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2008 DIGILAW 378 (JK)

Asha Devi v. Ashok Kumar

2008-10-13

SUNIL HALI

body2008
1. A matrimonial dispute is pending before the Additional District Judge (Matrimonial Cases) between the parties. Respondent seeks dissolution of marriage under section 13 of Jammu and Kashmir Hindu Marriage Act, 1980 ( for short referred to as the Act) by granting decree of divorce in his favour. This case was being contested by the parties before the trial court. 2. The petitioner has filed transfer application seeking transfer of case from the District Matrimonial Court, Jammu to Samba in view of creation of new District. She has also stated that it will be for the convenience of the parties that the matter is heard by District Court Samba. She has given details that both the parties reside in Tehsil Samba and it will be convenient for them to appear at Samba. 3. Mr. Johal has taken a legal plea that this court has no jurisdiction to transfer a matrimonial dispute to any other court while exercising power under section 24 of CPC. He states that J&K Hindu Marriage Act which is a special Act, the power to transfer cases can be exercised only by invoking section 24 of Act. According to Mr. Johal, section 24 terms transfer of a petitions under the Act only in certain cases details of which are given herein below. 4. Since the Act provides transfer only in certain cases, this court cannot while exercising power under section 24 of the Act transfer any other case except the one which is enumerated under section 24 of the Act. 5. I have heard the learned counsel for the parties and perused the record. In order to understand the controversy raised by Mr. Johal it is important to enumerate section 24 of the Act herein below:- 24. 5. I have heard the learned counsel for the parties and perused the record. In order to understand the controversy raised by Mr. Johal it is important to enumerate section 24 of the Act herein below:- 24. Power to transfer petition in certain cases (1) Where- (a) a petition under this Act has been presented to a District court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for a judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, The petitions shall be dealt with as specified in sub-section (2) (2) In a case where sub-section (1) applies,- (a) if the petitions are presented, to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented. (3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, Svt. 1977 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending shall exercise its power to transfer such later petition as if it had been empowered so to do under the said Code. 6. Perusal of section 24 of the Act reveals that the court has the power to transfer a case if the matrimonial proceedings are simultaneously being pursued in two different courts. Section 24 clearly envisages that in case proceedings are pending in two different District Courts then one which was filed later shall be heard only in the District where earlier petition has been filed. Object of this section seems to be that proceedings which are simultaneously being filed in two different courts, the court has power to transfer the one which has been filed latter. Object of this section seems to be that proceedings which are simultaneously being filed in two different courts, the court has power to transfer the one which has been filed latter. The question arises for consideration is as to whether power under section 24 of CPC is restricted or is taken away by section 24 of the Act. In my view section 24 of the Act deals with the power to transfer petitions and direct their joint or consolidated trial in certain cases and is not exhaustive. As a matter of fact, this provision is traceable to principle laid down under section 10 of CPC. Even though section 10 CPC seeks stay of the suit which is filed later at any point of time under section 24 of the Act no such restriction is envisaged. Principle underlying both the provisions is that two sets of proceedings of same nature cannot be tried at two different places. This in my opinion restrict the power of the court to transfer the petition under section 24 of the Act. 7. Ms Sweta Sambyal learned counsel for the petitioner has placed reliance on the judgment reported in AIR 1981 SC 1143 titled Guda Vijayalakshmi vs. Guda Ramachandra Sekhara Sastry). The relevant portion of the judgment reads as under:- It cannot be said that the substantive provision contained in S. 25 Civil P.C. is excluded by reason of Sec. 21 of the Hindu Marriage act, 1955. In terms of section 21 does not make any distinction between procedural and substantive provisions of Civil P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase as far as may be means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into Section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. 8. 8. The import of aforesaid judgment clearly reveals that the substantive provision in section 25 of CPC cannot be excluded by section 24 of Hindu Marriage Act. Implicit in such observation is the fact that it is only in cases of inconsistency between the Special Act with the General Act which would exclude jurisdiction of the court in exercising power under section 24 of CPC. Section 24 of the Act only gives power to the court to consolidate the proceedings pending in different courts in respect of the same parties. Section 24 of the Act is only a procedural and not substantive in character. 9. In my view the powers to transfer cases under the Hindu Marriage Act are not taken away by section 24 of the Act. 10. There is another aspect of the case also that since separate district has been created for Samba; all the cases relating to that area are required to be transferred there. This matter has to go to Samba for trial for which no separate orders are required from this court. The court may only have power to retain at Jammu that too under section 24 of CPC. I allow this petition and direct that the case be transferred to District Court Samba. 11. File of the case be also sent to the Matrimonial court at Samba by the court at Jammu. The parties are directed to appear before the court at Samba on 30.10.2008.