Andhra HC (Pre-Telangana)
V. Sailaja vs V. Koteswara Rao on 8 January, 2003
Equivalent citations: 2003(1)ALD673
JUDGMENT Gopalakrishna Tamada, J.
1. As the parties to all these petitions are one and the same and the contentions raised by them are common, all these Transfer C.M.Ps. are disposed of by common judgment. For the sake of convenience, the parties herein are referred to as they are arrayed in Transfer C.M.P. No. 463 of 2000, which is filed by wife.
2. Transfer C.M.P. No. 463 of 2000 is filed by the petitioner (wife) seeking transfer of O.P. No. 416 of 2000 from the file of the Family Court, Vijayawada, to the Senior Civil Judge's Court, Vizianagaram.
3. While so, Transfer C.M.P. No. 1 of 2002 is filed by the respondent (husband) seeking transfer of O.P. No. 15 of 2001 from the file of the Senior Civil Judge's Court, Vizianagaram, to the Family Court, Vijayawada. Similarly, Transfer C.M.P. No. 4352 of 2002 is filed by the husband seeking transfer of M.C. No. 62 of 2000 from the file of Additional Judicial I Class Magistrate's Court, Vizianagaram, to the Family Court, Vijayawada.
4. The facts which led to the filing of these petitions are as follows: Both the petitioner and the respondent hail from Angaluru Village in Krishna District. The marriage between them took place on 2-10-1989 as per Hindu religious rites and caste custom and the marriage was also consummated. Soon after the marriage, the respondent was taken to Vizianagaram by the father of the petitioner to work in his Tannery Industry located at Vi/ianagaram. Two children were born to them during their wedlock. Thereafter, it is alleged by the petitioner that, the respondent (husband) became addicted to drinking and used to quarrel with her in drunken state. While so, in the year 1993 the parties have shifted to Madras. On 10-7-1996, the respondent met with a road accident in Madras and he was hospitalized for several months owing to multiple and compound fractures to his right leg, hand and kneecap etc. According to the respondent, the petitioner did not even care to visit him during the period of his hospital ization. Even after the completion of the treatment, his leg with fractured bones, its knee and ankle are still dysfunctional and in spite of all the above travails, the petitioner did not bother to see the respondent. According to the respondent, the petitioner left the matrimonial house in October, 1997. The respondent thereafter came back to Vijayawada from Madras and is presently residing in Vijayawada while the petitioner is residing with her parents at Vizianagaram.
5. Consequent upon the estrangement of the parties, the respondent (husband) filed O.P. No. 416 of 2000 before the Family Court, Vijayawada, seeking decree of divorce. While so, the petitioner filed M.C. No. 62 of 2000 on the file of the Court of Additional Judicial I Class Magistrate, Vizianagaram, under Section 125 Cr.P.C. seeking maintenance. She also filed O.P. No. 15 of 2001 on the file of the Court of Senior Civil Judge, Vizianagaram, seeking restitution of conjugal rites.
6. It is submitted by Mr. V.S.R. Anjaneyulu, learned Counsel for the petitioner (wife), that the petitioner's father is an old man aged about 85 years; her mother is no more while her brother is a resident of Hyderabad and all her sisters who are married have settled elsewhere. Thus, there is no male companion to look after the welfare of the petitioner and her father. Under these circumstances the petitioner is facing lot of inconvenience to go all the way from Vizianagaram to Vijayawada for the purpose of defending the O.P. filed by the respondent Le., O.P.416 of 2000 at Family Court Vijayawada. Therefore, the petitioner seeks transfer of the said O.P. i.e., O.P. No. 416 of 2000 from Family Court, Vijayawada to the Senior Civil Judge's Court, Vizianagaram, where the O.P. filed by her for restitution of conjugal rights is pending.
7. On the other hand, Sri K. V. Bhanu Prasad, learned Counsel for the respondent, submitted that with physical disablement it has become virtually impossible for the respondent to go all the way from Vijayawada to Vizianagaram and defend the O.P. and the maintenance case filed by the petitioner herein on each and every date of adjournment. He, therefore, seeks transfer of those two cases from the Courts at Vizianagaram to the Family Court, Vijayawada.
8. Having heard the learned Counsel for both parties and having due regard to the law laid down by the Apex Court in these matters, I am of the considered view that in matters concerning the transfer of matrimonial cases, it is the convenience of the wife which has to be taken into consideration by the Courts (see Rachna Kanodia v. Anuk Kanodia, 2001 (7) Supreme 96, and Sumita Singh v. Kumar Sanjay, ). Thus, in view of the law laid down by the Apex Court in the aforementioned cases, the O.P. filed by the respondent (husband) i.e., O.P. No. 416 of 2000 deserves to be transferred from the file of the Family Court, Vijayawada, to the Senior Civil Judge's Court, Vizianagaram, where the O.P. filed by the petitioner for restitution of conjugal rites is pending.
9. However, Mr. K. V. Bhanu Prasad, learned Counsel for the respondent, raised a contention that the Family Court where the O.P. filed by the respondent seeking divorce is a Court specially designated to deal with matters of matrimonial nature and no suit or proceeding pending in such specially designated Court can be transferred to a Court other than a Family Court. It is, therefore, contended that this Court in exercise of its jurisdiction under Section 24 of the Code of Civil Procedure cannot transfer the O.P. from Family Court, Vijayawada to the Senior Civil Judge's Court at Vizianagaram.
10. In the light of the above contention, it is necessary to look into the relevant provisions of the Code of Civil Procedure and the Family Courts Act, 1984.
11. Section 24 of the Code of Civil Procedure confers power upon the High Court and the District Court to withdraw any case or cases which are pending on the file of any Court and transfer the same to any other Court. The said power vested under the provisions of Section 24 of the C.P.C. is an absolute power and there is no restriction or impediment in the way of exercising the said power under Section 24. The Family Court, which is established under the Family Courts Act, 1984, is also a 'Court' and is subordinate to the High Court. Further, as provided in Section 10 of the Family Courts Act, the provisions of the Civil Procedure Code are applicable to the suits or other proceedings dealt with by the Family Court. Therefore, by virtue of the provisions of Section 10 of the Family Courts Act, the power of transfer and withdrawal of cases vested under Section 24 C.P.C. can as well be exercised by the High Court in respect of the cases which are dealt with by a Family Court established under the Family Courts Act.
12. Sections 7 and 8 of the Family Courts Act are relevant for the present purpose. They read 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 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 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 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment".
"5. Exclusion of jurisdiction and pending proceedings :--(a) 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 powers 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 proceedings 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."
13. On a plain reading of the provisions of Sections 7 and 8 of the Family Courts Act, it is clear that in respect of the matters which are enumerated in the Explanation to Section 7, the Family Court shall exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court. The Family Court shall also exercise the jurisdiction of the Magistrate of I Class in respect of a proceeding for maintenance filed under Chapter IX of the Code of Criminal Procedure, 1973. While so, Section 8 of the Act excludes the jurisdiction of Civil Courts/Magistrates of I Class in such of the Districts where Family Courts are constituted under the Family Courts Act.
14. On a careful reading of the language used in Section 8, I am of the opinion that the exclusion contemplated under Section 8 of the Act is only limited to the Districts where a Family Court is already constituted under the Family Courts Act, in which case, the jurisdiction of the Civil Courts in such Districts in respect of the matters which are mentioned in the Explanation to Section 7 of the Family Courts Act gets ousted. But, in places where Family Court is not constituted, then the said exclusion contemplated under Section 8 is not applicable to the Civil Courts which are functioning in such places. In such cases, the local Civil Courts will continue to exercise the jurisdiction in respect of all matrimonial matters.
15. Coming to the power of the High Court under Section 24 C.P.C., as already stated, the High Court has got unquestionable power to transfer cases from one Court to the other Court. Similarly, as the Family Court is also a Court subordinate to the High Court and is subject to the provisions of the Code of Civil Procedure, the High Court is empowered under Section 24 of the C.P.C. to transfer cases from one Family Court to the other Family Court.
16. But, the question in this case is whether this Court can transfer a case from the file of a Family Court to a Civil Court. As already stated, in the absence of constitution of a Family Court, the Civil Court is empowered to exercise jurisdiction in respect of matrimonial cases, by virtue of the provisions of Section 8. Therefore, in places where Family Court is not established, as the local Courts are vested with the jurisdiction to deal with matrimonial cases, such local Courts are competent to try the matrimonial cases of the nature which are mentioned in the Explanation to Section 7 of the Family Courts Act. In such a case, there may not be any bar under Section 8 of the C.P.C. from transferring the cases pending in a Family Court to such Civil Courts. Therefore, this Court in exercise of its jurisdiction under Section 24 of the C.P.C., can transfer cases which are instituted in a Family Court to the Courts within whose local jurisdiction no Family Court is constituted.
17. The above view of mine finds support from the decision of a learned Single Judge of this Court in a case reported in P. Jayalakshmi v. K Revichandran, . The relevant paragraph reads thus:
"Section 8 lays down that where a Family Court has been established for any area, no District Court or Subordinate Civil Court will have or exercise any jurisdiction in respect of any suit proceeding of the nature referred to in the explanation to Subsection (1) of Section 8. Under Clause (b), the Magistrates in that area will cease to have jurisdiction regarding matters governed by Chapter IX of Cr.P.C. It is significant to remember that the exclusion of jurisdiction is limited to the area for which the Family Court is constituted. The words used are 'such area'. In view of the wording of Section 8 the exclusion of jurisdiction for the Civil and Criminal Court is confined to area for which Family Court is constituted and there are no words indicated that the parties to that proceedings are prohibited from approaching any other Court outside the jurisdiction of the Family Court. Section 20 of Family Courts Act indicate that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any law for the time being in force or any instrument having effect by virtue of any law other than this Act A harmonious interpretation of Sections 3, 7, 8 and 20 clearly indicates that there is no bar against the parties from approaching other Courts outside the jurisdiction of the Family Court. The exclusion of the jurisdiction of the Courts is confined to the area over which the Family Court exercises jurisdiction...."
For the foregoing reasons, I see no merit in the contention advanced on behalf of the respondent.
18. It is brought to my notice that no Family Court is constituted in Vizianagaram District. Therefore, in the absence of constitution of a Family Court in Vizianagaram District, the local Civil Courts and the District Court, as the case may be, shall have the jurisdiction to deal with all those matters which are enumerated in the Explanation to Section 7 of the Family Courts Act. In that view of the matter, the Senior Civil Judge's Court, Vizianagaram, is competent to deal with the O.P., which is filed by the respondent herein in Family Court, Vijayawada. Therefore, I am inclined to withdraw the said O.P. from the file of the Family Court, Vijayawada and transfer the same to the Senior Civil Judge's Court, Vizianagaram, for disposal in accordance with law along with the O.P., which is filed by the petitioner for restitution of conjugal rights.
19. In the result, O.P. No. 416 of 2000 is withdrawn from the file of the Family Court, Vijayawada and is hereby transferred to the Senior Civil Judge's Court, Vizianagaram, for disposal in accordance with law along with O.P. No. 15/2001. Tr.C.M.P.No.463 of 2000 is accordingly allowed and Tr. C.M.P Nos. 1 and 4352 of 2002 are dismissed.
20. As the respondent is stated to be a physically handicapped person, the Senior Civil Judge, Vizianagaram and the Additional Judicial I Class Magistrate, Vizianagaram, to give some leverage to the respondent herein and accept the application or applications, if any filed by him, either for dispensing with his attendance before them or for condoning his absence on any date of adjournment.
21. No costs.