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2021 DIGILAW 319 (TS)

Singam Vijetha v. Singam Srinivas

2021-11-02

A.VENKATESHWARA REDDY

body2021
ORDER : 1. This petition is filed under Section 24 of Civil Procedure Code by the petitioner/wife with a request to withdraw O.P. No. 834 of 2018 pending on the file of Judge, Family Court, at Kukatpally and to transfer the same to the Court of Senior Civil Judge, Jagitial, Karimnagar District. 2. The petitioner is the legally wedded wife of the respondent, and their marriage was performed on 02.11.2008 as per Hindu rites and customs at Jagitial. Out of wedlock, they were blessed with two children. After she begot second child, the respondent-husband deserted her and she is forced to join her parents at Jagitial. The respondent husband is resident of Sri Ramulapally village of Jammikunta Mandal, Karimnagar District, but intentionally in the Divorce O.P. he has shown his address as within the limits of Kukatpally, Ranga Reddy District, only to gain territorial jurisdiction of Family Court, Ranga Reddy District. The respondent failed to pay any maintenance to the petitioner or their children. It is causing hardship to the respondent and her children to attend each and every date of hearing in the Court at Kukatpally. She is dependent on her parents for her maintenance and for the maintenance of her children. 3. Notice served on the respondent. No counter filed. 4. Heard on both sides. 5. Learned counsel for the petitioner-wife seeks to submit that the petitioner and her minor children are totally dependent on her parents as she has no independent source of income. The respondent failed to pay maintenance and therefore to avoid inconvenience and safety of the petitioner and their minor children, it is just and essential to withdraw the O.P. No. 834 of 2018 pending on the file of Judge, Family Court, at Kukatpally and transfer the same to the Court of Senior Civil Judge, Jagitial, Karimnagar District. 6. Learned counsel for the respondent resisted the transfer petition stating that the matter which is pending on the file of Family Court cannot be transferred to the Court of Senior Civil Judge and that the jurisdiction of Civil Court is ousted by virtue of Section 8 of the Family Courts Act, and argued that the matter pending on the file of a Family Court can only be transferred to another Family Court but not to a Civil Court or to the Court of Senior Civil Judge. He relied upon a judgment of this High Court in Tr. CMP No. 809 of 2016 and batch, dated 06.12.2018 and between Chakradharamahanthi Venkata Maikya Prasuna vs. C. Venkata Rama Murthy, 2019 (2) ALT 1 . Thus, the learned counsel for the respondent solely relying upon the above judgment resisted the transfer petition more on the point of law than on facts of the case. 7. The case of the petitioner-wife is that she has been living with her parents at Jagitial with her two minor children and it is extremely difficult for her to attend the Court at Kukatpally which is more than a distance of 150 kilometers from the place where she is living on account of her financial problem, convenience and safety of herself and her minor children. 8. In this backdrop, the question now emerges is whether a matrimonial dispute pending before a Family Court of competent jurisdiction can be transferred by the High Court in terms of Section 24 of CPC to any other Court having jurisdiction where no such Family Court is established. 9. On a perusal of the judgment in Prasuna (supra) referred to above, one of the guidelines framed is that matrimonial cases pending on the file of Judge, Family Court shall not be withdrawn and transferred to the Court of Senior Civil Judge, as the jurisdiction of Civil Court is ousted by Section 8 of the Family Courts Act. 10. The learned Single Judge of this Court has extensively discussed the power of the High Court in terms of Section 24 CPC, particularly in Para-100, observing that a Family Court is a Court subordinate to the High Court and that the power of the High Court to transfer a proceeding from the Family Court to any other District Court or from the District Court to Family Court, cannot be said to have been excluded or restricted. Thus, it is stated that the power of the High Court in terms of Section 24 CPC to transfer matrimonial proceedings from one Family Court to another Family Court or from one Family Court to the District Court or from the District Court to Family Court is not restricted. Thus, it is stated that the power of the High Court in terms of Section 24 CPC to transfer matrimonial proceedings from one Family Court to another Family Court or from one Family Court to the District Court or from the District Court to Family Court is not restricted. However, the transfer of matrimonial cases from a Family Court to a Civil Court having such jurisdiction was held impermissible owing to the hierarchical differentiation among the cadres of the Judges/Presiding Officers of the Court of Family Judge, and other equally competent Court viz. Court of Senior Civil Judge. 11. This Court in V. Sailaja vs. V. Koteswara Rao, (2003) 1 ALD 673 in the same context at Para 13 to 16 held as under: “13. On a plain reading of the provisions of Sections 7 and 8 of the Family Courts Act, it is clear that in respect of the matters which are enumerated in the Explanation to Section 7, the Family Court shall exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court. The Family Court shall also exercise the jurisdiction of the Magistrate of I Class in respect of a proceeding for maintenance filed under Chapter IX of the Code of Criminal Procedure, 1973. While so, Section 8 of the Act excludes the jurisdiction of Civil Courts/Magistrates of I Class in such of the Districts where Family Courts are constituted under the Family Courts Act. 14. On a careful reading of the language used in Section 8, I am of the opinion that the exclusion contemplated under Section 8 of the Act is only limited to the Districts where a Family Court is already constituted under the Family Courts Act, in which case, the jurisdiction of the Civil Courts in such Districts in respect of the matters which are mentioned in the Explanation to Section 7 of the Family Courts Act gets ousted. But, in places where Family Court is not constituted, then the said exclusion contemplated under Section 8 is not applicable to the Civil Courts which are functioning in such places. In such cases, the local Civil Courts will continue to exercise the jurisdiction in respect of all matrimonial matters. 15. But, in places where Family Court is not constituted, then the said exclusion contemplated under Section 8 is not applicable to the Civil Courts which are functioning in such places. In such cases, the local Civil Courts will continue to exercise the jurisdiction in respect of all matrimonial matters. 15. Coming to the power of the High Court under Section 24 C.P.C., as already stated, 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 the C.P.C. to transfer cases from one Family Court to the other Family Court. 16. But, the question in this case is whether this Court can transfer a case from the file of a Family Court to a Civil Court. As already stated, in the absence of constitution of a Family Court, the Civil Court is empowered to exercise jurisdiction in respect of matrimonial cases, by virtue of the provisions of Section 8. Therefore, in places where Family Court is not established, as the local Courts are vested with the jurisdiction to deal with matrimonial cases, such local Courts are competent to try the matrimonial cases of the nature which are mentioned in the Explanation to Section 7 of the Family Courts Act. In such a case, there may not be any bar under Section 8 of the C.P.C. from transferring the cases pending in a Family Court to such Civil Courts. Therefore, this Court in exercise of its jurisdiction under Section 24 of the C.P.C. can transfer cases which are instituted in a Family Court to the Courts within whose local jurisdiction no Family Court is constituted.” 12. Therefore, this Court in exercise of its jurisdiction under Section 24 of the C.P.C. can transfer cases which are instituted in a Family Court to the Courts within whose local jurisdiction no Family Court is constituted.” 12. The learned Judge in V. Sailaja (supra) in turn relied upon the earlier judgment of this Court in P. Jayalakshmi vs. V. Revichandran, AIR 1992 A.P. 190 in the same context wherein this Court, on a harmonious interpretation of Sections 7, 8 and 10 of the Family Courts Act, held that these provisions clearly indicate that there is no bar against the parties from approaching other competent Courts outside the jurisdiction of Family Court and that the exclusion of jurisdiction of Courts is confined only to the area over which the Family Court exercises jurisdiction. 13. It appears that the earlier rulings of this Court in V. Sailaja (supra) and P. Jayalakshmi (supra) were not brought to the notice of the learned Judge in Prasuna (1 supra), and accordingly the learned Judge in one of the guidelines in the above ruling held that matrimonial cases pending on the file of Judge, Family Court, shall not be withdrawn and transferred to the Court of Senior Civil Judge, on the premise of hierarchial differentiation among the cadres of Presiding Officers of the said Courts. 14. Further, in the case of Kaligithi Priyanka vs. Javudula Rajeev Gandhi, 2020 (3) ALD 87 in similar facts, learned Single Judge of Andhra Pradesh High Court while dealing with an application under Section 24 of CPC filed for transfer of matrimonial dispute pending before the Judge, Family Court, Visakhapatnam, to the Court of Senior Civil Judge, Amalapuram, discussed the judgment of Prasuna (supra) at length and preferred to rely on the observations of V. Sailaja’s case (supra) than Prasuna’s case (supra) referred to above and held as under: “12. When there are Courts, equally competent to consider and determine the matrimonial disputes, which have jurisdiction either under Hindu Marriage Act or any other law applicable it is rather difficult to draw any such distinction only on the premise of hierarchal differentiation among the cadres of the Presiding Officers manning either the family Court or the Court of ordinary civil jurisdiction conferred with matrimonial jurisdiction. 13. 13. In the light of this situation when right to justice is of primordial consideration, when a party requests transfer of his/her matter either from the Family Court to Court of ordinary civil jurisdiction, enjoying equal competence and efficacy similarly to apply the same provisions of substantive and procedural laws, it cannot be stated that such request shall be confined to a Court of equal status in hierarchal system prevalent in the State or in the country.” 15. Thus, when there are Courts equally competent to consider and determine the matrimonial dispute which have jurisdiction under the Hindu Marriage Act, or any other law applicable, it is rather difficult to draw any such distinction only on the premise of hierarchy of differentiation on the basis of the cadre and ranking of Presiding Officers of the Family Courts or the Courts of ordinary civil jurisdiction conferred with matrimonial jurisdiction. 16. Therefore, considering the facts of the present case, the language used in Section 8 of Family Courts Act, powers of this Court in terms of Section 24 of Civil Procedure Code, I prefer to rely on the observations in V. Sailaja (supra), in P. Jayalakshmi (supra) and also in K. Priyanka (supra), rather than the observations in Prasuna (1 supra) and hold that in places where Family Court is not established and the Civil Courts are vested with the jurisdiction to deal with the matrimonial disputes of the nature as mentioned in the explanation to Section 7 of Family Courts Act, in such a case, there is no bar from transferring cases pending in Family Court to such Civil Court or vice versa. This Court, in exercise of the powers under Section 24 of CPC, can transfer cases instituted in a Family Court to the Civil Court within whose local jurisdiction no Family Court is constituted. 17. The petitioner, along with her two minor children, is living with her parents at Jagitial, and her minor children are now in 4th class and LKG in St. Mary’s High School at Jagitial, and that the respondent husband failed to pay any maintenance, and that she has no independent source of income. It is also not the case of the respondent that the petitioner is gainfully employed, able to maintain herself and their minor children. Mary’s High School at Jagitial, and that the respondent husband failed to pay any maintenance, and that she has no independent source of income. It is also not the case of the respondent that the petitioner is gainfully employed, able to maintain herself and their minor children. Therefore, the convenience and hardship faced by the petitioner and the minor children is to be preferred over that of the respondent-husband. 18. The Hon’ble Supreme Court in Rajani Kishor Pardeshi vs. Kishor Babulal Pardeshi, (2005) 12 SCC 237 while dealing with transfer proceedings of matrimonial dispute held that in this type of matters, convenience of wife is to be preferred over the convenience of husband and accordingly transferred the HMOP pending before the Civil Judge (Senior Division) at Panvel, to the Family Court of proper jurisdiction, at Satana, Madhya Pradesh. 19. Therefore, on such a basis, when the facts of this case are considered, it is just and appropriate to withdraw the O.P. No. 834 of 2018 pending on the file of Judge, Family Court, at Kukatpally and transfer the same to the Court of Senior Civil Judge, Jagitial, Karimnagar District. 20. In the result, the Tr. CMP is allowed, and the O.P. No. 834 of 2018 pending on the file of Judge, Family Court, at Kukatpally, is withdrawn and transferred to the Court of Senior Civil Judge, Jagitial, Karimnagar District. The learned Judge, Family Court, Kukatpally, is directed to transmit the entire record in O.P. No. 834 of 2018, duly indexed, to the Court of Senior Civil Judge, at Jagitial, Karimnagar District, within one month from the date of receipt of a copy of this order. No costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.