N.Pakthavathsalam vs K.Pramila, & Anr.

Section 24 of the Code of Civil Procedure [in short ''CPC'']

deals with transfer for the purpose of consolidation of

proceedings between the same parties, for the sake of

convenience. For the purpose of consolidation there are certain

conditions to be fulfilled. Particularly, one of the condition is that

the contesting parties must be the same and the determination of

rights of parties in one suit must be connected with the

determination of the parties in another suit. Normally, in

matrimonial matters the Courts have to take into consideration

the economic soundness of either of the parties and the social

status of the spouses and their behavioural pattern and the

standard of life.

The interesting question that arise for consideration in

the present proceeding is that though two proceedings were filed

before different Courts, between the same parties, involving the

same issues, the question, whether it could be transferred stands

out.

For better appreciation of the matter, the brief facts of

the case are as follows:

The petitioner/husband had filed a petition under Section

13(1)(ia) and (ib) of Hindu Marriage Act, 1955 seeking divorce in

HMOP No.59 of 2016 before the Sub Court, Tambaram. While so,

the respondent/wife had filed a maintenance petition in

M.C.No.30 of 2016 under Section 125 of Criminal Procedure Code

[in short ''Cr.P.C.''] before the Judicial Magistrate Court No.I,

Thanjavur. Now the petitioner, who is the husband has filed the

transfer petition to withdraw and transfer the MC No.30 of 2016

pending on the file of the Judicial Magistrate Court No.I,

Thanjavur to the Sub Court, Tambaram where the HMOP No.59 of

2016 is pending, to be tried together.

The Registry has raised the question of maintainability,

as the transfer of maintenance case, which is filed under Section

125 Cr.P.C. has to be filed only under Section 407 of Cr.P.C.

Section 24 of CPC is not attracted.

Firstly, the transfer ought to have been filed under

Section 407 Cr.P.C. and Section 24 of CPC is not applicable.

Secondly, the other suit viz., HMOP is pending before the Sub

Court has got exclusive Civil Jurisdiction. It is stated that there is

no Family Court in Tambaram and therefore, the divorce petition

was filed before the Sub Court, Tambaram.

The jurisdiction of the Family Court has been prescribed

under Section 7 of the Family Courts Act, 1984. As per Section

8 of the Family Court''s Act, the jurisdiction of the District Court

and Subordinate Court were excluded, where the Family Court

was vested with jurisdiction.

A conjunctive reading of Sections 7 and 8 of the Family

Courts Act, would show that wherever, the Family Courts have

been established, the District Court or Subordinate Civil Courts,

cannot exercise jurisdiction in respect of matters to which the

Family Court is authorized to exercise its jurisdiction. No doubt,

the Family court is Subordinate to High Court and in exercise of

that power, the High Court can transfer the proceeding from

Family Court to District Court or vice versa. The Family Courts

Act, being a special law, is different in its scheme as it deals only

with the family disputes. Normally the procedure prescribed for

dealing with the civil or criminal case is not applicable.

Therefore, once the Family Court has taken up the case on its

file, it should not be transferred to any civil or criminal court in

ordinary process. The Family Court is also empowered to deal

with petitions seeking maintenance under Chapter IX of the

Criminal Procedure Code.

At this juncture, I would like to refer to the explanation

given by Sri.P. RAMANATHAN AIYAR in his Advanced Law

Lexicon, 4th Edition, Vol.I as to what is the distinction between

Civil and Criminal Proceeding.

CIVIL PROCEEDING

The expression ''civil proceeding'' covers all proceedings in which a party asserts the existence of a civil right conferred by the Civil law or by statute, and claims relief for breach thereof. A proceeding for relief against infringement of civil right of a person is a ''civil proceeding'' within the scope of Article 133 of the Constitution.

CRIMINAL PROCEEDING

A criminal proceeding is an action instituted and prosecuted by the state in its own name against a person who is accused of a crime to punish him therefor. A criminal proceeding is instituted and conducted for the purpose either of preventing the commission of a crime or for fixing the guilt of a crime already committed and punishing the offender, as distinguished from a civil proceeding which is for the redress of a private injury.

The object of Section 24 of Hindu Marriage Act, 1955

and Section 125 of Cr.P.C are different. Section 24 deals with

interim maintenance, pending proceedings by the wife, whereas

Section 125 Cr.P.C applies, when there is a refusal or neglect to

maintain the wife by the husband. The procedure and mode of

recovery are also different in both the heads. In fact, it is even

stated that the two remedies can co-exist.

However, now the question is whether in the absence

of a Family Court, when the Sub Court is vested with the

jurisdiction to try the family disputes, whether the proceeding

from the Magisterial Court can be transferred to the Sub court

under criminal procedure.

Section 407 Cr.P.C prescribes the power of the High

Court to transfer cases and appeals. Earlier, since the Family

Court is vested with both civil and criminal jurisdiction, the

maintenance case filed under Section 125 Cr.PC can be

transferred to the Family Court under Section 407 Cr.P.C.

Section 24 of CPC authorizes the High Court to transfer

any proceedings from one Civil Court to another Civil Court under

its jurisdiction. The Family Court itself established under the

Family Courts Act will have jurisdiction to deal with matters

contained in Section 7 of the Act exclusively, since the act has

got overriding effect than any other law, which is prescribed in

Section 20 of the Act. The scheme and special features of the

Family Court are to take effort for settlement, take assistance of

medical and welfare measures as well as consideration of the

statement or document, which is not otherwise admissible as per

the Indian Evidence Act, etc. Even a representation by a legal

practitioner is prohibited unless with the permission of the Court,

and that too, only as Amicus Curiae.

The other important feature is, a trial in Family Courts

are conducted in, in-camera proceedings. When such are the

advantages available in Family Court, if a proceeding is

transferred from there to any other Court, the parties will be

deprived of those special provisions. There is a risk, as far as

possible, even the transfer of any matrimonial proceedings

pending in any other Court other than the Family Court are

transferred to the Family Court having jurisdiction.

Similarly, like Section 24 of CPC, the High Court has

also got powers to transfer any proceeding under Chapter IX of

Cr.P.C. from any Family Court to Magistrate Court or from

Magisterial Court to Family Court.

But, in the case on hand, the petitioner is seeking to

transfer the maintenance case filed by the respondent/wife under

Section 125 Cr.P.C and not under Section 407 Cr.P.C. under

Section 24 of CPC to the Sub Court, Tambaram where the HMOP

filed by the him is pending.

As stated earlier, the Sub Court does not have any

powers to deal with criminal matters. Any transfer under Section

24 of CPC can be made only when the transferee court also got

jurisdiction. When admittedly, the transferee Court lacks

jurisdiction to try criminal matters, transfer to the Sub Court is

not possible. Even presuming that the application is filed under

Section 407 Cr.P.C. when the transferee court does not have

jurisdiction to receive the same, the transfer is not permissible.

In the result, this Court is of the view that the above

Transfer Civil Miscellaneous Petition is not maintainable and

accordingly, the same is dismissed at the SR stage itself.