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T. Ramadevi Vs. T.V. Subrahmanyam - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberTr. C.M.P. No. 18415 of 1980
Judge
Reported inAIR1982AP10
ActsHindu Marriage Act, 1955 - Sections 21A; Code of Civil Procedure (CPC), 1908 - Sections 24
AppellantT. Ramadevi
RespondentT.V. Subrahmanyam
Appellant AdvocateR.V. Subba Rao and ;R. Prasad, Advs.
Respondent AdvocateS. Dasaratharama Reddy and ;S.R. Ashok, Advs.
Excerpt:
.....employment in brazil and is now staying in that country working there in a well-paid job. all seemed to be well. she also says that she would not be in a position to attend effectively to the trial at cuddapah as it involves giving up, though temporarily, her duty to look after her one year old baby at kurnool. undoubtedly these minimal requirements are amply satisfied in this case. 21a of the hindu marriage act is clearly to prevent the catastrophic possibility of two different courts passing conflicting judgments and differing decrees, one granting divorce and another denying it. the basic assumption of the respondent's argument is clearly incorrect. in other words, to a case like the present one where the husband alone has sued for divorce, s. considering the circumstances of..........wife under s. 24 of the civil p. c. to transfer her husband's divorce petition under s. 13 of the hindu marriage act from the court of the additional district judge, cuddapah to the court of the district judge, kurnool. the petitioner-wife and the respondent-husband are both well educated. the petitioner is a graduate in medicine and the husband is a ph. d., of i. i. t. madras. they were married in the year 1978 at cuddapah and have a male child which is now nearly one year old. even by the time of the marriage, the petitioner-wife is in government service working at kurnool and subsequent to the marriage the husband-respondent obtained employment in brazil and is now staying in that country working there in a well-paid job. all seemed to be well. but fate seems to be cruel. while still.....
Judgment:
ORDER

1. This application is filed by a Hindu wife under S. 24 of the Civil P. C. to transfer her husband's divorce petition under S. 13 of the Hindu Marriage Act from the Court of the Additional District Judge, Cuddapah to the Court of the District Judge, Kurnool. The petitioner-wife and the respondent-husband are both well educated. The petitioner is a Graduate in Medicine and the husband is a Ph. D., of I. I. T. Madras. They were married in the year 1978 at Cuddapah and have a male child which is now nearly one year old. Even by the time of the marriage, the petitioner-wife is in Government service working at Kurnool and subsequent to the marriage the husband-respondent obtained employment in Brazil and is now staying in that country working there in a well-paid job. All seemed to be well. But fate seems to be cruel. While still working and staying at Brazil, the husband filed O.P. 54 of 1980 in the Cuddapah District Court seeking divorce from his wife. The wife seeks in the present application transfer of that O. P. 54/80 to the District Curt, Kurnool. I omit to mention the grounds of that divorce application as they are not relevant for the purpose of this application.

2. Now the wife alleges in this transfer application that she cannot have a fair trial at Cuddapah where her husband's brother, a practising Advocate and according to her, mainly responsible for the misunderstandings between the wife and the husband, lives and wields lot of local influence. She also alleges that she is afraid of danger to her life at Cuddapah. She also says that she would not be in a position to attend effectively to the trial at Cuddapah as it involves giving up, though temporarily, her duty to look after her one year old baby at Kurnool. She also argues that by transferring the husband's application for divorce, for trial to Kurnool the husband would not be put to any inconvenience or prejudice.

3. These grounds are countered by the husband. It is denied that the husband's brother could have anything to do with the conduct of a fair trial at Cuddapah. It is said for the husband that the obligation of the wife to nurse the one year old child would not, in any way, seriously be interfered with by the trial taking place at Cuddapah. It is denied that there is any danger to the petitioner's life at Cuddapah. Above all it is argued that this transfer application is not maintainable as S. 24 of the Civil P. C., under which this application for transfer is filed, has no application to a divorce application filed under S. 13 of the Hindu Marriage Act, 1955.

4. I first consider the question whether the power of this Court under S. 24 of the Civil P. C. to transfer a suit or an appeal or other proceeding applies to an application for divorce filed under S. 13 of the Hindu Marriage Act. Applications under the Hindu Marriage Act are no doubt governed by the provisions of the Civil P. C. The language of S. 24 of the Civil P. C. is very wide and general and prima facie takes in a divorce application. S. 24 of the Civil P. C. in relevant parts may be reproduced thus :-

'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 - may at any stage - withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. All that is required for transferring a matter under S. 24 of C. P. C. is that that matter to be transferred must be a suit or appeal or other proceeding and pending before a subordinate Court and the Court to which such transfer is sought should also be subordinate and competent to try that matter. Undoubtedly these minimal requirements are amply satisfied in this case. The O. P. filed by the husband under S. 13 of the Hindu Marriage Act in the Court of the District Judge, Cuddapah seeking divorce from his wife can certainly be called a proceeding if not a suit. It is pending before a Court subordinate to this Court. The District Judge's Court, Kurnool, to which the transfer of the above O. P. is sought by means of the present application is not only subordinate to this Court but is also competent to try such an application. There is, therefore, nothing in the wide language of S. 24 of C. P. C. that can be construed as rendering the present transfer application as incompetent.

5. But the opposing argument of the estranged husband before me is that S. 24 of the C. P. C. would not apply at all to a divorce proceeding instituted under the provisions of the Hindu Marriage Act. According to this argument the matter of transfer of applications under the Hindu Marriage Act from one Court to another is exhaustively and exclusively dealt with by S. 21A of the Hindu Marriage Act and that, therefore, the general provision for transfer contained in S. 24 of C. P. C. must be taken by law to have been excluded by the special provision for transfer contained in S. 21A of the Hindu Marriage Act. S. 21A of the Hindu Marriage Act, in relevant parts, reads thus :-

'Where a petition under this Act has been presented to a District Court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Sec. 10 or for a decree of divorce under S. 13, and another petition under this Act has been presented thereafter y the other party to the marriage praying for a decree for judicial separation under S. 10 or for a decree for divorce under S. 13 on any ground, whether in the same District Court or in a different District Court, in the same State or in a different State, the petition shall be dealt with as specified in sub-sec. (2).

(2) In a case where sub-s. (1) applies :-

(a) if the petitions are presented to the same District Court, both the petitions shall be tried and heard together by the District Court;

(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the District Court in which the earlier petition was presented.

(3) In a case where cl. (B) of sub-section (2) applies, the Court or the government as the case may be, competent under the Civil P. C. 1908 to transfer any suit or proceeding from the District Court in which the later petition has been presented to the District Court in which the earlier petition is pending shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.'

The meaning and purpose of S. 21A of the Hindu Marriage Act is clearly to prevent the catastrophic possibility of two different Courts passing conflicting judgments and differing decrees, one granting divorce and another denying it. In order to avert this danger, s. 21A of the Hindu Marriage Act takes away discretion from the Court and by use of the word 'shall' mandatorily directs the appropriate Court or Government to consolidate for trial the two applications filed separately by the husband and wife seeking divorce or judicial separation by transferring the application filed later in point of time to the Court where a similar first application is filed and pending. The aforesaid S. 21A of the Hindu Marriage Act provides more for the performance of an uniform duty by the Court and almost for an involuntary joint trial without any reference to the will of the parties. Section 21A of the Hindu Marriage Act has nothing to do with the power to be exercised by the Court on the basis of individual cases. S. 21A of the Hindu Marriage Act, proceeding on the basis of above public policy does not, therefore, leave any discretion either to the Court or to the parties in the matter of deciding which application should be transferred to which Court. Legislature has settled all these questions and decided every essential detail. But outside that limited area there can be several situations calling for transfer with or without joint trial. Those situations are still left to be dealt with by S. 24 of the C.P.C. They are still left to be governed by the general provisions of S. 24 of the C. P. C. what is given to the Court to deal with those situations is a discretionary power enabling the high Courts and the District Courts to transfer cases on individual basis. There is wide discretion available to the Courts under S. 24 of C. P. C. The subject matter of these two statutory provisions and the area of their operation and the purposes for which they are intended to be used, cannot, therefore, be said to be the same. The basic assumption of the respondent's argument is clearly incorrect. Further, S. 21A of the Hindu Marriage Act would be inapplicable to a situation where there is only one application for divorce or judicial separation. It is also doubtful whether that section would apply to two applications filed on the same day in two competent Courts. In other words, to a case like the present one where the husband alone has sued for divorce, S. 21A of the Hindu Marriage Act would not apply. S. 21A of the Hindu Marriage Act can, no doubt, be called a special provision as compared with the general provision contained in S. 24 of the C. P. C. But it is difficult to say that S. 21A of the Hindu Marriage Act presents any situation of inconsistency or any position of conflict as compared with S. 24 of the C. P. C. There are several reasons for saying so. The nature of the power contained in S. 24 of C. P. C. is discretionary in character while the power contained in S. 21A of the Hindu Marriage Act is absolute. S. 24 of C. P. C. does not put the Court under a mandatory duty and under an inflexible obligation to transfer nor does it fetter the Court's discretion to transfer whichever suit, appeal or proceeding it feels desirable to be transferred to whichever competent and subordinate Court. S. 24 of C. P. C. is an enabling provision. For its operation, S. 24 C. P. C. mainly depends upon the application of the parties. The power under S. 24 of C. P. C. is not compulsive as the power under S. 21A of the Hindu Marriage Act is. The Court must exercise power under S. 21A of the Hindu Marriage Act. It is grounded on the high public policy of avoiding conflicting decisions. That is why it does not even require an application of the parties to be made for transfer. Above all, outside the situations envisaged by S. 21A, there can be many situations calling for transfer. To hold S. 21A is exhaustive is to create a lacuna in the law. For these reasons I hold that the argument that the special provision contained in S. 21A of the Hindu Marriage Act would oust the general power of the Court contained under s. 24 of the C. P. C. is not at all correct. But the learned counsel for the husband has relied upon a judgment of Chinnappa Reddy, J., reported in Smt. Rama Kanta v. Ashok Kumar, in support of his contention that Section 21A of the Hindu Marriage Act is special provision completely displacing the general power of the Court under S. 24 of C. P. C. In that Punjab case the wife made an application under S. 24 of C. P. C. seeking transfer of her husband's subsequently filed petition for restitution of conjugal rights in the Court of the District Judge, Hoshiarpur, to the Court of the Additinal District Judge, Chandigarh, where her own application for divorce filed earlier was pending. That application was rejected by Chinnappa Reddy, J., although S. 21A of the Hindu Marriage Act in terms has nothing to say about an application filed for restitution of conjugal rights which is under S. 9 of the Hindu Marriage Act. The learned Judge observed that , S. 21A makes special provision for the transfer of certain proceedings under the Hindu Marriage Act. By virtue of S. 21a it is to be taken that this provision excludes the general provisions in the C. P. C, relating to transfer'. The reasoning of the judgment was that if S. 21A is confined to the only situations mentioned therein allowing the other situations to be governed by S. 24 C.P.C. S. 21A would be rendered superfluous and practically meaningless. According to the learned Judge, Sec, 21A of the Hindu Marriage Act must be taken as exhaustive on the subject of transfer. With great respect, I am unable to agree with this reasoning. The differing purposes of the two statutory provisions do not appear to have been fully explored by this judgment. As I have pointed out above, the purpose of S. 24 of C. P. C, is merely to confer on the Court a discretionary power. A Court acting under S. 24 of the C. P. C. may or may not in its judicial discretion transfer a particular subsequent application to be tried along with a particular earlier application. Now S. 21A of the Hindu Marriage Act substitutes a mandatory duty in the place of this discretionary power denying discretion altogether to the Court to a situation to which S. 21A of the Hindu Marriage Act applies. It is for this reason that S. 21A is enacted. By confining S. 21A to that area alone as we must do for the reason of language contained in S. 21A to that area alone as we must do for the reason of language contained in S. 21A that section is rendered neither meaningless nor superfluous. Outside the situation covered by S. 21A of the Hindu Marriage Act, there is therefore no reason to hold that the discretionary power of transfer given to the high Court and the District Court under S. 24 of the C. P. C. is altogether abrogated in the matter of transfer of matrimonial causes under the Hindu Marriage Act. For these reasons, I am, with respect unable to agree with the judgment of the Punjab and Haryana High Court which, in my opinion, did not take note of the differences in design and purpose of the two statutory provisions. S. 24 of C. P. C. is a remedial provision. Such a provision should not be nullified by interpretation except for compelling reasons of language or purposes of the Statute. Neither of them are present here. In Guda Vijayalakshmi, v. Guda Ramachandra Sekhara Sastry, : [1981]3SCR223 a case arising under s. 21A of the Hindu Marriage Act it was held that s. 21A is not an exhaustive provision relating to the transfer of all matrimonial causes arising under the Hindu Marriage Act. In that case, the Supreme Court held relying upon the marginal note that S. 21-A is confined only to those matters mentioned in S. 21-A of the Hindu Marriage Act. I, therefore, hold that the husband's objection to the transfer of his O. P. from Cuddapah to Kurnool on the ground that this Court has no power under S. 24 C.P.C. cannot be upheld.

6. It now remains to be considered whether the wife has made out at least a plausible case for transfer of her husband's petition for divorce now pending before the learned Additional District Judge, Cuddapah to Kurnool District Court. As we have already noted the language of Section 24 of the C.P.C. which is very wide does enable this Court to transfer a suit or appeal or other proceedings pending before one subordinate Court to another subordinate Court, competent to try the same. Beyond that, Section 24 of C.P.C. does not impose any express restrictions on the power of the Court in the matter of transfer . Undoubtedly, the District Court at Kurnool is competent to try the husband's O.P. for divorce. But existence of legal competence can be taken as satisfying a necessary condition for transfer , but not necessarily as constituting a sufficient condition. Normally a litigant must have, subject to the applicable law, the choice of the Court where he should institute the suit and prosecute it. Except where that choice is exercised by him oppressively or unjustly or mala fide in order to turn the legal process into an engine of oppression or where for local reasons fair trial is not possible , this Court should not , acting in the name of the wide language of S. 24 of C.P.C.., upturn that choice of the litigant and nullify his statutory right. It is undoubtedly within the province of the Courts to prevent the abuse of judicial process. But this case is not shown to me to be such a case. This is not a case where the husband has sued the wife as a counter-blast to any proceedings earlier instituted by the wife either at Kurnool or any other place. Heart alone knows the soundness of his reasons for divorce. But that he entertained those reasons genuinely cannot be doubted. It cannot be believed that a fair trial is not possible at Cuddapah. The vague allegation of the petitioner about the so-called influence of the husband's brother at Cuddapah and equally vague allegation of danger to her safety cannot be taken literally. I cannot accept that the brother's influence can deter the effective enforcement of judicial process at Cuddapah. The only other ground mentioned is the petitioner's need to nurse her one year old child. Considering the circumstances of this case and the nature of the trial called for in a case like this, this argument cannot be given much weight. Regrettably the petitioner presented no jurisdictional issues in justification of this transfer application. In the circumstances presented in the petition, I find no legal justification to transfer the husband's O.P. to Kurnool.

7. I, accordingly, dismiss this Transfer C.M.P. There shall be no order as to costs.


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