Misc. Civil Application No.36 of 2003

15th February, 2005

Cases Cited:
Munna Lal Vs. State of U.P., AIR 1991 Allahabad 189 [Para 4]
Mamta Gupta Vs. Mukund Kumar Gupta, AIR 2000 A.P. 394 [Para 4]
Smt. Vempati Sarada Vs. Vempati Kaladhar, (2003)8 ILD 652 [Para 4]
Pandurang Ramchandra Mandlik (since deceased by his LRs.) Vs. Smt. Shantabai Ramchandra Ghatge, AIR 1989 SC 2240 [Para 10,13]

JUDGMENT

JUDGMENT :- Parties were heard on the last date and today the matter is kept for dictation of the Judgment.

2. This application is filed by the Applicant/wife invoking jurisdiction of this court under section 23(3) read with Section 151 and Section 24 of Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The Applicant has prayed for transfer of Hindu Marriage Petition No.A-794 of 2003 filed by the Respondent pending in the Family Court at Bandra, Mumbai to the court of Civil Judge (S.D.), Patan, State of Gujrat. The case of the Applicant is that she is a resident of Patan, Gujrat and the Court at Patan is also having jurisdiction to entertain and try the matrimonial Petition filed by the Respondent. It is not in dispute that the Applicant had filed a Petition for maintenance which was allowed by a Court at Patan. The case of the Applicant is that she is residing at Patan along with her mother whose age is 77 years. Her mother is suffering from Asthama and hypertension. The case of the Applicant is that she is required to attend to her mother personally and therefore she is not in a position to move out of the house. Therefore, it is impossible for her to attend the Family Court at Mumbai.

3. The application is strongly opposed by the Respondent by filing affidavit-in-reply. Apart from challenging the maintainability of this Application in this Court, it is submitted that there is no Family Court at Patan and therefore special machinery which is available in the Family Court at Mumbai is not available in the Court of Civil Judge (S.D.) at Patan. The apprehension is expressed that the Applicant will harass the Respondent as and when he is required to attend the Court at Patan.

4. The learned Counsel for the Applicant relied upon the Judgments reported in AIR 1991 Allahabad 189 (Munna Lal and etc. Vs. State of U.P. and another); AIR 2000 Andhra Pradesh 394 (Mamta Gupta Vs. Mukund Kumar Gupta) and another Judgment of Andhra Pradesh High Court reported in (2003)8 ILD 652 (AP) (Smt. Vempati Sarada Vs. Vempati Kaladhar). Relying upon the rules framed under Family Courts Act, 1984 (hereinafter referred to as the said Act of 1984) and Section 7 of the said Act of 1984, he submitted that the Petition for divorce in the Family Court will have to be treated as a suit and therefore the jurisdiction of this Court under Section 23 can be invoked by the Applicant.

5. The learned Counsel appearing for the Respondent submitted that the power of this Court under Section 23 of the said Code is restricted only to the suits and not to petitions in the Family Court. Secondly, he submitted that the Court of Civil Judge (S.D.), Patan does not possess the necessary infrastructure which the Family Court under the said Act of 1894 possesses. Therefore, prejudice will be caused if order of transfer is passed.

6. It will be necessary in this connection to refer to the Sections 22 to 24 of the Code of Civil Procedure, 1908 which read thus :

"22. Power to transfer suits which may be instituted in more than one Court - Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.

23. To what court application lies - (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under Section 22 shall be made to the Appellant Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

24. General power of transfer and withdrawal - (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage -

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it; and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section,-

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."

7. The learned Counsel for the Respondent submitted that the Section 24 gives power of transfer to this Court which applies to Suits, Appeals and other proceedings and Section 22 and Section 23 apply only to the suits.

8. Section 22 is applicable to the suits which could have been instituted in one or two or more Courts. Section 22 gives opportunity to the defendant to apply for transfer at the earliest possible opportunity. The Court to which such application is made after considering the objections of the other parties shall determine in which of the several Courts having jurisdiction the suit shall proceed. Sub-Section 3 of Section 23 provides that if the several Courts having jurisdiction are subordinate to different High Courts, the application contemplated by Section 22 must be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

9. It is true that in so far as Sections 22 and 23 are concerned, reference is to "suit" as distinguished from the language used in Sections 24 and 25. The said two Sections confer power to transfer any suit, Appeal or other proceeding. It is not in dispute that in so far as the Family Court is concerned, it is a Court subordinate to this Court. It is not in dispute that the powers under Sections 24 and 25 can be exercised in case of Petitions and proceeding filed in the Family Courts.

10. The first question which is to be decided is whether the Petition for divorce filed in the Family Court is a suit. The term suit is not defined in the said Code. A useful reference will have to be made to the Judgment of the Apex Court reported in AIR 1989 SC 2240 (Pandurang Ramchandra Mandlik (since deceased by his LRs.) and Anr. Vs. Smt. Shantabai Ramchandra Ghatge and Ors.) which reads as thus :

"18. In its comprehensive sense the word 'suit' is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceedings may be various but that if a right is litigated between parties in a court of justice the proceeding by which the decision of the Court is sought may be a suit..."

11. It is obvious that a suit is a proceeding instituted by a party for establishing his legal rights. A proceeding instituted in a Civil Court for enforcing a remedy available in law is a 'suit'. It will be necessary to refer to Section 7 of the said Act of 1984 which reads thus :-

"7. Jurisdiction :- (1) Subject to the other provisions of this Act, a Family Court shall -

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation :- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973; and

(b) such other jurisdiction as may be conferred on it by any other enactment."

12. It is, therefore, very clear that even the Family Courts Act contemplates a suit between the parties for decree of nullity of marriage or for restitution of conjugal rights or for judicial separation or for dissolution of marriage.

13. The provisions of Section 22 has been enacted for the benefit of and for the convenience of the litigants. In my view, the word suit used in the said Section cannot be given narrow meaning considering the law laid down by the Apex Court in the case of Pandurang Mandlik (supra). The Petition for divorce filed under the said Act of 1955 will have to be treated as a suit for the purpose of Section 22 and Section 23 of the said Code.

14. An attempt was made by the learned Counsel for the Respondent to submit that if the High Court entertains this Application under Section 23(3), in such a case it will be in the conflict with the powers of the Supreme Court of India under Section 25. The said argument deserves to be rejected for the simple reason that the scope of power of the High Court under Section 23(3) is very limited only to the cases covered by Section 22. Only in cases to which Section 22 is applicable, the High Court can exercise power under section 22 read with Section 23(3).

15. In so far as the second submission by the learned Counsel for the Respondent is concerned, under the provisions of the Hindu Marriage Act, 1955, except for the areas for which the Family Courts are established under the said Act of 1894, jurisdiction to entertain and try proceedings vests with the Civil Courts having ordinary original jurisdiction. If Section 19 of the said Act of 1955 is perused, it is very clear that the petition for divorce could have been filed at one of the places enumerated in the Section. Clause 2 of Section 19 provides that the Petition can be filed within the local limits of the Court where the Respondent resides. It is thus clear that the present Petition could have been filed either in the Civil Court at Patan or in any other court in accordance with Clauses 1 to 3 of Section 19. If one of these courts available is a Family Court, the Respondent cannot claim as a matter of right that the Petition should be heard only by the Family Court. It is true that certain facilities provided in the Family Court such as availability of Marriage Counsellors is not available in ordinary Civil Courts. However, the ordinary Civil Court has jurisdiction to entertain and try all the proceeding under the said Act of 1955 and like any other court it is bound to ensure that efforts are made for amicable settlement between the parties. Therefore, there is no substance in the second contention raised by the learned Counsel appearing for the Respondent.

16. From the averments made in the Application and the reply filed by the Respondent it is clear that the Petition could have been filed even in the Court of Civil Judge (S.D.), Patan. Earlier proceeding for maintenance was filed by the Applicant in the said Court and contested by the Respondent. Therefore, a case under Section 22 of the said Act is made out for transfer. The Applicant will have to ensure that no harassment is caused to the Respondent when he attends the Court at Patan.

17. In view of what is stated above, Application is allowed. Accordingly it is directed that the Petition No.A-794 of 2003 filed by the Respondent is transferred from the Family Court at Bandra, Mumbai to the Court of Civil Judge (S.D.), Patan, Gujrat. After transfer of the said Petition to the Court of Civil Judge (S.D.), Patan, State of Gujrat, the said Court will issue notice of the date fixed in the Petition.

18. Parties and the concerned Court to act upon an authenticated copy of this order.

Application allowed.