Madras High Court
N.Pakthavathsalam vs K.Pramila on 7 February, 2017
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.02.2017
CORAM
THE HON'BLE MRS.JUSTICE PUSHPA SATHYANARAYANA
TR.CMP.SR No.83046 of 2016
N.Pakthavathsalam .. Petitioner
vs
1. K.Pramila
2. Minor P.Sri Akshara
rep.by guardian and mother
Pramila .. Respondents
Prayer: Transfer Civil Miscellaneous petition filed under Section 24 of the Code of Civil Procedure seeking to withdraw the case pending in M.C.No.30 of 2016 on the file of the Judicial Magistrate Court, Thanjavur and to transfer the same to the file of the Sub Court, Tambaram to be tried along with HMOP No.59 of 2016 pending on its file.
For Petitioner : Ms.S.Aparna
ORDER
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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
07.02.2017 vj2 Index : Yes/No Internet: Yes PUSHPA SATHYANARAYANA,J., vj2 To
1. The Judicial Magistrate Court, Thanjavur
2. The Sub Court, Tambaram TR.CMP.SR.No.83046 of 2016 07.02.2017 http://www.judis.nic.in