1981 (3) TMI 260 - SC - Indian Laws

Summary

Issues Involved:
1. Applicability of Section 25 of the Code of Civil Procedure (C.P.C.) to proceedings under the Hindu Marriage Act, 1955.
2. Transfer of the husband's divorce suit from Udaipur District Court to the District Court at Eluru.

Summary:

Issue 1: Applicability of Section 25 C.P.C. to Proceedings under the Hindu Marriage Act, 1955
The respondent (husband) raised a preliminary objection that s. 25 of the C.P.C. is not applicable to proceedings under the Hindu Marriage Act, 1955, citing s. 21 and 21A of the Act. He argued that s. 25 C.P.C. deals with substantive law, not procedural law, and thus is excluded by s. 21 of the Hindu Marriage Act, which applies only procedural provisions of the C.P.C. Additionally, he contended that s. 21A (3) of the Hindu Marriage Act specifically excludes ss. 24 and 25 C.P.C. from being applied to proceedings under the Act.

The Court rejected this preliminary objection, stating that s. 21 of the Hindu Marriage Act does not distinguish between procedural and substantive provisions of the C.P.C. and that the phrase "as far as may be" is intended to exclude only provisions inconsistent with the Act. The Court also clarified that s. 21A of the Hindu Marriage Act, which deals with the power to transfer petitions and direct their joint or consolidated trial "in certain cases," is not exhaustive and does not exclude the power conferred by the present s. 25 C.P.C., which provides wide and plenary power to transfer any suit, appeal, or other proceedings across states.

Issue 2: Transfer of the Husband's Divorce Suit
The petitioner (wife) sought to transfer the husband's divorce suit from Udaipur District Court to the District Court at Eluru, where her maintenance suit was pending. The Court found it expedient for the ends of justice to transfer the husband's suit to Eluru, allowing both proceedings to be tried together. The Court noted that the wife was agreeable to have her maintenance suit transferred to the District Court at Eluru.

The Court overruled the preliminary objection and ordered the transfer of Divorce Case No. 28 of 1980 from the District Court Udaipur (Rajasthan) to the District Court Eluru (A.P.), where the wife's petition for maintenance would also be transferred. No order as to costs was made.

Separate Judgment by Amarendra Nath Sen, J.
Justice Amarendra Nath Sen agreed with the order but made additional observations regarding the preliminary objection. He emphasized that s. 25 of the C.P.C., which confers wide jurisdiction and powers on the Supreme Court to transfer any suit, appeal, or proceeding across states, is not excluded by s. 21 and 21A of the Hindu Marriage Act. He clarified that s. 21 of the Hindu Marriage Act does not deal with jurisdiction and that s. 21A pertains to specific types of petitions and does not affect the Supreme Court's power under s. 25 C.P.C. to transfer cases for the ends of justice.