High Court empowered to transfer matrimonial proceedings from one subordinate court to another within its jurisdiction

Tripura High Court: While deciding a reference arising from a batch of transfer petitions, the Court held that the High Court in exercise of power under Section 24 of the Civil Procedure Code  has the power to transfer matrimonial proceedings from one Family Court to another Family Court or Family Court to District Court or District Court to Family Court and similarly, the High Court has also the power to transfer a proceedings under Chapter IX of the Criminal Procedure Code from the Family Court to the Magisterial Court and from Magisterial Court to Family Court and vice versa.
The issues for consideration before the Division Bench were:
(1) Whether petitions can be transferred from the Court of the District Judge to the Family Court in another District?
(2) Whether the proceedings pending before the Family Court in one District can be transferred to a District Judge in another District where there is no Family Court?

The Court observed that clearly the proceeding before the Family Court shall be dealt with, as per the procedure prescribed in the Act itself. The procedural law  prescribed in CPC which is not in conflict and/or inconsistent with the provisions of the Family Courts Act and Rules framed thereunder shall apply. Admittedly, in the scheme of the Family Courts Act, there is no provision of transfer of a proceeding from one Family Court to another Family Court or from a Family Court to a District Court and from a District Court to Family Court. Since there is no such provision prescribed in the Family Courts Act, the general provision prescribed under Section 24 of the Code of Civil Procedure in respect of all civil proceedings, shall apply which authorizes the High Court to transfer any suit or proceeding from one Civil Court to another Civil Court under its jurisdiction.

Observing that the High Court  in exercise of power under Section 24 CPC and Section 407 CrPC could transfer cases, the Court held that, “it cannot be said that once a proceeding from Family Court to a District Court is transferred, the parties will be deprived of the special provisions of the Family Courts Act. Be that as it may, the Family Courts Act has not as a whole excluded the application of CPC or CrPC. The provisions of the procedural law prescribed in CPC, CrPC or in the Evidence Act which is not in conflict and/or inconsistent with the provisions of the Family Courts Act shall apply in respect of proceedings to which the Family Court exercises jurisdiction. Once, the Family Court is also a court subordinate to the High Court, the High Court’s power to transfer a proceeding from the Family Court to any other District Court or from the District Court to the Family Court cannot be said to have excluded or restricted. The High Court in exercise of power under Section 24 CPC, in our considered opinion has the power to transfer matrimonial proceedings from Family Court to Family Court or Family Court to District Court or District Court to Family Court and similarly, the High Court has also the power to transfer a proceedings under Chapter IX of the CrPC from the Family Court to the Magisterial Court and from Magisterial Court to Family Court and vice versa.” [Dipika Sharma (Chakraborty) v. Sudip Sharma2016 SCC OnLine Tri 505 , decided on September 16, 2016]

 

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