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2000 DIGILAW 329 (PAT)

Kiran Jha v. Manishi Madhukar

2000-02-29

SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT S.J. MUKHOPADHAYA, J. The petitioner-Manishi Madhukar (of M.J.C. no. 346/98(R)) is the husband whereas petitioner-Smt. Kiran Jha (of M.J.C. no. 1967/ 98) is the wife. The wife, Smt. Kiran Jha has preferred a Matrimonial Suit no. 128/97 in the court of learned Principal Judge, Family Court, Dhanbad for restitution of her conjugal rights under section 9 of the Hindu Marriage Act, 1955. On the other hand, the husband, Madhukar has preferred a Matrimonial suit no. 12/95 in the court of learned District Judge, Bhagalpur u/s. 13 of the Hindu Marriage Act for dissolution of marriage by decree of divorce. 2. While M.J.C. No. 346/98 (R) has been preferred by petitioner Manishi Madhukar, at Ranchi Bench of this court, u/s 24 of the C.P.C. for transfer of Matrimonial suit no. 1281 97 from the Court of learned Principal Judge, Family Court, Dhanbad to the court of learned District Judge, Bhagalpur, the wife-Smt. Kiran Jha has preferred M.J.C. no. 1967/98 at Patna High court for transfer of matrimonial suit no.12/95 from the court of learned District Judge, Bhagalpur to the court of learned Principal Judge, Family Court Dhanbad. 3. Admittedly, the husband and wife are not living together. The wife Smt. Kiran Jha while residing with her father at Dhanbad, the husband-Manishi Madhukar is residing at Delhi being posted therein. The father of the husband is at Bhagalpur. None of them are residing at Bhagalpur, except father-in-law of the lady. It is not in dispute that both the parties want the case to be heard together, by same court both being interrelated. The main plea for transfer of the case taken by the wife-Smt. Jha is that neither the marriage was solemnised at Bhagalpur, nor they lastly resided at Bhagalpur. Even at the time of presentation of the matrimonial suit at Bhagalpur neither the husband nor the wife were residing there. The suit for dissolution of marriage has been preferred by the husband-Manishi Madhukar with malafide intention to harass the wife, having no reasonable or rational nexus to file the same at Bhagalpur. Different facts relating to lodging of criminal case etc. The suit for dissolution of marriage has been preferred by the husband-Manishi Madhukar with malafide intention to harass the wife, having no reasonable or rational nexus to file the same at Bhagalpur. Different facts relating to lodging of criminal case etc. while pleaded by the wife, it is specifically stated that the husband filed a petition u/s 21-A of Hindu Marriage Act in the Family Court at Dhanbad to return matrimonial petition to the wife with a direction to file the same in the court of District Judge, Bhagalpur as per Order 7, rule 10 of C.P.C. on 8.12.1997. The husband filed a petition in the said Family Court, Dhanbad to allow him to be represented through a lawyer, which was rejected. The Civil Revision application preferred by husband before the Ranchi Bench of this Court against such order, was dismissed. Therein, this Court observed that the husband was at liberty to file a petition for transfer of suit, before the right jurisdiction (patna High Court). 4. The counsel for the husband did not choose to reply on the question as raised by the wife for transfer of case from Bhagalpur to Dhanbad. He mainly raised the question of jurisdiction of the Court and maintainability of the present petitions. The submission made by the counsel of the husband is as follows: (a) The Patna High Court at Patna has no jurisdiction to transfer a case at Dhanbad, as the area falls within the jurisdiction of Ranchi Bench of the Patna High Court. It was submitted that as the Court lack such jurisdiction at Patna to transfer the case from Bhagalpur to Dhanbad, M.J.C. no. 19671 98 preferred by the wife should be dismissed. Reliance placed on the decision of the Full Bench of this Court in the case of Syed Zafrul Hasan and another vrs. State ( 1986 PLJR 274 ; AIR 1986 Patna 1994) and a Bench decision of this Court in the case of Dr. Sanjoy Kumar Sinha vrs. State of Bihar & others (1989 PLJR 759). (b) If the suit for dissolution is transferred from the court of District Judge, Bhagalpur to Family Court at Dhanbad, the husband will lose valuable right to persue the case through lawyer, there being bar of engagement of lawyer under the Family Court Act. 5. Sanjoy Kumar Sinha vrs. State of Bihar & others (1989 PLJR 759). (b) If the suit for dissolution is transferred from the court of District Judge, Bhagalpur to Family Court at Dhanbad, the husband will lose valuable right to persue the case through lawyer, there being bar of engagement of lawyer under the Family Court Act. 5. The aforesaid submission made by the counsel for the husband-Manishi Madhukar is mis-conceived and if accepted, will not only render a party remediless for transfer of a case from South Bihar (Chotanagpur region) to North Bihar and vice versa but on same ground, the transfer petition preferred by the husband (M.J.C. no. 346/98 (R» is to be held to be not maintainable. When confronted with the aforesaid situation, the counsel for the husband merely replied that the Chief Justice of Patna High Court in his administrative capacity having transferred the case from Ranchi Bench to Patna, this Court from Patna can direct to transfer the case from Dhanbad to Bhagalpur u/s. 24 of C.P.C. However, no reason/ground shown to advance such argument. In the case of Syed Zafrul Hasan (AIR 1996 Patna 194), the Full Bench dealt the question of jurisdiction of Ranchi Bench of the Patna High Court and the Patna High Court at Patna as provided under "the High Court at Patna (Establishment of a Permanent Bench at Ranchi) at (57 of 1976)." while determined such question, the Full Bench made the following observations: "Reading Articles 214 and 225 together would leave no manner of doubt that the territorial jurisdiction of the High Court is maintained to be the same as immediately before the commencement of the Constitution subject to any changes made later with regard thereto by the appropriate legislature. Thus, the jurisdiction of the High Courts was clearly rooted to the Provinces earlier and to the corresponding States later." "Once it is held as above, the subsidiary issue whether the Ranchi Bench of this High Court would have jurisdiction in the present case would be in a narrow compass. It is a common ground that the said Bench was constituted by the High Court at Patna (Establishment of a Permanent Bench at Ranchi Act, 1976). It is a common ground that the said Bench was constituted by the High Court at Patna (Establishment of a Permanent Bench at Ranchi Act, 1976). Section 2 of the said Act is in the following terms:- "There shall be established a Permanent Bench of the High court of Patna at Ranchi, and such Judges of the High Court at Patna, being not less than three in number, as the Chief Justice of that High Court may, from time to time, nominate, shall sit at Ranchi in order to exercise that jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Hazaribagh, Giridih, Dhanbad, Ranchi, Palamau and Singhbhum: Provided that the Chief Justice of that High Court may, in his discretion, order that any cases or class of cases arising in any such district shall be heard at Patna." After the establishment of Permanent Bench at Ranchi new rules were framed by the Patna High Court in respect of filing and hearing of cases relating to the districts within the' jurisdiction of the Ranchi Bench (C.S.No.11 dated 25.3.1976). Rule No.3, which is relevant, is as follows:" All cases arising in the district of Hazaribagh, Giridih, Dhanbad, Ranchi, Palamau and Singhbhum will be filed and heard at Ranchi: Provided that the Chief Justice of the High Court may in his discretion, order that any case arising in such district shall be heard at Patna." It necessarily follows from the aforesaid section 2 of the Ranchi Bench Act and rule 3 of the Rules of the Patna High Court that after the establishment of a Permanent Bench at Ranchi, that Bench alone has now to exercise jurisdiction and power for the time being vested in the Patna High Court arising out of cases in the districts of Hazaribagh, Giridih, Dhanbad, Ranchi, Palamau and Singhbhum. Learned counsel for the State had rightly contended that if the parties were allowed to whimsically select the jurisdiction from which Bench of the High Court they would seek redress, it would violate both the letter and spirit of the statutory provisions. Further, it would render the proviso to section 2 of the Ranchi Bench Act as also the proviso to rule 3 wholly nugatory." 6. Further, it would render the proviso to section 2 of the Ranchi Bench Act as also the proviso to rule 3 wholly nugatory." 6. Thus, it will be evident that the jurisdiction of the Permanent Bench at Ranchi or Patna High Court is 'to be seen for the purpose of filing of a case on the basis of place in which such cause of action takes place. While Ranchi Bench alone has power to exercise jurisdiction and power for the time being vested in the Patna High Court arising out of cases in the districts of Hazaribagh, Giridih, Dhanbad, Ranchi, Palamu and Singhbhum, the Patna High Court is to exercise such jurisdiction and power arising out of cases in the rest of the State of Bihar, except the aforesaid districts. Thereby, for transfer of a case from Dhanbad to another district while petition u/s 24 to be filed before the Ranchi Bench of the Patna High Court, to transfer a case from Bhagalpur to another district, such application u/s 24 to be filed in the Patna High court at Patna, as correctly made by the parties while they filed the present cases. So far as right of a person to defend/ persue a case through lawyer is concerned, it is not a fundamental right nor a constitutional or statutory right guaranteed under the law. If the provision of Family Court Act debars engagement of lawyer, it will be equally applicable to both the parties and no allegation bf discrimination can be levelled. 7. For the reasons aforesaid, I reject the objections as raised on behalf of husband-Manishi Madhukar. As the wife is residing at Dhanbad; the husband is residing at Delhi and, the marriage did not took place at Bhagalpur, I find -hat a case made out by the wife for transfer of a Matrimonial suit no. 12/95 from Bhagalpur to Dhanbad. Accordingly, I direct to transfer Matrimonial suit no. 12/95 from the court of learned District Judge. Bhagalpur to the court of learned Principal Judge, Family Court, Dhanbad where Matrimonial Suit no. 128/97 is pending. 8. In the result, M.J.C. no. 1967/98 is allowed and M.J.C. no. 346/98(R) is dismissed. However, in the facts and circumstances, there shall be no order, as to costs.