Asha Devi vs Ashok Kumar

Sunil Hali, J.—A matrimonial dispute is pending before the Additional District Judge (Matrimonial Cases) between the parties. Respondent

seeks dissolution of marriage u/s 13 of Jammu and Kashmir Hindu Marriage Act, 1980 ( for short referred to as the Act) by granting decree of

divorce in his favour. This case was being contested by the parties before the trial court.

The petitioner has filed transfer application seeking transfer of case from the District Matrimonial Court, Jammu to Samba in view of creation of

new District. She has also stated that it will be for the convenience of the parties that the matter is heard by District Court Samba. She has given

details that both the parties reside in Tehsil Samba and it will be convenient for them to appear at Samba.

Mr. Johal has taken a legal plea that this Court has no jurisdiction to transfer a matrimonial dispute to any other court while exercising power u/s

24 of CPC He states that J&K Hindu Marriage Act which is a special Act, the power to transfer cases can be exercised only by invoking Section

24 of Act. According to Mr. Johal, Section 24 terms transfer of a petitions under the Act only in certain cases details of which are given herein

below.

Since the Act provides transfer only in certain cases, this Court cannot while exercising power u/s 24 of the Act transfer any other case except

the one which is enumerated u/s 24 of the Act.

I have heard the learned Counsel for the parties and perused the record. In order to understand the controversy raised by Mr. Johal it is

important to enumerate Section 24 of the Act herein below:

Power to transfer petition in certain cases

(1) Where:

(a) a petition under this Act has been presented to a District court having jurisdiction by a party to a marriage praying for a decree for judicial

separation u/s 10 or for a decree of divorce u/s 13, and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for a judicial separation u/s

10 or for a decree of divorce u/s 13 on any ground, whether in the same district court or in a different district court,

The petitions shall be dealt with as specified in Sub-section (2)

(2) In a case where Sub-section (1) applies,:

(a) if the petitions are presented, to different district courts, the petition presented later shall be transferred to the district court in which the earlier

petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was

presented,

(3) In a case where Clause (b) of Sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil

Procedure, Svt. 1977 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in

which the earlier petition is pending shall exercise its power to transfer such later petition as if it had been empowered so to do under the said

Code.

Perusal of Section 24 of the Act reveals that the court has the power to transfer a case if the matrimonial proceedings are simultaneously being

pursued in two different courts. Section 24 clearly envisages that in case proceedings are pending in two different District Courts then one which

was filed later shall be heard only in the District where earlier petition has been filed. Object of this section seems to be that proceedings which are

simultaneously being filed in two different courts, the court has power to transfer the one which has been filed latter. The question arises for

consideration is as to whether power u/s 24 of CPC is restricted or is taken away by Section 24 of the Act. in my view Section 24 of the Act

deals with the power to transfer petitions and direct their joint or consolidated trial in certain cases and is not exhaustive. As a matter of fact, this

provision is traceable to principle laid down u/s 10 of CPC. Even though Section 10 CPC seeks stay of the suit which is filed later at any point of

time u/s 24 of the Act no such restriction is envisaged. Principle underlying both the provisions is that two sets of proceedings of same nature

cannot be tried at two different places. This in my opinion restrict the power of the court to transfer the petition u/s 24 of the Act.

Ms Sweta Sambyal learned Counsel for the petitioner has placed reliance on the judgment reported in Guda Vijayalakshmi Vs. Guda

Ramachandra Sekhara Sastry, . The relevant portion of the judgment reads as under:

It cannot be said that the substantive provision contained in Section 25 Civil P.C. is excluded by reason of Section 21 of the Hindu Marriage act,

1955. In terms of Section 21 does not make any distinction between procedural and substantive provisions of Civil P.C. and all that it provides is

that the Code as far as may be shall apply to all proceedings under the Act and the phrase as far as may be means and is intended to exclude only

such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the

Code as partake of the character of substantive law are excluded by implication as no such implication can be read into Section 21 and a particular

provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act.

The import of aforesaid judgment clearly reveals that the substantive provision in Section 25 of CPC cannot be excluded by Section 24 of

Hindu Marriage Act. Implicit in such observation is the fact that it is only in cases of inconsistency between the Special Act with the General Act

which would exclude jurisdiction of the court in exercising power u/s 24 of CPC. Section 24 of the Act only gives power to the court to

consolidate the proceedings pending in different courts in respect of the same parties. Section 24 of the Act is only a procedural and not

substantive in character.

In my view the powers to transfer cases under the Hindu Marriage Act are not taken away by Section 24 of the Act.

There is another aspect of the case also that since separate district has been created for Samba; all the cases relating to that area are required

to be transferred there. This matter has to go to Samba for trial for which no separate orders are required from this Court. The court may only

have power to retain at Jammu that too u/s 24 of CPC. I allow this petition and direct that the case be transferred to District Court Samba.

File of the case be also sent to the Matrimonial court at Samba by the court at Jammu. The parties are directed to appear before the court at

Samba on 30.10.2008.