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Arunagiri-vs-Mr. Kala @ Lakshmi on 28 March, 2005

Madras High Court Arunagiri-vs-Mr. Kala @ Lakshmi on 28 March, 2005
Author: N Kannadasan
Bench: N Kannadasan

ORDER

N. Kannadasan, J.

1. The above petition is filed seeking transfer of M.C. No. 434 of 2004 pending on the file of the I Additional Family Court, Chennai to the file of Sub Court, Pollachi to be tried along with H.M.O.P. No. 101 of 2000.

2. The petitioner married the respondent in the year 1986. Due to strained relationship, they were separated in the year 1999, resulting in the petitioner has filed H.M.O.P. No. 101 of 2000 seeking dissolution of marriage and the same is pending on the file of Sub Court, Pollchi. Subsequently, at the instance of the respondent, a case was registered as against the petitioner for the alleged offence under Sections 498A I.P.C. and other provisions of I.P.C. and Section 4 of Dowry Prohibition Act and the same is pending as C.C. No. 319 of 2001 on the file of Judicial Magistrate No. I, Pollachi.

3. According to the petitioner, even though the respondent is having a permanent residential address at Pollachi and she is facing several other cases under Section 138 of Negotiable Instruments Act, with a view to harass the petitioner herein, she has filed a petition for maintenance in M.C. No. 434 of 2004 on the file of I Additional Family Court, Chennai and hence, seeks transfer of the case to try along with H.M.O.P. No. 101 of 2000.

4. Per contra, learned Senior Counsel appearing for the respondent would contend that the case in M.C. No. 434 of 2004 cannot be tried along with H.M.O.P. No. 101 of 2000, since the maintenance case is filed under the provisions of Criminal Procedure Code and there is a specific bar under Section 10 of the Family Courts Act, 1984 to try the case for maintenance filed under the provisions of Criminal Procedure Code either by the Family Court or by the Court having jurisdiction of the Family Court. Learned Senior Counsel would also contend that the respondent has already shifted her residence to Chennai and there is no impediment to file the present application for maintenance at the Court situated at Chennai and accordingly opposes the relief.

5. I have carefully considered the rival submissions made by both parties.

6. Admittedly, the petition filed by the petitioner for dissolution of marriage which is pending on the file of Sub Court, Pollachi in H.M.O.P. No. 101 of 2000 was at the earliest point of time, viz. in the year 2000. It is not in dispute that the petitioner is also facing a criminal case at the instance of the complaint given by the respondent for the alleged offence under Section 498A I.P.C. and other offences in C.C. No. 319 of 2001 on the file of Judicial Magistrate No. I, Pollachi. The petitioner has also filed another suit in O.S. No. 273 of 2004, which is also pending on the file of District Munsif Court, Pollachi. The respondent is also one of the party in the cases viz. C.C. No. 56 of 2005 pending on he file Judicial Magistrate, Pollachi as well as C.C. No. 80 of 2003 on the file of Judicial Magistrate Pollachi. In the light of the facts and circumstances that all the proceedings were either pending at Pollachi or some of them were disposed of already, no prejudice would be caused if the present case viz. M.C. No. 434 of 2004, which is pending on the file of I Additional Family Court is transferred and tried along with the petition for dissolution of marriage.

7. Even though learned Senior Counsel has raised the contention that the proceedings initiated under Criminal Procedure Code cannot be transferred and tried along with the petition for maintenance filed under Section 125 of Criminal Procedure Code by this Court while sitting under Section 24 C.P.C., the Apex Court in the case of Ram Chandra v. State of U.P. has held that the term “proceeding” as referred to under Section 24 C.P.C. is not confined to the Civil Procedure alone and as such, I am of the opinion that this Court has got jurisdiction to order the transfer if the circumstance warrants.

8. Learned counsel for the respondent contended that Section 10(1) of The Family Courts Act, 1984 is a bar in respect of any proceedings under the Code of Criminal Procedure and as such, the maintenance case which is filed under Section 125 Cr.P.C., cannot be transferred. In this connection, it is useful to refer to Section 10(1) of the said Act, which reads as follows:-

“10. Procedure generally–(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (V of 1908) and of any other law for the time being in force shall apply to the suits and proceeding (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before a Family Court shall be deemed to be a Civil Court and shall have all the powers of such court.”

The above section is incorporated to regulate the proceedings pending on the file of the Family Court. To regulate the abovesaid proceedings pending in the Family Court, while applying the provisions of Code of Civil Procedure, the Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. The said provision is incorporated only in the manner stated as above and the same cannot be construed as a bar to transfer a case filed seeking maintenance under Section 125 of the Criminal Procedure Code along with the connected petition seeking dissolution of marriage.

9. For the reasons stated above, M.C. No. 434 of 2004 pending on the file of I Additional Family Court, Chennai is ordered to be transferred to Sub Court, Pollachi to try along with H.M.O.P. No. 101 of 2000 pending on the file of Sub Court, Pollachi. It is made clear that the Sub Court, Pollachi shall dispose of both the matters on or before 31st August, 2005. Both parties shall extend necessary cooperation for the disposal of the above matters. If any of the parties does not cooperate, it is open to the learned Sub Judge, Pollachi to proceed with the matter in accordance with law.

10. The transfer C.M.P. is allowed with the above directions. Consequently, connected C.M.P. is closed.

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