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2016 DIGILAW 261 (TRI)

Dipika Sharma (Chakraborty), W/o Shri Sudip Sharma v. Sudip Sharma, S/o Shri Dinesh Sharma

2016-09-16

S.C. DAS, T.VAIPHEI

body2016
JUDGMENT & ORDER : S.C. Das, J. By a common order dated 17.11.2015, passed in TRP(C) 9/2015; TRP(C) 10/2015 and TRP(C) 11/2015, Chief Justice of this Court, while sitting in Single Bench, formulated the following two issues for decision by a Division Bench. The issues were— 1. Whether petitions can be transferred from the Court of the District Judge to the Family Court in another District? 2. Whether the proceedings pending before the Family Court in one District can be transferred to a District Judge in another District where there is no Family Court? 2. Subsequently three other transfer petitions i.e. TRP(C) 13/2015; TRP(C) 14/2015 and TRP(C) 1/2016, wherein also common questions were involved, tagged together with the aforesaid three transfer petitions for decision on the aforesaid two issues. 3. We have heard learned counsel of the parties on the above mentioned two issues at length. 4. In the State of Tripura, there are five judicial districts. Family Courts have been established in the head quarter of three Judicial Districts i.e. at Agartala in the West Tripura District, Kailashahar in the present Unakoti District and Udaipur in the present Gomati District. In the rest two Judicial Districts i.e. North Tripura and South Tripura, no Family court has yet been established. The local jurisdiction of the respective Family Courts set up at Agartala, Udaipur and Kailashahar has been notified. 5. The jurisdiction of the Family Court has been prescribed in Section 7 of the Family Courts Act, 1984 which reads thus— “7. In the rest two Judicial Districts i.e. North Tripura and South Tripura, no Family court has yet been established. The local jurisdiction of the respective Family Courts set up at Agartala, Udaipur and Kailashahar has been notified. 5. The jurisdiction of the Family Court has been prescribed in Section 7 of the Family Courts Act, 1984 which reads thus— “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. As prescribed under Section 8 of the Family Courts Act, the jurisdiction of the District Court and the subordinate civil Court was excluded in respect of the matters in which the Family Court was vested with the jurisdiction. Section 8 reads 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 proceeding of the nature referred to in the Explanation to that subsection; (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or power 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 proceeding 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.” 7. It is, therefore, apparent that where a Family Court has been set up/established, the District Court or subordinate Civil Court or the Court of Judicial Magistrate cannot exercise jurisdiction in respect of the matters to which the Family Court is authorised to exercise its jurisdiction. 8. All the 6(six) transfer petitions pending before us were filed under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of matrimonial proceedings from the District Court to Family Court and vice versa. 9. Learned Sr. counsel, Mr. 8. All the 6(six) transfer petitions pending before us were filed under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of matrimonial proceedings from the District Court to Family Court and vice versa. 9. Learned Sr. counsel, Mr. K.N. Bhattacharjee appearing for the petitioner argued that the High Court has been vested with the power under Section 24 of the Code of Civil Procedure, 1908 (for short, CPC) to transfer any suit or proceeding of civil nature from one Court to another Court and since the Family Court is subordinate to the High Court, in exercise of that power, the High Court can transfer a proceeding from Family Court to District Court and from District Court to Family Court or from District Court to District Court. 10. Ms. S. Deb Gupta, learned counsel, has also submitted that there is no bar imposed under the Family Court in transferring a proceeding from the Family Court to District Court or from District Court to Family Court in another District. 11. Learned counsel, Mr. A. Lodh and Mr. K.K. Pal submitted that the Family Courts Act is a special Law enacted by the Parliament to deal with the family disputes and the scheme of the Act is different than that of the normal procedure prescribed for dealing with a civil or criminal case. They referred to the object and reasons to the bill of the Family Courts Act and submitted that once a matrimonial dispute is taken up before the Family Court, it should not be transferred to any other Civil or Criminal Court in ordinary process. It is, however, submitted that there are many instances that the High Courts and the Supreme Court allowed transfer of the matrimonial proceedings from the Family Court to District Court and the District Court to Family Court in the particular facts and circumstances of the particular case. 12. Learned counsel of the parties referred various case laws which we will discuss later on. 13. Section 24 of the CPC empowers the High Court to withdraw and transfer any suit of civil nature from one Civil Court to another Civil Court from one District to another District within the jurisdiction of the High Court. For ready reference let us reproduce here Section 24 which reads as follows:- 24. 13. Section 24 of the CPC empowers the High Court to withdraw and transfer any suit of civil nature from one Civil Court to another Civil Court from one District to another District within the jurisdiction of the High Court. For ready reference let us reproduce here Section 24 which reads as follows:- 24. General power of transfer and withdrawal.—(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage— (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or, (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and— (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. [(3) For the purposes of this section,- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) “proceeding” includes a proceeding for the execution of a decree or order] (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]” 14. Section 10 of the Family Courts Act prescribes the procedure to be followed in the Family Court which reads thus:- “10. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]” 14. Section 10 of the Family Courts Act prescribes the procedure to be followed in the Family Court which reads thus:- “10. Procedure generally.-- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.” 15. Section 4 of CPC prescribes— “4. Savings.—(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. (2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.” 16. A careful reading of the above provisions, makes it abundantly clear that a proceeding before the Family Court shall be dealt with, as per the procedure prescribed in the Act itself. A careful reading of the above provisions, makes it abundantly clear that a proceeding before the Family Court shall be dealt with, as per the procedure prescribed in the Act itself. The procedural law so far prescribed in the Code of Civil Procedure which is not in conflict and/or inconsistent with the provisions of the Family Courts Act and Rules framed thereunder shall apply. Admittedly, in the scheme of the Family Courts Act, there is no provision of transfer of a proceeding from one Family Court to another Family Court or from a Family Court to a District Court and from a District Court to Family Court. Since there is no such provision prescribed in the Family Courts Act, the general provision prescribed under Section 24 of the Code of Civil Procedure in respect of all civil proceedings, in our considered opinion, shall apply. 17. A Family Court is also entrusted with the jurisdiction to deal with the petition seeking maintenance under Chapter IX of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.). A petition seeking maintenance under Chapter IX of Cr.P.C. is ordinarily dealt with by a Magistrate of the 1st Class. So, the matter which is ordinarily dealt with by a 1st Class Judicial Magistrate is also vested with the Family Court. The question, therefore, arose whether any such proceeding pending before the Family Court also can be transferred from the Family Court to Magisterial Court or from Magisterial Court to the Family Court. Though the issues formulated in the present transfer petitions are not regarding the maintenance matter under Chapter IX, but these points were also raised by the learned counsel of the parties while arguing on the issues formulated for decision in the context. 18. The Family Court is a creation of the statute to deal with the matrimonial proceedings which is ordinarily dealt with by the civil Court and the quasi civil/quasi criminal proceedings which is dealt with by Magisterial Courts. Certain procedure has been prescribed under the Family Courts Act to deal with such proceedings by the Family Court. 19. Section 407 of Cr.P.C. prescribes power of the High Court to transfer cases and appeals from one criminal Court to another criminal Court. That provision is also not inconsistent with the procedure prescribed under the Family Courts Act or Rules framed thereunder. 20. 19. Section 407 of Cr.P.C. prescribes power of the High Court to transfer cases and appeals from one criminal Court to another criminal Court. That provision is also not inconsistent with the procedure prescribed under the Family Courts Act or Rules framed thereunder. 20. A Single Bench of the Madras High Court in the case of Usha @ Ramalakshmi & Anr. Vrs. P. Shanmugam in Tr.C.M.P.Nos.138 and 139 of 2006, decided on 30.08.2006 referring to numerous Apex Court decisions and High Court decisions, has observed that the power of the High Court to transfer cases cannot be whittled down so far as the matrimonial proceedings, initiated in the Courts subordinate to the High Court. The Court has observed that there is no provision in Hindu Marriage Act or the Family Courts Act ousting the power of the High Court under Section 24 of CPC. 21. A Single Bench of the Andhra Pradesh High Court in the case of P. Himabindu Vrs. P. Jayasimharaja in Tr.CMP. No.190/05, decided on 27-10-2005, in the given facts of that case has allowed transfer of a case from the Court of Principal Senior Civil Judge to the Family Court for trial and disposal. 22. The Gauhati High Court in the Case of Pallavi Saikia (Bharali) Vrs. Mirganka Bharali, reported in (2006) 2 GLR 135 in the given facts and circumstances of that case allowed transfer of a matrimonial petition from the Family Court, Gauhati to the Court of District Judge at Shibsagar. 23. A Single Bench of Andhra Pradesh in the case of V. Sailaja Vrs. Koteswara Rao, reported in AIR 2003 AP 178 has observed that under Section 24 of CPC, the High Court has got unquestionable power to transfer cases from one Court to the other Court. Similarly, as the Family Court is also a Court subordinate to the High Court and is subject to the provisions of the Code of Civil Procedure, the High Court is empowered under Section 24 of CPC to transfer cases from one Family Court to the other Family Court. The High Court has also observed that where a Family court has not been set up, the High Court in exercise of power under Section 24 can transfer a case from Family Court to other Court where no Family court has been constituted. 24. The High Court has also observed that where a Family court has not been set up, the High Court in exercise of power under Section 24 can transfer a case from Family Court to other Court where no Family court has been constituted. 24. A Division Bench of the Alahabad High Court in the case of Munna Lal & etc. v. State of U.P. & Anr., reported in AIR 1991 Allahabad 189 has held that Family Court, when exercising power and jurisdiction relating to the matters referred to in explanation to sub-Section (1) of Section 7 of the Act, is a civil Court, and as such, High Court has the jurisdiction to transfer the cases from one Family Court to another under Sections 22, 23 and 24 of CPC. Similarly, when Family Court is exercising the powers and jurisdiction under Chapter IX of the Cr.P.C., it is criminal Court equivalent to the Magistrate 1st Class and High Court will have the power to transfer the case from one Family Court to another under Section 407 of Cr.P.C. 25. A Single Bench of Madras High Court in the case of K.R. Srinathi v. H. Ramakrishnan, reported in AIR 1990 Madras 330 has held that a proceeding pending before the Family Court can be transferred under Section 24 to any of the competent Civil Court subordinate to the High Court. 26. The case of Sumita Singh v. Kumar Sanjay, reported in AIR 2002 SC 396 is on a different context and it relates to transfer of case from the District Court under one High Court to the District Court in another High Court. 27. The case of Balwinder Kaur v. Hardeep Singh, reported in (1997) 11 SCC 701 has no relevance in the context of issues involved in this case. 28. In the case of Durgesh Sharma v. Jayshree (Civil Appeal No.5857/2008), the Supreme Court dealt with the issue of transfer from one District Court to another District Court under different High Court and has held that High Court has no power to transfer cases from a District Court of one High Court to the District Court of another High Court. 29. The provision prescribed under Section 24 of CPC authorizes the High Court to transfer any suit or proceeding from one Civil Court to another Civil Court under its jurisdiction. 29. The provision prescribed under Section 24 of CPC authorizes the High Court to transfer any suit or proceeding from one Civil Court to another Civil Court under its jurisdiction. It is obvious that the High Court cannot transfer a case from one subordinate Court to another subordinate Court under different High Courts and that power is vested to the Supreme Court under Section 25 of CPC. 30. While a Family Court is established as per the provisions of the Family Courts Act, it shall have jurisdiction to deal with the matters contained in Section 7 of the Act exclusively since the Act has overriding effect over any other law as prescribed in Section 20 of the Act. 31. The scheme of the Family Court has prescribed certain specific procedure such as taking of effort for settlement; taking of assistance of medical and welfare experts as well as consideration of the statement/document which is not otherwise admissible as per the Evidence Act. Those are some special features of the Family Courts Act. In the Family Court a representation by a legal practitioner is prohibited but the Family Court in the interest of justice may seek assistance of Amicus Curiae. 32. The Hindu Marriage Act also has embodied certain special provisions regarding trial and disposal of petitions under the Hindu Marriage Act, such as acceptance of documentary evidence and trial in camera etc. as contained in Section 21(b), 21(c) and 22 of the Act. 33. Order XXXII (A) of CPC has been inserted in the year 1976 incorporating therein the provisions relating to the matters concerning family. The provision prescribed under XXXII (A) is almost similar to that of the provisions prescribed in the Family Courts Act so far as the proceedings to be held in camera, the duty of the Court to make efforts for settlement, to take assistance of welfare experts, duty to enquire into the facts etc. 34. So, it cannot be said that once a proceeding from Family Court to a District Court is transferred, the parties will be deprived of the special provisions of the Family Courts Act. 34. So, it cannot be said that once a proceeding from Family Court to a District Court is transferred, the parties will be deprived of the special provisions of the Family Courts Act. Be that as it may, the Family Courts Act has not as a whole excluded the application of CPC or Cr.P.C. The provisions of the procedural law prescribed in the CPC, Cr.P.C. or in the Evidence Act which is not in conflict and/or inconsistent with the provisions of the Family Courts Act shall apply in respect of proceedings to which the Family Court exercises jurisdiction. Once, the Family Court is also a Court subordinate to the High Court, the High Court’s power to transfer a proceeding from the Family Court to any other District Court or from the District Court to the Family Court cannot be said to have excluded or restricted. The High Court in exercise of power under Section 24 CPC, in our considered opinion has the power to transfer matrimonial proceedings from Family Court to Family Court or Family Court to District Court or District Court to Family Court and similarly, the High Court has also the power to transfer a proceedings under Chapter IX of the Cr.P.C. from the Family Court to the Magisterial Court and from Magisterial Court to Family Court and vice versa. 35. In view of the discussions made above, the petitions seeking transfer of the proceedings from Family Court to District Court or from District Court to Family Court are, therefore, maintainable and the High Court has power to entertain such petition for transfer. 36. The reference made by the Single Bench is answered accordingly. 37. The transfer petitions may be listed for hearing on its own merit.