KAMATCHI Vs. G. P. JAIPRAKASH

JUDGEMENT

(1.) Petitioner is the wife and respondent is the husband. Petitioner filed O.S.No. 53 of 1995 before the Principal Family court, Madras against the respondent for maintenance. It is the case of the petitioner that they were married on 4.12.1992 at Madras and they resided together in the parental house of the petitioner at Said pet, Madras. At the time of marriage respondent was employed at Bombay. Therefore, they lived together at Bombay. Thereafter, respondent obtained another job in Palghat and they shifted their residence to his parental home at Palghat. Petitioner and respondent lived with the parents of the respondent at Palghat. It is the case of the petitioner that petitioner was harassed and finally respondent took her to Madras and visited her parental home. Petitioner was left there at her parental home. Various lawyer notices were sent. According to the petitioner, she being black and poor respondent did not like her. Petitioner moved the Family Court, Madras by filing O.P.No. 991 of 1994 on 7.9.1994 under Sec. 9 of the Hindu Marriage Act seeking restitution of conjugal rights. The case was admitted. Counter statement was filed. Thereafter, Court called the parties for conciliation. It is the case of the petitioner that endorsement was made in the petition by both parties were it is stated by the petitioner that she shall go with her husband and live as his wife in his house without any objection. It was written in the presence of the petitioner's father. Respondent also has endorsed that he shall take back his wife and live as one family and they will live as husband and wife. This was witnessed by his father and father-in-law. Certified copy is produced as Annexure A3 and its translation is produced as Annexure A3(a). Court also recorded the same. Thereafter, in view of the endorsement the original petition was not pressed and the original petition was dismissed as not pressed.

(2.) It is the case of the petitioner that immediately after leaving the Court premises she was told that he will come for taking her but that did not occur. Respondent never took back her. Instead he continued M.O.P.No. 96 of 1994 before the Sub Court, Palghat for divorce under Sec. 13(1)(a) of the Hindu Marriage Act. The above petition was filed on 4.7.1994. Therefore, it is alleged that respondent had fraudulently continued divorce proceedings after making endorsement in the Family Court, Madras that he was ready and willing to take back the petitioner. There were several postings. She filed counter statement. She being a lady cannot come to Palghat without an assistance. Both persons have to travel from Madras to Palghat and stay in lodge, if is very difficult and is very expensive. She being poor, she is unable to bear the expenses. So, she filed pendente life alimony petition, I.A.No. 82 of 1996 on 4.10.1995 before the Sub Court, Palghat where divorce petition was pending. Since no pendente lite alimony was paid and the case was being dragged down in the Sub-Court, Palghat she filed an application for maintenance before the Principal Family Court, Madras as O.S.No. 53 of 1995 on 21.12.1995. Now it is her case that both cases should be tried together at Madras and case at Palghat should be transferred considering the fact that she is a lady without any means.

(3.) Her prayer for transfer is objected to by the respondent on the ground that the petition admittedly will not lie under Sec. 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as C. P. C.). It can only be filed under Sec. 22. Sec. 23 only speaks about the Court where such petitions should be filed. Petition under Sec. 22 will not lie because petitioner in the counter statement filed in M.O.P.No. 96 of 1995 was specifically contended that Palghat Court has no jurisdiction. If the petitioner takes such a plea that Palghat Court has no jurisdiction she cannot file a petition to transfer the case from Palghat Court as it is a sine quo non for filing a petition under Sec. 22 that both courts where the cases are pending have jurisdiction to try the suit. When it is once contended that Palghat Court has no jurisdiction she cannot file a petition to transfer the case from Palghat Court and Sec. 22 is not applicable. It is also contended by the respondent that there is no bona fide because petitioner appeared before the Palghat Court, filed application for pendente lite alimony, appeared for conciliation and only after one-half year of fighting this petition is filed. Because of the delay it is contended that the transfer petition is not maintainable. She should have requested for transfer at the earliest opportunity. Respondent also pointed out the provisions of Sec. 21A of the Hindu Marriage Act and argued that under the Hindu Marriage Act cases can be transferred only to a place where the earliest suit was instituted. Here the suit for maintenance was instituted only on 21.12.1995. Petition for divorce was filed in 1994. The earlier petition for restitution of conjugal rights was dismissed as not pressed and no appeal or review petition is pending. Therefore, petition to transfer an earlier instituted suit cannot be entertained. Therefore, on technical aspects alone this petition should be dismissed. It is also pointed out that in the CMC it is mentioned that petition is filed under Sec. 23(3) read with Sec. 24 of the Code of Civil Procedure. Sec. 24 is not at all applicable as Sec. 24 can be applied only when both Courts are subordinate to the jurisdiction of this Court and that is a general power of transfer and withdrawal by the superior Court. Since this Court has no jurisdiction over Family Court, Madras, Sec. 24 is not at all applicable.