Madras High Court
C.M.Buddha Poornima vs K.Gopala Krishnan on 13 February, 2020
Author: R.Subramanian
Bench: R.Subramanian
TR.C.M.P.(MD) No.2 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.02.2020
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
TR.C.M.P.(MD) No.2 of 2020
and
C.M.P(MD)No.47 of 2020
C.M.Buddha Poornima ... Petitioner
vs.
K.Gopala Krishnan ... Respondent
PRAYER: This Transfer Civil Miscellaneous Petition is filed under
Section 24 of Civil Procedure Code, to transfer the case in M.C.No.95
of 2018 pending on the file of the learned Family Court, Madurai to
the file of the learned Judicial Magistrate Court, Arakkonam at Vellore
District.
For Petitioner : Mr.P.Dhanasekaran
For Respondent : Mr.J.Baskaran
ORDER
This petition has been filed to transfer M.C.No.95 of 2018 pending on the file of the Family Court, Madurai to the file of the learned Judicial Magistrate Court, Arakkonam.
2. This petition was opposed by the respondent / husband on two grounds. The first ground is that a maintenance petition filed under Section 125 of the Criminal Procedure Code cannot be transferred to the Sub Court. The second ground is that this Court http://www.judis.nic.in 1/6 TR.C.M.P.(MD) No.2 of 2020 sitting under Section 24 of the Civil Procedure Code cannot transfer the criminal proceedings and the petitioner should approach the Court under Section 407 of the Code of Criminal Procedure.
3. Mr.Bharathan, learned counsel for the respondent / husband would rely upon the judgment of this Court in N.Pakthavasalam Vs. K.Pramila and another [CDJ 2017 MHC 1038] made in TR.C.M.P. (MD)No.SR83046 of 2016 dated 07.02.2017, wherein this Court had dealt with transfer of the proceedings under Section 125 of the Code of Criminal Procedure. This Court had rejected the request of transfer to the Sub Court on the ground that the maintenance case cannot be transferred to the Sub Court. It is also observed that the transfer petition ought to have been filed under Section 407 of the Code of Criminal Procedure and not under Section 24 of the Code of Civil Procedure.
4. The learned counsel for the respondent would also draw my attention to the another judgment of this Court made in Tr.C.M.P.No. 19713 of 2004 in Arunagiri Vs. Kala @ Lakshmi [CDJ 2005 MHC 794], wherein this Court had held that petition under Section 125 of the Code of Criminal Procedure can be transferred by exercising the power conferred under Section 24 of the Code of Civil Procedure. Interpreting the word 'any proceedings' used in Section 24 of the http://www.judis.nic.in 2/6 TR.C.M.P.(MD) No.2 of 2020 Code of Civil Procedure, this Court had held that the same would take within its swap criminal proceedings also particularly, under Section 125 of the Code of Criminal Procedure.
5. The Andra Pradesh High Court in Annavarapu Dhanaraj Vs. Smt. Annavarapu Manikyam and others [CDJ 2011 APHC 1035] had held that proceedings under Section 125 of the Criminal Procedure Code are in the nature of civil proceedings and therefore, they can be transferred by exercising powers under Section 24 of the Code of Civil Procedure.
6. Ofcourse, there is a conflict between the judgment of this Court in Tr.C.M.P.N0.19173 of 2004 and in Tr.C.M.P.No.SR83046 of 2016. Reading of the judgment of the Hon'ble Mrs.Justice Pushpa Sathyanarayana would show that the learned Judge was mainly concerned with the transfer of proceeding under Section 125 of the Criminal Procedure Code from the family Court to Sub Court. The transfer of a proceeding under Section 125 of the Criminal Procedure Code exercising power under Section 24 of the Civil Procedure Code was not very seriously discussed or decided by the learned Judge. Though there are certain observations to the effect that the application should be filed under Section 407 of the Criminal Procedure Code, I am of the opinion that the said judgment cannot be http://www.judis.nic.in 3/6 TR.C.M.P.(MD) No.2 of 2020 treated as a precedent to conclude that this Court has no power to transfer the cases under Section 125 of the Criminal Procedure Code filed before the Family Court under Section 24 of the Civil Procedure Code. In Arunagiri Vs. Kala @ Lakshmi, this Court has categorically held that the word 'proceedings' used in Section 24 of the Civil Procedure Code, would mean and include the proceedings under Section 125 of the Criminal Procedure Code also, more particularly, when the same is pending on the file of the Family Court.
7. The Andrapradesh High Court has taken a much more pragmatic view and it has held that proceedings under Section 125 of the Criminal Procedure Code is essentially in the nature of civil proceeding and therefore, the High Court can transfer the same under Section 24 of the Civil Procedure Code. Considering the decisions of this Court in Tr.C.M.P.No.19173 of 2004 and that of the Andrapradesh High Court reported in CDJ 2011 APHC 1035, I am of the considered opinion that exercise of power of transfer under Section 24 of the Civil Procedure Code need not be scuttled by giving a very narrow interpretation of the word 'proceedings' used in Section 24 of the Civil Procedure Code. The power of transfer conferred on the High Court under Section 24 Civil Procedure Code is much wider and it encompasses within itself the power to transfer the proceedings under Section 125 of the Criminal Procedure Code, or 24 of the Hindu http://www.judis.nic.in 4/6 TR.C.M.P.(MD) No.2 of 2020 Marriage Act or under Sections 10 or 12 of the Hindu Marriage Act, in order to resolve the conflict as all of them stem out of relationship between the spouses.
8. The Hon'ble Supreme Court in GUDA VIJAYALAKSHMI v. GUDA RAMACHANDRA SEKHKARA SASTRY, reported in AIR 1981 SC 1143 had held that even Section 21-A of the Hindu Marriage Act cannot scuttle the power of transfer either by the High Courts or by the Supreme Court to effect transfers in matrimonial proceedings. I am therefore, of the view that this Court in exercise of power under Section 24 of the Civil Procedure Code can transfer the proceeding under Section 125 of the Criminal Procedure Code.
9. The original prayer sought for in the case on hand is for transfer from the Family Court to Sub Court. The same cannot be granted, since the Sub Court will not have jurisdiction to entertain the maintenance case under Section 125 of the Criminal Procedure Code.
10. Realizing this difficulty, the petitioner has come up with an application in C.M.P.(MD)No.1482 of 2020 seeking to amend the prayer in the transfer petition seeking transfer of M.C.No.95 of 2018 from the Family Court, Madurai to the file of the learned Judicial Magistrate, Arakkonam instead of Sub Court, Arakkonam. The said petition has been allowed by a separate order.
http://www.judis.nic.in 5/6 TR.C.M.P.(MD) No.2 of 2020 R.SUBRAMANIAN,J ta
11. Accordingly, this transfer civil miscellaneous petition is allowed and M.C.No.95 of 2018 pending on the file of the Family Court, Madurai is withdrawn and transferred to the file of the learned Judicial Magistrate, Arakkonam to be disposed of in accordance with law. The Family Court, Madurai is directed to transmit the papers to the file of the learned Judicial Magistrate forthwith.
12. Considering the fact that the husband is employed in United Kingdom, he is permitted to move an application for dispensing with his appearance before the learned Judicial Magistrate in the proceedings under Section 125 of the Criminal Procedure Code and the same shall be considered by the learned Judicial Magistrate liberally. No costs. Consequently, connected miscellaneous petition is closed.
13.02.2020
Index : Yes/No
Internet : Yes/No
ta
To
1.The Family Court, Madurai.
2.The Judicial Magistrate Court, Arakkonam
TR.C.M.P.(MD)No.2 of 2020
http://www.judis.nic.in
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