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2008 DIGILAW 4665 (MAD)

V. Baskaran v. Kannika Devi

2008-12-15

P.MURGESEN

body2008
Judgment :- This petition is to transfer the case in H.M.O.P.No.170 of 2005 on the file of the Family Court, Madurai to the file of the III Additional Subordinate Court, Madurai, to be tried along with the petition for divorce filed by the petitioner herein in H.M.O.P.No.74 of 2004. 2. The petitioner is the husband and the respondent is the wife. The petitioner has filed H.M.O.P.No.74 of 2004 on the file of the III Additional Subordinate Court, Madurai, on the ground of cruelty and desertion under Sections 13(1)(1a) and 13 (1)(1b) of the Hindu Marriage Act, 1955. The respondent has filed H.M.O.P.No.170 of 2005 on the file of the Family Court, Madurai, for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. 3. Now, the petitioner has claimed that he filed the petition for divorce earlier. So, the case pending before the Family Court shall be transferred to the III Additional Subordinate Court, Madurai. In Madurai, the Family Court was constituted, under Section 8 of the Family Courts Act and the jurisdiction of the civil Court is excluded. Section 8 of the Family Courts Act, 1984, is as follows: "8. So, the case pending before the Family Court shall be transferred to the III Additional Subordinate Court, Madurai. In Madurai, the Family Court was constituted, under Section 8 of the Family Courts Act and the jurisdiction of the civil Court is excluded. Section 8 of the Family Courts Act, 1984, is as follows: "8. Exclusion of jurisdiction and pending proceedings.- 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 proceedings 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 proceeding 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 proceedings 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." 4. The learned Counsel for the petitioner relied on the decision in K.R. Srinathi v. H.Ramakrishnan reported in (AIR 1990 MADRAS 330) wherein this Court was of the considered view that the High Court is competent to transfer any case from the Family Court to any part of the area where the Family Court is not formed. The power of the High Court to transfer the case from the Family Court to any other civil Court, is considered and decided by this Court. 5. The power of the High Court to transfer the case from the Family Court to any other civil Court, is considered and decided by this Court. 5. He also cited the decision of this Court in Usha @ Ramalakshmi v. P.Shanmugam reported in (2006) 4 M.L.J 45 ) wherein this Court has considered the power of the High Court to transfer a case from the Family Court to any other competent civil Court. In both the above said decisions, the cases were transferred from the Family Court to the place where the Family Court was not established. But, in this case, the petitioner seeks transfer of the case from the Family Court to the III Additional Subordinate Court, within Madurai. It is argued that as per Section 19 of the Act, the husband has got the liberty to choose the place of Court. 6. No doubt, relating to the jurisdiction, as per Section 19 of the Act, the parties are at liberty to present their petitions, but it cannot take away the jurisdiction of the Family Court concerned as it is situated in Madurai. Though the basic principle of justice is to club all the cases and to avoid multiplicity of proceedings, the petitioner has to loose one more opportunity of appeal. But, at the same time, the jurisdiction of the Family Court cannot be thrown away. 7. The learned Counsel for the petitioner relied on the decision of the Honourable Apex Court in Anita Laxmi Narayan Singh v. Laxmi Narayan Singh reported in (AIR 1992 SUPREME COURT 1148) and argued that the petition which was filed later on, must be transferred to the place where earlier petition was filed. But, the said decision would not be helpful to the petitioner since the Family Court is constituted in this case. The Honourable Apex Court has given certain guidelines in respect of Courts having concurrent jurisdiction. But, in this case, the jurisdiction of the Family Court is clearly defined. It is not so that the cases pending in the Family Court, Madurai, can be transferred from the same Corporation limit of Madurai to some other Subordinate Courts and hence, the said guidelines are not applicable to the case on hand. Since the petitioner resides in Andaman and Nicobar Islands, both the matters shall be disposed of as expeditiously as possible. Since the petitioner resides in Andaman and Nicobar Islands, both the matters shall be disposed of as expeditiously as possible. Since Section 8 of the said Act is a bar to transfer H.M.O.P.No.170 of 2005 on the file of the Family Court, Madurai, to the file of the III Additional Subordinate Court, Madurai, the claim of the petitioner cannot be entertained. 8. In the result, this petition is dismissed. Consequently, the connected Miscellaneous Petitions are dismissed. No costs.