Parbati Senapati vs Toshan Senapati

Ashis Kumar Chakraborty, J.—This is an application under Section 24 of the Code of Civil Procedure 1908, hereinafter called as "the Code", at the instance of the petitioner wife praying for, transfer of the matrimonial suit filed by the opposite party husband which is pending before the learned Principal Judge, Family Court no. 2, at Calcutta to the Court of the learned District Judge, Paschim Medinipore.

The ground urged by the petitioner in this application for transfer of the matrimonial suit are that not only the marriage between opposite party and herself was solemnized at Kharagpur, the parties also last resided at their matrimonial home in the district of Purba Medinipore, she is presently residing at Kharagpur and the opposite party has motivatedly filed the matrimonial suit before the learned Family Court at Calcutta which has no jurisdiction to entertain the same. The petitioner has further alleged that not only the learned Family Court, Calcutta lacks the territorial jurisdiction to entertain the matrimonial suit, even the petitioner is otherwise facing great hardship to contest the matrimonial suit by travelling the long distance between her residence at Kharagpur and the city of Kolkata. According to the petitioner, she has no friend or relative in Kolkata, nor does she have any male member to accompany her to the city of Kolkata for the purpose of contesting the matrimonial suit before the learned Family Court. She has no independent source of income and it is only Rs. 1000/- (Rupees One Thousand only) that she receives from the opposite party on account of pendente lite maintenance. Thus, she is also facing financial hardship to bear the travelling and other expenses to contest the proceeding at Kolkata.

After being prima facie satisfied with the grounds urged by the petitioner in the application, on August 11, 2015 this Court passed an interim order, directing stay of all further proceedings in the matrimonial suit pending before the learned Principal Judge, Family Court no. 2 at Calcutta till September 4, 2015. The petitioner was directed to serve a copy of the application on the opposite party. On the returnable date the opposite party appeared before this Court, he filed his affidavit - in-opposition to this application and contested the application.

The principal ground urged by Mr. Anit Kumar Rakshit, learned advocate appearing for the opposite party husband to oppose this application was that the matrimonial suit has been filed before the learned Family Court no. 2, Calcutta under the provisions contained in Section 8 of the Family Courts Act, 1984, hereinafter called as "the Act of 1984". According to him, in view of the provisions contained in Sections 7 and 8 of the Act of 1984, the learned Family Court has the exclusive jurisdiction to entertain the matrimonial suit filed by the opposite party and the matrimonial suit cannot be transferred to any other Court as prayed for by the petitioner. In other words, the contention raised by Mr. Rakshit was that the High Court, in exercise of jurisdiction under Section 24 of the Code cannot withdraw and transfer a matrimonial suit from a Family Court constituted under the Act of 1984 to itself or to any other Civil Court. With regard to the factual score, he contended that in his affidavit-in-opposition the opposite party has categorically denied that the parties last resided at their matrimonial home in the District of Purba Medinipore. Mr. Rakshit further submitted that in the affidavit-in-opposition the opposite party has disclosed his ration card and voter identity card disclosing that he is presently residing in Kolkata.

Mr. Md. Shahjahan Hossain, learned counsel appearing for the petitioner, however, contended that a Family Court constituted under the Act of 1984 has all the trappings of a Civil Court and as such, the High Court in exercise of its jurisdiction under Section 24 of the Code can transfer a matrimonial suit from a Family Court situate within its jurisdiction to a civil Court of the same State. In support of such contention, Mr. Hossain relied on the decision of a learned Single Judge of the Andhra Pradesh High Court in the case of V. Sailaja v. V. Koteswara Rao reported in 2003(1) ALD 673. He further submitted that the case sought to be made by the opposite party that the parties had their matrimonial home in Kolkata are bereft of any merit. According to him, the opposite party had filed the matrimonial suit before the learned Family Court in the year 2011 whereas, the voter identity card and the ration card disclosed by the opposite party in his affidavit-in-opposition were issued on November 13, 2013 and May 13, 2015 respectively and as such, the allegation made by the opposite party in his petition of the matrimonial suit filed before the learned Family Court that the parties last resided at the matrimonial home in the city of Kolkata are patently incorrect. He further submitted that the opposite party has not disclosed any documentary evidence to substantiate that the petitioner ever resided with him in Kolkata. According to him, the opposite party has his permanent residence at Krishnanagar, Police Station Nandigram, District Purba Medinipur and the same is evident from the cause title of the copy of the plaint filed by the brother of the opposite party against the petitioner in Title Suit No. 8 of 2012, a copy whereof has been disclosed as Annexure-"E" to the affidavit-in-opposition of the opposite party.

I have considered the facts of the case as also the submissions of both Mr. Hossain and Mr. Rakshit appearing for the respective parties. Since a preliminary objection has been raised with regard to the jurisdiction of this Court under Section 24 of the Code to withdraw and transfer a matrimonial suit from the learned Family Court to any other Court of law the said issue is required to be decided first. Section 24(1)(b) of the Code confers jurisdiction on this Court to withdraw any suit, appeal or other proceedings pending in any Court subordinate to it or to transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same.

Section 7 of the Act of 1984, which deals with the jurisdiction of the Family Court is extracted below:

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 or, 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 (2 of 1974); and

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

Now, Section 8 of the Act of 1984 which has been relied upon by the opposite party provides as follows:

"8. Exclusion of jurisdiction and pending proceedings.—Where a Family Court has been established for any area,-

(a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;

(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),-

(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and

(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established,

shall stand transferred to such Family Court on the date on which it is established."

From a reading of the above provisions it is evident that the Family Court has been conferred all the jurisdiction exercisable by any District Court or any subordinate Civil Court to entertain and decide all disputes relating to or arising out of marriage and incidental matters referred to in the Explanation to sub-Section(1) of Section 7 of the Act and for that purpose it has been declared to be the District Court or the subordinate Civil Court, as the case may be. No doubt in view of Section 8 of the Act of 1984, after setting up of a Family Court in a district, no District Court or subordinate Civil Court of the same district shall have the jurisdiction to entertain any suit or proceeding specified in the Explanation to sub-Section (1) of Section 7 of the Act and all such suits or proceedings which is pending immediately before the establishment of the said Family Court before a District Court or subordinate Civil Court shall stand transferred to the Family Court. As per Section 10 of the Act of 1984, the provisions of the Code are expressly applicable in a proceeding before the Family Court and the Family Court is deemed to be Civil Court and shall have all powers of such Court. Section 17 of the Act requires the judgment of the Family Court to contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. Further, sub-Section (1) of Section 18 of the Act of 1984 expressly provide that any decree or order passed by a Family Court shall have the same force and effect as a decree or order of a Civil Court and the same shall be executed in the manner as is prescribed by the Code for execution of decree and orders. Sub-Section (3) of Section 18 provides that a decree or order passed by a Family Court may be executed either by the Family Court which passed it or by the other Family Court or any other Civil Court to which it is sent for execution. With all the said provisions, the said Act confers power and jurisdiction of the Family Court to adjudicate the matrimonial disputes between the husband and wife specified in the Explanation to sub-Section (1) of Section 7 of the Act of 1984 and the Family Court decides such disputes in exercise of the State''s judicial power conferred on it by a statute, in a judicial manner and declare the rights of the parties. The parties before the Family Court are entitled to be heard in support of their case and they are also entitled to adduce evidence in order to prove their claim, they can cross examine each other. The Family Court is obliged under law to settle and decide the dispute(s) on the basis of the evidence produced by the parties. For all these reasons, there is no scope to doubt that the Family Court has all the trappings of a Civil Court. Further, under Section 19 of the Act of 1984 an appeal from the final judgment and order shall lie to the High Court. Thus, any Family Court established in a district is subordinate to the High Court of the State.

On a plain reading or the provisions contained in Section 8 of the Act of 1948, as quoted above, it is evident that the exclusion of jurisdiction contemplated under said section is only limited to the districts where a Family Court has been established, in which, the jurisdiction of Civil Courts in such districts in respect of matters specified in the Explanation to Section 7 of the Act of 1984 get ousted. However, in places where the Family Court has not been constituted then the exclusion contemplated under Section 8 of the Act of 1984 is not applicable to the Civil Courts which are functioning in such places. Therefore, the High Court has powers under Section 24 of the Code to withdraw a case pending before a Family Court of any district of the State and transfer the same to another Family Court or to any other Civil Court of another district where no Family Court has not been established.

My above view finds support from the Division Bench decision of the Allahabad High Court in the case of Munna Lal v. State of U.P. reported in AIR 1991 All 189. I am also in respectful agreement with the decision of the leaned Single Judge of the Andhra Pradesh High Court in the case of V. Sailaja (supra) relied by the petitioner.

With regard to the merit of the present application, undisputedly, the petitioner is presently residing at Kharagpur in the district of Purbo Medinipore the opposite party husband has not been able to substantiate that the parties ever had their matrimonial home in Kolkata. The ration card as well as voter identity card of the opposite party were issued after filing of the matrimonial suit before the learned Family Court at Kolkata. Thus, I find substance in the contention raised by the petitioner that the learned Family Court, calcutta lacks the jurisdiction to entertain the matrimonial suit filed by the opposite party. The opposite party husband has not been able to substantiate that the case made out by the petitioner wife that she is facing hardship to contest the matrimonial suit before the learned Principal Judge. Admittedly, no Family Court has been constituted in the district of Purba Medinipore where the petitioner is presently residing. Further, having considered the facts of the case I am satisfied that the petitioner has otherwise also substantiated her case for obtaining the matrimonial suit being transferred from the Court of the learned District Judge Paschim Medinipore.

For all the foregoing reasons, the matrimonial suit, being Mat Suit no. 112 of 2011 (Sri Toshan Senapati v. Smt Parbati Senapati) is withdrawn from the Court of the learned Principal Judge, Family Court no. 2, Calcutta and the same is transferred to the Court of the learned District Judge.

The learned Principal Judge, Family Court no. 2, Calcutta is directed to forthwith transmit had the records of Mat Suit no. 112 of 2011 to the Court of the learned District Judge Paschim Medinipur.

It is made clear that the District Judge Paschim Medinipore may assign the matrimonial suit to the Court of any Additional District Judge at Medinipore, having jurisdiction to entertain matrimonial suits. With the above directions C.O No. 2533 of 2015 stands disposed of.

However, there shall be no order as to costs.

Let urgent certified copy of this judgment, be made available to the parties upon compliance of all requisite formalities.