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TMI Blog1981 (3) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for that purpose the wife is agreeable to have her maintenance suit transferred to the District High Court at Eluru (A.P.) However, counsel for the respondent (husband) has raised before us a preliminary objection that s. 25 of the C.P.C. under which the transfer petition has been made is not applicable to proceedings under the Hindu Marriage Act, 1955 and as such this Court has no power to transfer the husband's suit from Udaipur District Court to the District Court at Eluru. He urged that s. 25 of C.P.C. gets excluded by reason of the provisions of s. 21 and 21A of the Hindu Marriage Act 1955. According to him s. 25 C.P.C. deals with the substantive law and not procedural law and since s. 21 of the Hindu Marriage Act makes applicable to all the proceedings under the Act only such provisions of C.P.C. as relate to the regulation of proceedings i.e. such provisions which deal with procedural matters only, s. 25 C.P.C. is not applicable. He also urged that s. 21 A (3) of the Hindu Marriage Act also makes the above position clear beyond doubt by specifically excluding ss. 24 and 25 C.P.C. from being applied to the proceedings under the Hindu Marriage Act. A large number of aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21A on which strong reliance was placed runs thus: 21A (3). In a case where clause (b) of sub- section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908) to transfer any suit for 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. This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, old s. 24 and 25 of C.P.C. It does not deal with the present s. 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (s. 11 of the Amending Act 104 of 1976). By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in one State to another Civil Court in any other State throughout the count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers under ss. 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading s. 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided. In this view of the matter, the preliminary objection is overruled. Divorce case No. 28 of 1980 pending in the District Court Udaipur (Rajasthan) is transferred to the District Court Eluru (A.P.), to which Court the wife's petition for maintenance shall also stand transferred. No order as to costs. AMRENDRA NATH SEN, J. I agree with the order proposed by my learned brother. I, however, propose to make certain observations with regard to the preliminary objection raised as to the jurisdiction of this Court to entertain this application. The preliminary objection raised is that the jurisdiction and power conferred on this Court under S. 25 of the Code of Civil Procedure are excluded by the provisions contained in S. 21 and S. 21A of the Hindu Marriage Act; and as S. 25 of the Civil Procedure Code is not attracted, this Court does not have jurisdiction to entertain this application for transfer. S. 25 of the Code of Civil Procedure reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case. A plain reading of S. 25 of the Code clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit, appeal or any other proceeding from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice. I shall now set out the relevant provisions of the Hindu Marriage Act. S. 21 of the Hindu Marriage Act is in the following terms:- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be by the Code of Civil Procedure, 1908. Section 21A which was introduced in the Act by the Amending Act, (68 of 1976) provided as follows:- (1) where- (a) 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 s. 10 or for a decree of divorce under section 13, and (b) another petition under this Act has been presented t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Marriage Act in a Civil Court is necessarily a suit or proceeding and must on a plain reading of S. 25(1) of the Code of Civil Procedure be held to come under S. 25(1) of the Code, as the said section speaks of any suit, appeal or other proceeding. This Court must necessarily enjoy the power and jurisdiction under the said provisions of transferring such a suit or proceeding for the ends of justice, unless the power and jurisdiction of this Court are specifically taken away by any statute. If the jurisdiction clearly conferred on any Court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms. S.21 of the Hindu Marriage Act does not deal with the question of jurisdiction of any Court. As no procedure with regard to the proceedings under the Hindu Marriage Act has been laid down in the said Act, S. 21 of the Act only provides that 'all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure.' S. 21 of the Hindu Marriage Act cannot be construed to exclude the jurisdiction conferred on this Court under S. 25 of the Code of Civil Procedure. It does not become necessary in the instant case to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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