under the Act. The 2 2017 (1) KHC 607 - 9 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 intention of the legislature was to enable the aggrieved person to secure the same relief in other proceedings before the Civil, Family or Criminal Court, whether it was instituted prior to or after the commencement of the PWDV Act. This would enure to the convenience of the aggrieved person as well as the respondent and would also prevent multiplicity or proceedings and conflict of orders. However an application under Section 12 seeking various reliefs under Section 18 to 22 cannot be filed as an original or independent application before the Family Court as the Act expressly stipulates that a proceeding under Section 12 of the PWDV Act has to be filed before the Magistrate competent to entertain the application. The Family Court will have jurisdiction under the PWDV Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding and the application under Section 26 of the Act seeking relief under section 18 to 22 is filed in that proceeding. The same view has been taken in Neetu Singh (supra) and Kumari Behara (supra).” 9. Learned counsel submits that the Family Court without even assigning any reasons had rejected the I.A. filed by the petitioner. If the Family Court is not having the jurisdiction, the parties cannot confer the jurisdiction and an order that is passed by a court without having jurisdiction is a nullity. 10. Learned counsel appearing for the wife has filed the statement of objections. It is submitted that only for the - 10 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 purpose of delaying the proceedings and to avoid paying the maintenance to the wife, the husband is coming up with one application after the other. In the objections, the wife has stated about how she is entitled for the maintenance. Learned counsel for the wife has filed his written arguments along with list of citations. He has relied on certain judgments whether the wife is entitled for maintenance or not. This Court need not consider this aspect, hence this Court is not discussing about the said objections filed. According to the respondent, the writ petition is not maintainable. As the order is an interlocutory order and every interlocutory order cannot be questioned. It is also stated that there is no jurisdictional error by the Family Court. 11. Learned counsel had relied on the judgment of the Hon'ble Apex Court in case of Satish Chander Ahuja Vs. Sneha Ahuja3 and submits that the Family Court has got the power to decide the to grant the relief under the Domestic Violence Act. He had relied on paragraph No.102 of the judgment which reads as follows: 3 (2021) 1 SCC 414 - 11 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 "102. After noticing the provision of Section 26 of the Act, this Court made following observations in paragraphs 23 and 24: (Vaishali Abhimanyu Joshi Case 2017 (14) SCC 373) “23. Section 26 of the Act is a special provision which has been enacted in the enactment. Although, Chapter IV of the Act containing Section 12 to Section 29 contains the procedure for obtaining orders of reliefs by making application before the Magistrate whereas steps taken by the Magistrate and different categories of reliefs could be granted as noted in Sections 18 to 22 and certain other provisions. Section 26 provides that any relief available under Sections 18 to 22 may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent. Section 26 is material for the present case since the appellant has set up her counterclaim on the basis of this section before the Judge, Small Cause Court. Section 26 is extracted below: “26. Relief in other suits and legal proceedings.— (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil 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 this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal 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 proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.” - 12 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 24. There cannot be any dispute that proceeding before the Judge, Small Cause Court is a legal proceeding and the Judge, Small Cause Court is a civil court. On the strength of Section 26, any relief available under Sections 18 to 22 of the 2005 Act, thus, can also be sought by the aggrieved person.” 12. It is submitted that Section 7(1)(f) of the Family Courts Act vests in the Family Court exclusive jurisdiction over all suits and proceedings for maintenance under any law for the time being in force. This legislative mandate ensures that all claims for maintenance, whether under personal laws, the Code of Criminal Procedure or other statutes, fall squarely within the Family Court's domain to the exclusion of any other forum. When relief under the D.V. Act is maintainable before the Magistrate, Section 26 of the D.V. Act expressly permits any relief under Section 18 to 22 to be sought in any legal proceedings before a Civil Court, Family Court or Criminal Court. As such, it is submitted that such a relief can be sought before the Family Court. 13. The decision that is relied on by the learned counsel for the petitioner in case of Brundaban Patra referred supra, it is - 13 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 submitted that it was distinguished by the High Court of Kerala in case of George Varghese Vs. Treesa Sebastian and Others in OP(FC).No.539/2022. 14. He had relied on the judgment of the High Court of Kerala in case of Fathim Vs. Vappinu arising out of O.P(FC).No.22/2025. He had relied on paragraph Nos.10 to 13, 27 of the judgment which reads as follows: "10. The moot question for consideration is whether a petition for amendment under Order VI Rule 17 CPC to incorporate reliefs under Sections 18 to 22 of the DV Act, 2005 is maintainable in an Original Petition filed before the Family Court under Section 7 of the Family Courts Act, 1984. 11. The Protection of Women from Domestic Violence Act, 2005 has been enacted to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for the matters connected therewith or incidental thereto. DV Act, 2005 was enacted by the parliament to give effect to various international conventions. 13. Chapter IV of the Protection of Women from Domestic Violence Act, 2005 deals with the procedure for obtaining orders of reliefs under the said Act. 27. The reliefs which can be claimed under Sections 18 to 22 of the DV Act, may also fall in any of the categories envisaged under Section 7 of the Family Court Act. Family Courts can provide reliefs under DV Act to ensure comprehensive protection and justice to the aggrieved person. The reliefs under Section 18 to 22 of the DV Act, - 14 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 2005 align with the categories under Section 7 of the Family Courts Act. Therefore, if an Original Petition filed under Section 7 of the Family Court Act seeking various reliefs is permitted to be amended, for incorporating certain reliefs as provided under Sections 18 to 22 of the DV Act, it will not change the nature and character of the Original Petition pending before the Family Court." 15. It is stated that the Bombay and Madras High Courts have even transferred the cases from the D.V. Court to the Family Court. It is stated that Section 7 grants original jurisdiction over all the matrimonial and family disputes, including marriage dissolution, property between spouses, maintenance, custody, guardianship, and any other matrimonial relief. Section 7(1)(f) specifically covers all maintenance proceedings, whether under personal laws, Cr.P.C., or other statutes. It is stated that Section 26 of the D.V. Act empowers an aggrieved person to seek D.V. Act reliefs in any legal proceedings before a Civil Court, Family Court or Criminal Court. Since Section 7(1)(f) already covers all forms of maintenance, the wife has the statutory right to elect to seek her D.V. Act remedies in the pending Family Court proceeding rather than before a Magistrate. This avoids multiplicity of - 15 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 litigation. It is submitted that the Family Court had rightly dismissed the application. 16. Having heard the learned counsels on either side, perused the entire material on record. The whole issue in this case is whether the Family Court has got jurisdiction to independently deal with the reliefs that are sought under the D.V. Act. It is not in dispute that along with the reliefs under the D.V. Act, the petitioner was seeking the relief under Section 125 Cr.P.C. Admittedly, the relief that is sought under Section 125 Cr.P.C. is later deleted by the wife herself. Now, what is remaining is the reliefs under Domestic Violence Act. The whole issue that falls for consideration before this Court is "whether the Family Court has jurisdiction to adjudicate and grant reliefs under the Domestic Violence Act, 2005 after withdrawal of the relief’s under Section 125 Cr.P.C." 17. The jurisdiction to entertain a petition under Section 12 of the Domestic Violence Act lies with the Judicial Magistrate of the 1st class. Nevertheless, the Family Court has no original jurisdiction to entertain a stand alone petition under the D.V. - 16 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 Act. Section 26 of the Domestic Violence Act enables an aggrieved person to seek reliefs under the Act before a Civil Court, Family Court or Criminal Court, only when such reliefs are sought in pending proceedings before such Court. Section 26 of the D.V.Act does not confer any independent or original jurisdiction on the Family Court to entertain a petition filed under Section D.V. Act. In the case of Smt. Vanamala Vs. H. M. Ranganath4, it was has categorically held that Family Court cannot entertain a standalone domestic violence petition and Section 26 of the D.V. Act does not create original jurisdiction. The same view has been reiterated in Krishnamoorthy Nookala Vs. Savita5 and Smt. Lakshmamma Vs. State of Karnataka6. Section 26 is enabling and ancillary in nature and permitting D.V. reliefs to be granted only when there is a pending proceeding before the court. Once substantive proceedings cease to exist, Section 26 cannot be invoked in isolation to sustain the jurisdiction. The petition under Section 125 Cr.P.C. constitutes a jurisdictional foundation for the Family Court to consider the ancillary relief under the Domestic 4 ILR 2011 KAR 4081 5 2004 (3) KCCR 2057 6 2019 SCC Online Karnataka 1652 - 17 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 Violence Act. Once Section 125 Cr.P.C. is deleted from the reliefs, the Family Court is left with a stand alone claim under the Domestic Violence Act, if it is a stand alone claim that falls within the jurisdiction of the Magistrate. Continuing the proceedings before the Family Court would amount to assuming the original jurisdiction which is impermissible. In case of Kunapareddy Vs. Kunapareddy Swarna Kumari and Another7, the Hon'ble Apex Court has held that though D.V. proceedings are similar in nature, original jurisdiction under Section 12 lies with the Magistrate and Section 26 permits grant of D.V. reliefs in other proceedings. In view of the above discussion, respondent cannot maintain a petition before the Family Court where she is seeking the reliefs alone under the Domestic Violence Act. Hence, this Court is passing the following: ORDER i. I.A. filed by the husband regarding the maintainability of the proceedings before the Family Court is allowed. 7 (2016) 11 SCC 774 - 18 - HC-KAR NC: 2025:KHC:54283 WP No. 26243 of 2024 ii. Liberty is given to the respondent to avail the appropriate remedy before the appropriate Court. iii. Accordingly, the writ petition is allowed. iv. All I.As. in this petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 2