-Report by Shivansh Pratap Singh
In the case of MR. JAY SURYAKANT KAKADE Vs MRS. ANUNAYA JAY KAKADE dated 02.Feb.2022 a husband has filed an application for transfer of proceedings from the magistrate to the family court but the wife argues her right to appeal will be infringed.
Facts of the case:
The Applicant (Husband) seeks to transfer the proceedings filed by the wife under the Protection of Women under the Domestic Violence act,2005 before the Judicial Magistrate to the family court where he has filed a divorce petition.
Applicant’s Contention:
As the primary evidence in both cases remains the same there is the risk of conflicting judgements by two different judges. Further, the efficiency of cross-examination would be reduced and the judicial time of different courts will be wasted.
Respondent’s Contention:
Respondent disputed the applicant’s contention about conflicting judgements and the efficiency of cross-examination as misplaced. Domestic Violence Act aims to provide speedy remedy to women and such transfer will take away that right and also would be a serious infringement upon her right to appeal.
Judgement:
Amit Borkar opined that it is consistent with the court’s previous decisions to transfer the proceedings under Domestic Violence Act to the family court as the application filed under the Magistrate can be effectively tried under the family court. Further, the transfer is “Necessary” to avoid conflicting judgements. Whereas when it comes to the right to appeal, no such right is being infringed upon as the right being referred to here is just the right of revision. Further, the claim for speedy right of justice can be negated by the inversion test as not being the orbiter dicta or binding precedent.
KeyTakeaway from the judgement:
While delivering the judgement Amit Borkar sir referred to the ‘inversion test’ by Eugene Wambaugh to counter two points of the respondent, inversion test is a test to identify the ratio decidendi or obiter dicta of a judgement by treating a point to be absent and checking if the outcome/result varies. If it does vary then it’s the ratio decidendi or orbiter dicta but not if the resulting doesn’t vary. Further Orbiter Dicta is that part of the judgement that has to be treated as a binding precedent.
READ FULL JUDGEMENT: MCA/500/2022