G.R. Luthra, J.
(1) Mrs. Kaushalya Singha, petitioner was married to Lt. Col. Anil Kumar Singha (respondent) according to Christian rites. The marriage took place on 18th September, 1953 at Bombay. No children were born out of the said wedlock.
(2) Petitioner, brought a petition under Section 22 read with Section 23 of the Indian Divorce Act (hereinafter referred to as an 'Act') for a decree for judicial separation on the ground of cruelty, desertion, adultery and bigamy. She also brought an application under Section 36 of the Act for grant of maintenance. Both the applications are contested by the respondent.
(3) On 30th January, 1982, the present application under Section 24 of the Code of Civil Procedure (in short 'Code') was brought by the petitioner for transfer of both the petitions for judicial separation and the one for grant of maintenance to the court of District Judge, Delhi. The reasons given for such prayer for transfer are briefly stated as follows : Section 23 of the Act says that an application for judicial separation can be filed in the District Court or the High Court. Section 45 of the said Act reads as follow :
'SUBJECTto the provisions herein contained all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure'
Section 15 of the Code says that, 'Every suit shall be instituted in the court of the lowest grade competent to try it'. Submission of the petitioner is that the Court of District Judge being court of lowest grade, in view of Section 15 of the Code, the present petition should have been brought in the court of District Judge and it was on account of inadvertence that the same was brought in the High Court.
(4) Aforesaid application was contested by the respondent and I have heard the learned counsel for the parlies.
(5) Contention of the respondent is that, as is apparent from the opening words (subject to the provisions herein contained. . . . ) of Section 45 of the Act, provisions of Code are applicable only if they are not inconsistent with the provisions of the Act, that in the present case. Section 15 of the Code is inconsistent with the provisions of Section 23 of the Act in as much as the latter provisions give an unfettered choice to a petitioner to select any of the District Court or the High Court for filing petition under Section 22 of the Act whereas section 15 of the Code takes away such choice by making it obligatory to bring such proceedings in the court of lowest grade being that of District Court and that Section 24 of the Code is in conflict with Section 8 of the Act because Section 8 of the Act prescribes the mode for transfer of cases by High Court from the court of one District Judge to another District Judge or withdrawing a case from the court of District Judge, whereas Section 24 of the Code gives wider power to the High Court to transfer any case even from itself to the court of District Judge. Reliance of the respondent is on a judgment of Calcutta High Court in Surendra Nath Dutt v. Malati and another : AIR1942Cal546 in which the following proposition of law was laid down :__
'SECTION 8 contains an express provision regulating the transfer of a suit or proceeding under the Act from the Court of one District Judge to the Court of another District Judge and hence byreason of S. 45 of the Act, S. 24 Civil P.C., can have no application to suits or proceedings under the Act.'
Reliance of the learned counsel further is on a judgment of High Court of Punjab & Haryana reported as 1978 (1) M L J 84 in which the aforesaid Calcutta authority was followed in a case under Hindu Marriage Act. Learned counsel further pointed out to a judgment of Hon'ble Mr. Justice T. P. S. Chawla of this Court in Mrs. Prasdile Khosla v. Rajnesh Kumar Khosla reported as 1979 M L R 226 which indicated that Delhi High Court itself decided a case under the Divorce Act in exercise of original jurisdiction. Learned counsel argues that that means that the High Court is also exercising the jurisdiction under the Divorce Act.
(6) (THERE is no doubt that special law on a subject over rides the provision's of general law on that subject if there is inconsistency.) In that way, it can be said that the provisions of a special law like Divorce Act relating to divorce or judicial separation of Christians are to be given effect to as against the inconsistent provisions of general law like the Code. Question, thereforee, arises if there is inconsistency as pointed out by learned counsel for the respondent. (There is inconsistency when two provisions cannot co-exist or are mutually destructive. But if they are not mutually destructive of each other and they can co-exist, both be given effect to). In the present case provisions of Section 23 of the Act to the effect that a petition for judicial separation can be made either to District Court or to High Court are not destructive to Section 15 of the Code which lays down that a suit or proceeding should be filed in the court of the lowest grade competent to try it. Both can have play together and court of lowest grade can be chosen out of two courts i.e. District Court and High Court. Section 15 of the Code will be destructive to Section 23 of the Divorce Act in case it is held that a petition for judicial separation can be entertained by a court of Sub Judge which is a court of still lower grade. thereforee, the net result is that it is a court of District Judge who is competent to try petitions lor judicial separation. The aforesaid view finds support from the judgment of Madras High Court in Y. Jeramiah Yesupatham v. Mrs. Desnamma Yesupatham, K. L. R. 419(3). In that case the following observations were made :
'THEquestion is as to whether in a matter where there is a concurrent jurisdiction in this court and the District Court the petitioner is entitled to have the matter decided by this Court. With reference to this matter, there is nothing in the Indian Divorce Act, which provides anything contrary to S. 15, C.. C. Hence, the Civil Procedure Code would apply by virtue of S. 45 of the Indian Divorce Act. In the absence of any inconsistency between the Indian Divorce Act and the C. P. C., the provisions of the Code are directly attracted under S. 45 of the Indian Divorce Act. S. 15 f the Civil Procedure Code ., would thus have application as to require the matter to be presented before the court of the lowest grade competent to try. The same view has been taken by Sadasivam, J., in O.M.S. No. 13 of 1963.'
(7) In Felix Edward Geyer v. M. M. Geyer and another A.I.R. (26) 1949 Lah 34, it was held that there was no inconsistency between provisions of Section 24 of the Code and Section 8 of the Divorce Act and that thereforee, a petition pending under the provisions of the Divorce Act could be transferred to the court of the District Judge. In fact, there is no inconsistency in this respect also. Section 8 of the Divorce Act is narrower in its operation and does not deal with the situation when a High Court wants to transfer a petition under the Divorce Act to the court of the District Judge. That situation is provided for in Section 24 of the Code. thereforee, the provisions of Section 24 of the Code can co-exist and are not destructive of the provisions of Section 8 of the Divorce Act.
(8) There is no doubt that Hon'ble Mr. Justice T.P.S. Chawla decided a petition under the Divorce Act. But that judgment indicates that there was no pointing out at all that it should be court of the District Judge who should entertain and decide such petitions. thereforee, that matter was never decided and cannot be taken as precedent for the view that such a petition can be filed in the District Court or in the High Court at the option of the petitioner.
(9) Having found that the petition should have been filed in the court of the District Judge, question arises as to whether the petition should be returned for presentation to the court of the competent jurisdiction or same should be transferred to the court of District Judge, Delhi. Madras High Court in 1975 H.L.R 415 (Supra) directed in that particular case that petition should be returned for presentation to the court of the Distric Judge. Lahore High Court in Air 1949 Lah 34 (supra) expressed the view that the transfer of a petition to the court of the District Judge was valid. In my opinion the view expressed by the Lahore High Court should be followed especially in the present case because the law was not settled and thereforee, it could be on account of bona fide mistake that the petition was brought by the petitioner in the High Court.
(10) Under these circumstances, I acting under Section 24 of the Code, transfer the present petition to the court of the District Judge, Delhi. The parties should appear in the said court on March 29, 1982. is No. 352 of 1982 stands disposed off accordingly.