Jency vs Biju Thomas on 22 September, 2005

    Jency vs Biju Thomas on 22/9/2005

ORDER

   K.T. Sankaran, J.

   1. The petitioner, who is the wife of the respondent, prays for a transfer of
O.P.No. 754 of 2004 pending before the Family Court, Ernakulam to the Principal
Family Court, Chennai. The Transfer Petition is filed under Section 24 of the
Code of Civil Procedure. Though Sections 22 and 23 are mentioned in the Tr.P.C.,
these sections are seen struck off. The O.P. was filed by the respondent for
dissolution of marriage.

   2. The material facts are not in dispute, though these facts are not stated
either in the Transfer Petition or in the counter filed by the respondent.
Counsel appearing for both sides submitted that the marriage between the
petitioner and the respondent was solemnized at Ernakulam, within the
jurisdiction of the Family Court, Ernakulam. It is also submitted that the
petitioner and the respondent were residing together in Dubai for quite
sometime. It is averred in the O.P. for dissolution of marriage filed by the
respondent that the parties last resided together at Ernakulam. This averment is
not denied in the Transfer Petition. The petitioner in the Transfer Petition has
not filed any objections in the O.P. pending before the Family Court, Ernakulam.
Counsel for the petitioner submitted that the averment in the O.P. that the
parties last resided together at Ernakulam is not correct and that they last
resided together in Dubai. Since no such averment is available anywhere in the
pleadings, it is to be taken for the purpose of this Transfer Petition that the
parties last resided together at Ernakulam. This will not preclude the
petitioner from raising any objection on that aspect before the Family Court.

   3. Section 24 of the C.P.C. does not apply at all to the facts of the case.
By exercising power under Section 24, this Court can transfer a suit, appeal or
proceedings only to a court subordinate to this Court. A suit or proceedings
cannot be transferred to a Court outside the State by exercising jurisdiction
under Section 24 of the C.P.C. Under Clause (a) of Sub-section (1) of Section 24
of the C.P.C., this Court can transfer any suit, appeal or other proceeding
pending before it to any Court subordinate to it and competent to try and
dispose of the same. Under Clause (b) of Sub-section (1) of Section 24, a High
Court can withdraw any suit, appeal or other proceedings pending in any
subordinate court and either dispose it of or transfer it to any Court
subordinate to the High Court or re-transfer the same to the Court from which it
was withdrawn. Sub-section (1) of Section 24 does not apply at all in the case
of transfer of a suit, appeal or other proceedings from a Court subordinate to a
High Court to another Court within the jurisdiction of another High Court.

   4. Counsel for the petitioner contended that the Transfer Petition is
maintainable under Section 23(3) of C.P.C. In order to apply Section 23, the
ingredients of Section 22 should be satisfied. Sections 22 and 23 read as
follows:

     "22. Power to transfer suits which may be instituted in more than one
Court: -- Where a suit may be instituted in any one of two or more Courts and is
instituted in one of such Courts, any defendant, after notice to the other
parties, may, at the earliest possible opportunity and in all cases where issues
are settled at or before such settlement, apply to have the suit transferred to
another Court, and the Court to which such application is made, after
considering the objections of the other parties (if any), shall determine in
which of the several Courts having jurisdiction the suit shall proceed.

     "23. To what Court application lies:--

     (1) Where the several Courts having jurisdiction are subordinate to the
same Appellate Court, an application under Section 22 shall be made to the
Appellate court.

     (2) Where such Courts are subordinate to different Appellate Courts but to
the same High Court, the application shall be made to the said High Court.

     (3) Where such Courts are subordinate to different High Courts, the
application shall be made to the High Court within the local limits of whose
jurisdiction the Courts in which the suit is brought is situate."

   The ingredient to be satisfied under Section 22 of C.P.C. is that the suit
may be instituted in any one of two or more Courts. In the case on hand, from
the facts stated above, it cannot be said that the Family Court at Chennai has
jurisdiction to try the O.P. filed by the respondent. Under Section 23(3), an
application for transfer is maintainable before a High Court even where the
proposed transferee court is subordinate to another High Court. The contention
raised by the respondent is that only Section 25 of the C.P.C. will apply and
that the remedy of the petitioner, if any, is to move the Honourable Supreme
Court. I do not agree with this contention at all. If the petition for divorce
could be filed either before the Family Court, Chennai or before the Family
Court, Ernakulam, definitely this Court, exercising the jurisdiction under
Section 23(3) C.P.C., could transfer the case from the Family Court, Ernakulam
to the Family Court at Chennai. In the decision, reported in 1958 KLT 1118 -
Sadayandi Nadar v. Venugopala Chetty this Court held that the High Court has
jurisdiction to transfer a suit pending in a court subordinate to it, to a court
subordinate to another High Court. In that decision, this Court followed the
decisions reported in AIR 1940 Nagpur 145 and AIR 1920 Patna 138. Earlier, a
contrary view was taken by the Nagpur High Court in the decision reported in AIR
1916 Nagpur 31 and it was overruled in the decision in AIR 1940 Nagpur 145. In
an unreported case, in C.M.C. 10 of 1996, this Court held that Section 23(3)
C.P.C. can be applied to transfer a case pending in a court subordinate to this
Court, to a court subordinate to the High Court of Madras. It was held thus:

     "But a reading of Section 23 will show that it has no independent
existence. An application under Section 23 must therefore, fulfil the conditions
mentioned in Section 22 of the C.P.C. Sections 22 and 23 are complimentary to
each other. Section 22 confer a person to apply for transfer subject to
conditions mentioned in Section 22 and Section 23 specifies the Court to which
the application should be made."

   5. The order in C.M.C. 10 of 1996 was confirmed in appeal, M.F.A. 1330/1996.

   Therefore, I hold that if ingredients of Section 22 are satisfied, this Court
can definitely entertain an application for transfer of the case from the Family
Court, Ernakulam to the Family Court, Chennai. But from the facts, as available
now, it cannot be said that the Family Court, Chennai has jurisdiction to try
the case. Section 3(3) of the Divorce Act, 1869 defines the District Court as
follows:

     " "District Court" means, in the case of any petition under this Act, the
court of the District Judge within the local limits of whose ordinary
jurisdiction, (or of whose jurisdiction under this Act the marriage was
solemnized or), the husband and wife, reside or last resided together."

   Going by Section 3(3), a petition before the District Court can be maintained
only if any of the following three conditions are satisfied:

     a) that the marriage was solemnized within the local limits of ordinary
jurisdiction of the District Court or of whose jurisdiction under the Divorce
Act the marriage was solemnized; or

     b) the husband and wife reside within that jurisdiction; or

     c) the husband and wife last resided together within that jurisdiction.

   6. As stated earlier, none of these ingredients are made out from the facts
available as of now. Section 7(1) of the Family Courts Act, 1984 provides that
subject to the other provisions of the Act, a Family Court shall 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. The parties
are governed by the Divorce Act. Therefore a Family Court which could entertain
a petition for divorce under Section 10 of the Divorce Act must satisfy the
requirements of the jurisdictional aspects provided under Section 3(3) of the
Divorce Act. Section 7(1)(b) of the Family Courts Act provides that a Family
Court shall be deemed, for the purpose of exercising such jurisdiction under the
law mentioned in Clause (a), 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. Section 10 of the Family Courts Act provides that subject to the
other provisions of the Act and the Rules, the provisions of the Code of Civil
Procedure shall apply to the suits and proceedings before a Family Court.
Therefore, if the ingredients of Section 23(3) read with Section 22 of C.P.C.
are satisfied, certainly this Court can transfer a petition pending before any
Family Court within the jurisdiction of this Court to any Family Court
subordinate to any other High Court having jurisdiction. But the petitioner has
not established that any other Family court subordinate to any other High Court
has jurisdiction. Therefore, the petitioner cannot be granted the reliefs as
provided under Section 23(3) of the C.P.C. The Transfer Petition fails and the
prayer for the transfer is rejected.

   7. However, taking into account the fact that the petitioner is residing at
Chennai with her mother and child aged only three years, it is only just and
proper, if the Family Court considers a request for examining her on Commission
at Chennai.

   The Transfer Petition is disposed of as above.