LAWS(CAL)-1998-4-15

AJOY KR SEN Vs. BHASWATI SEN

Decided On April 07, 1998
AJOY KR.SEN Appellant
V/S
BHASWATI SEN Respondents

JUDGEMENT

(1.) By the impugned order dated August 25, 1995, the learned Judge, 4th Bench, City Civil Court, Calcutta refused the prayer of the plaintiff-petitioner to transfer the pending Matrimonial Suit No. 107 of 1990 to the Family Court since established in the City at Calcutta under the Family Courts Act, 1984 and, hence was an application under Article 227 of the Constitution of India filed before this court.

(2.) The contextual facts are that some time before the establishment of the Family Court in the City of Calcutta under the Family Courts Act, 1984, vide Notification No. 15265 dated 25 August, 1994 issued by the Government of West Bengal, there was a Matrimonial Suit No. 107 of 1990 instituted by the petitioner-husband praying for a decree of divorce under section 13 of the Hindu Marriage Act, 1956 against the respondent-wife filed in the court of Additional District Judge, Burdwan at Asansol. There is no dispute raised to the hard fact that the court of Additional District Judge, Burdwan at Asansol had most certainly jurisdiction to try the suit in accordance with law. To put it in other words, there was no lack of jurisdiction with the court of Additional District judge, Burdwan at Asansol to try and dispose of the suit. There was however, an application under section 24 of the Code of Civil Procedure filed by and at the instance of the Opposite Party-wife, which was numbered as C.O. No. 1882 of 1992 of this court, and was disposed of by this court by the order dated 8.2.92 while allowing the prayer for transfer and directing that the Matrimonial Suit be transferred to the learned Chief Judge, City Civil Court, Calcutta to either hear the suit or transfer the same to some other Judge competent to hear and dispose of the same. The suit was, thereupon, transferred to 4th Bench of the City Civil Court at Calcutta where it was re-numbered as Matrimonial Suit No. 95 of 1993 (as against Matrimonial Suit No. 107 of 1990).

(3.) Subsequently, a Family Court was established in the city of Calcutta as per Notification No. 15265 dated 25 August, 1994 of the Government of West Bengal issued in exercise of the power conferred by sub-section (2) of section 3 of the Family Courts Act, 1984 (66 of 1984). Thereupon, the husband-petitioner moved the court below for transfer of the suit to the Family Court, brought into existence in the City of Calcutta. Whereas, it is true that by the Notification of the State Government, as referred to above, a Family Court for City of Calcutta has since been established with local limits of the jurisdiction in the City of Calcutta, i.e. to say, the area comprised within the local limits for the time being of the ordinary original Civil Jurisdiction of the High Court at Calcutta and, further, in terms of the provision under section 7 and 8 of the Family Courts Act, 1984 every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7, which was pending immediately before the establishment of such Family Courts before any District Court or Sub-ordinate court shall stand transferred to such Family Courts on the date on which it is established.