1981 (3) TMI 260 - SC - Indian Laws

Court orders transfer of divorce suit to another district for joint trial with maintenance suit

The court rejected the husband's preliminary objection regarding the applicability of Section 25 of the Code of Civil Procedure to proceedings under the ... Applicability of the Code of Civil Procedure to proceedings under the Hindu Marriage Act - Power of transfer under S. 25 of the Code of Civil Procedure - Scope of S. 21 and S. 21A of the Hindu Marriage Act regarding transfer and consolidation of petitions - Exclusion of jurisdiction by specific statutory provision - Concurrent trial by transfer for ends of justiceApplicability of the Code of Civil Procedure to proceedings under the Hindu Marriage Act - Power of transfer under S. 25 of the Code of Civil Procedure - Scope of S. 21 and S. 21A of the Hindu Marriage Act regarding transfer and consolidation of petitions - Exclusion of jurisdiction by specific statutory provision - Whether the jurisdiction and transfer power under S. 25 of the Code of Civil Procedure are excluded or curtailed by S. 21 and S. 21A of the Hindu Marriage Act, 1955, in respect of proceedings under that Act - HELD THAT: - The Court held that S. 21 of the Hindu Marriage Act does not, by implication, exclude provisions of the Code of Civil Procedure merely because they are substantive in character; S. 21 makes the Code applicable 'as far as may be,' excluding only provisions inconsistent with the Act. The contention that S. 25 C.P.C. is ousted because it is substantive was rejected: if jurisdiction conferred on a court is to be ousted it must be done in clear and unequivocal terms, which S. 21 does not do. Section 21A, read with its marginal note, deals with transfer and joint disposal 'in certain cases' and is not exhaustive; sub-s. (3) of S. 21A refers to the transfer powers under the Code as it then stood (old ss. 24 and 25) and cannot be read as excluding the wider, plenary transfer power conferred on the Supreme Court by the substituted S. 25 (effective from Feb. 1, 1977). Consequently S. 21A does not displace the present S. 25 C.P.C., nor restrict the Court's power to transfer proceedings under the Hindu Marriage Act when it is expedient for the ends of justice. The contrary construction adopted by some High Court Benches was held to produce anomalous results and was therefore not accepted.S. 25 of the Code of Civil Procedure applies to proceedings under the Hindu Marriage Act and is not excluded or curtailed by S. 21 or S. 21A of the Hindu Marriage Act.Concurrent trial by transfer for ends of justice - Power of transfer under S. 25 of the Code of Civil Procedure - Transfer of the divorce petition pending in Udaipur to Eluru and transfer of the wife's maintenance petition for joint disposal - HELD THAT: - On the merits the Court was satisfied that it was expedient in the interests of justice to have the two proceedings tried together to avoid conflicting decisions and for convenience of joint disposal. The wife agreed to transfer her maintenance suit to the District Court at Eluru, Andhra Pradesh, so that both matters could be heard by the same court. Exercising its wide powers under S. 25 C.P.C., the Supreme Court directed transfer of the husband's divorce suit from the District Court, Udaipur (Rajasthan) to the District Court, Eluru (A.P.), and ordered that the wife's maintenance petition stand transferred to the same court for joint hearing.Divorce Case No. 28 of 1980 pending at Udaipur is transferred to the District Court, Eluru (A.P.), and the wife's maintenance petition shall also stand transferred to that court for joint disposal; preliminary objection overruled and no order as to costs.Final Conclusion: The Supreme Court rejected the preliminary objection that S. 21 and S. 21A of the Hindu Marriage Act exclude the operation of S. 25 C.P.C., held that the substituted S. 25 confers wide transfer powers which apply to proceedings under the Hindu Marriage Act, and ordered transfer of the divorce suit from Udaipur to Eluru with the wife's maintenance suit to be transferred for joint trial. 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, 1955The 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 SuitThe 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.