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2012 DIGILAW 3193 (MAD)

V. Saravanan v. S. P. M. Sheela

2012-07-20

S.NAGAMUTHU

body2012
Judgment :- 1. The petitioner is the husband of the 1st respondent. On the complaint made by the 1st respondent, the 2nd respondent registered a case in Crime No.7 of 2011 and filed a final report before the learned Judicial Magistrate No.II, Salem for offences under Sections 498-A, 294-B of IPC and Section 4 of Dowry Prohibition Act. 2. The petitioner has filed HMOP.No.27 of 2011 before the Principal Subordinate Court, Perundurai against the 1st respondent for divorce under Section 13(i)(a) of the Hindu Marriage Act, 1955. On transfer, the same is pending on the file of the Family Court, Salem in FCOP.No.5 of 2012. 3. While so, the petitioner has come up with this petition seeking transfer of the case in C.C.No.122 of 2012 on the file of the Judicial Magistrate No.II, Salem, to the file of the Family Court, Salem on the ground of convenience and for better appreciation of evidence so as to avoid conflicting judgments being delivered by two different courts. 4. I have heard the submission of the learned Counsel for the petitioner and also I have perused the materials available on record. 5. When this Court pointed out to the learned Counsel for the petitioner that a Family Court constituted under the Family Courts Act, 1984, has got no jurisdiction to try any criminal case for want of conferment of any magisterial power, the learned Counsel submitted that as per Section 407 of the Code of Criminal Procedure, such transfer can be made. I find it difficult to pursue myself to accept the said contention of the learned Counsel for the petitioner. I want to state that Section 407 of Cr.P.C. speaks of grounds for transfer. Such transfer under Section 407 of Cr.P.C. can be made from one criminal court to another criminal court which are subordinate to the High Court. Of course, both the courts of Judicial Magistrate No.II, Salem and the Family Court, Salem are subordinate to this Court. But the Family Court at Salem is not a criminal court exercising magisterial powers to try any offence. In this regard, I may refer to Section 7 of the Family Courts Act, 1984 which reads as follows: "7. Of course, both the courts of Judicial Magistrate No.II, Salem and the Family Court, Salem are subordinate to this Court. But the Family Court at Salem is not a criminal court exercising magisterial powers to try any offence. In this regard, I may refer to Section 7 of the Family Courts Act, 1984 which reads as follows: "7. Jurisdiction-(1) Subject to the other provisions of this Act, a Family Court shall-(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being, in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the family court extends. Explanation : The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature namely:- (a) A suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) A suit or proceeding for a declaration as to the legitimacy of any person; (f) A suit or proceeding for maintenance; (g) A suit or proceeding in relation to the guardianship of the person or the custody of, or access to any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment." 6. From the above provision, it is crystal clear that a Family Court exercises only a civil court jurisdiction and the jurisdiction of a magistrate only in respect of maintenance proceedings. There is no power conferred by the Act to try any offence. In other words, a Family Court is not a criminal court in terms of Section 6 of Cr.P.C. Therefore, a Family Court cannot try any criminal case. Under Section 407 of Cr.P.C., this Court can transfer a criminal case from a subordinate criminal court to any other subordinate criminal court. Since the Family Court is not a criminal court, though subordinate, the transfer as sought for by the petitioner cannot be granted at all. In such view of the matter, the petition deserves only to be dismissed. 7. In the result, the Criminal Original Petition is dismissed. Consequently, connected Miscellaneous Petition is closed.