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Guda Vijayalakshmi Versus Guda Ramchandra Sekhara Sastry

1981 (3) TMI 260 - SUPREME COURT OF INDIA

Transfer Petition No. 36 of 1980. - Dated:- 13-3-1981 - Tulzapurkar, V.D. Sen, Amarendra Nath, JJ. G.S. Rama Rao for the Petitioner. B.D. Sharma for the Respondent. JUDGMENT: V.D. Tulzapurkar,. On September 26, 1979, the petitioner (wife) filed a suit in forma pauperis seeking maintenance from the respondent (her husband) in the Court of Subordinate Judge, Eluru (Andhra Pradesh) being O. P. No. 72 of 1979. On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Ca .....

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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 exclude .....

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bove 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 authorities were referred to by counsel to substantiate his contention and general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta v. Priyanath Mehta was pressed into service as having a direct bearing on the point. In our view, on proper construction of the relev .....

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ode of Civil Procedure, 1908". In terms s. 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the chara .....

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ta, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (See: Canada and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd. So far as s. 21A of the Hindu Marriage Act is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or co .....

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all 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 o .....

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ficult to accept the contention that s, 21A of Hindu Marriage Act excludes the power of transfer conferred upon this Court by the present s. 25 of C.P.C. in relation to proceedings under that Act. Coming to the decision rendered by the Nagpur Bench of the Bombay High Court in Priyavari Mehta's case (supra) it needs to be pointed out that the aforesaid aspects of s. 21A of the Hindu Marriage Act and the present s. 25 of the C.P.C. were not considered by the Nagpur Bench at all. Moreover, the .....

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. 21A, therefore, in my opinion, is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under s. 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section." Such a view, in our opinion, is not correct. As stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof s. 21A cannot be regarded as ex .....

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ial separation against her husband on ground of cruelty under s. 10 of the Act in order to avoid conflicting decisions being rendered by two different Courts. In such a situation resort will have to be had to 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 ov .....

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ry 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 follows:- "(1) On the application of a party, and after notice to the parties, and after hearing s .....

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s transferred shall, subject to any special directions in the order of transfer, either re-try it or proceed from the stage at which it was transferred to it. (4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of th .....

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s it stood before its amendment by the substitution of the present section. The earlier section 25 was in the following terms:- "(1) Where any part to a suit, appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the State Government, which may, by notification in the Official Gazette, transfer such suit, appeal or proceedin .....

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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 .....

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y the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State; the petition shall be dealt with as specified in sub- section(2) (2) in a case where sub-section (1) applies; (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that .....

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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." The learned counsel for the respondent argues that in view of the provisions contained in S. 21, only the provisions contained in the Code of Civil Procedure relating to procedure which will regulate the proceedings instituted under .....

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nted out that an analysis of the section makes it abundantly clear that for the ends of justice, wide power and jurisdiction have been conferred on this Court in the matter of transfer of any suit, appeal or proceeding from any High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. A suit or a proceeding for divorce under the Hindu 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 o .....

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r 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 Co .....

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