THE HON'BLE SRI JUSTICE N. RAVI SHANKAR TRANSFER CRIMINAL PETITION No.262 of 2010 AND TRANSFER CRIMINAL PETITION No.173 of 2011 ORDER: These two transfer petitions having regard to the controversy between the parties can be disposed of by this common order. 2. The petitioner Sri Kambham Thulasi Prasad in Tr.Crl.P.No.262 of 2010 is the husband of the first respondent Smt. Ambati Laxmi in the said petition. The latter filed a maintenance case M.C.No.17 of 2009 under Section 125 of the Code of Criminal Procedure (for short Cr.P.C) against the husband and the same is pending on the file of the Judicial First Class Magistrate (JFCM), Dhone. This transfer petition is filed for transfer of that maintenance case to the Family Court or any other competent court at Kurnool. 3. The wife also filed D.V.C.No.1 of 2009 under the Protection of Women from Domestic Violence Act, 2005 (Act 2005) in the same court against the husband, his parents, his sister and the husband of his sister and they are respondents in the said DVC case. She claimed various reliefs in the said DVC case against the respondents therein. All of them filed Tr.Crl.P.No.173 of 2011 for transfer of the said DVC case also from the JFCM court at Dhone to the Family Court or any other competent court at Kurnool. 4. Various grounds are raised in both the transfer petitions seeking transfer of the aforesaid two cases to the Family Court or any other competent court at Kurnool. One of the grounds is that the husband filed divorce OP in the concerned court at Kadapa and that the wife filed a transfer petition in this court seeking transfer of that divorce OP to the Family Court at Kurnool and if all the cases are transferred to Kurnool it would be convenient for the parties to attend in the said cases. It must be mentioned here that the result of the said transfer petition relating to divorce OP is not made known to this court and the other side counsel says that it is still pending. It is also stated by the wife’s counsel that the wife also filed a criminal case under Section 498-A IPC and that is pending in the court at Dhone only. It is not necessary however to go into the merits of the matter having regard to the view that is being taken by this court in these matters. 5. At the time of arguments the learned counsel appearing for the husband has been specifically asked as to why the petitioners have directly approached this court and did not first approach the District and Sessions Court at Kurnool for the relief of transfer of the cases as both the JFCM court, Dhone, and the concerned courts at Kurnool are within the same sessions division of Kurnool. The reply of the husband’s counsel was that since Family Court is a District and Sessions Court and is an independent court, the Sessions Court at Kurnool does not have jurisdiction to entertain a transfer application and therefore they have directly approached this court. On the other hand, the learned counsel for the wife in both these petitions argued that the District and Sessions Court at Kurnool should have been approached in the first instance as contemplated under the proviso to Section 407(2) Cr.P.C. I think there is sufficient force in this contention of the wife’s counsel for the following reasons. 6. It may be noted that the petitioners in both these petitions are seeking transfer of both the aforesaid cases from the JFCM court at Dhone to the Family Court or any other competent JFCM Court at Kurnool. So far as DVC case is concerned, it may be noted that it cannot be transferred to a Family Court as according to Section 27 of the Act 2005 it is triable only by the JFCM court concerned and therefore it can be, if there are grounds for transfer, transferred only to a JFCM court at Kurnool. Now admittedly so far as the above relief is concerned the JFCM court at Kurnool and the JFCM court at Dhone are within the same sessions division i.e. the sessions division of Kurnool District. Section 407 Cr.P.C is the provision which confers power upon a high court to transfer cases. The proviso to Section 407(2) Cr.P.C. says that no application for transfer shall lie to the high court for transferring a case from one criminal court to another criminal court in the same sessions division unless an application for such transfer has been made to the Sessions Judge concerned and rejected by him. In the present case, to repeat, admittedly the petitioners have not moved such an application before the Sessions Court at Kurnool for transfer of DVC case. Hence it follows that this court cannot entertain the request of the petitioners made in Tr.Crl.P.No.173 of 2011 for transfer of the DVC case to any other JFCM court at Kunool. 7. That takes me to Tr.Crl.P.No.262 of 2010 relating to transfer of the maintenance case from the JFCM Court, Dhone to Kurnool. The first request made in this petition is that the maintenance case should be transferred from the JFCM Court, Dhone, to any other JFCM court at Kurnool. Admittedly petitioners did not file a transfer petitioner for this request before the Sessions Court, Kurnool, though both the courts are criminal courts situated in the same sessions division. Hence for the aforesaid reasons this request of the petitioners in this transfer petition cannot also be considered. 8. The other alternative relief or request claimed in this petition is that the maintenance case should be transferred to Family Court, Kurnool. With regard to this relief, it should be noted that a Family Court has jurisdiction under Section 8 of the Family courts Act, 1984 (Central Act of 1984), among other matters to deal with maintenance cases under Section 125 Cr.P.C and therefore such a case can be transferred to it. It is also true that a Family Court which is constituted under the above Act is to be presided over by an officer of the rank of the District Judge. 9. It may however be noted that Section 10(2) of the Central Act of 1984 in substance says that a maintenance case falling under Chapter-IX of the Cr.P.C shall be tried in accordance with the provisions of that chapter. In otherwords it follows that a maintenance case falling under Section 125 Cr.P.C should be tried in accordance with the Cr.P.C. To this extent it can be said that a Family Court while dealing with a maintenance case under Section 125 Cr.P.C acts as a criminal court as if it is constituted under the said Code. 10. It can therefore be said that for the purpose of maintenance cases under Section 125 Cr.P.C. a Family Court constituted in a district can also be treated as a criminal court falling within that district or sessions division which is co-extensive area wise or territorial limits wise with a district. In view of this, it follows that it becomes simply another criminal court in a sessions division for the purpose of Section 407(2) Cr.P.C insofar as maintenance cases under Section 125 Cr.P.C are concerned. 11. Thus from the above position it follows that a Sessions Judge of a District or sessions division will have power under Section 408 Cr.P.C to transfer a maintenance case under Section 125 Cr.P.C from a JFCM court in his sessions division to the Family Court also located in the same sessions division. For this reason I am of the opinion that the husband should have in the first instance moved the District and Sessions Judge/Court, Kurnool, for transfer of the maintenance case in question from Dhone to the Family Court, Kurnool and if no such application is made and rejected by the Sessions Judge that becomes a bar under Section 407(2) Cr.P.C for this court to entertain this transfer petition even for the above alternative request. 12. The learned counsel made an attempt to show as to what is the position of the Family Court vis-à-vis the District Court in a District. It is not necessary to go into the same as in the present case the request for transfer relates to a maintenance case under Section 125 Cr.P.C. So far as this case is concerned the above legal position, in my opinion, governs the matter. Hence the position of a Family Court under the Central Act of 1984 and its status vis-à-vis the District Court is not gone into. 13. Hence for the aforesaid reasons and in view of the bar contained in the proviso to Section 407(2) Cr.P.C., it follows that the petitioners in both these transfer petitions should first approach the District and Sessions Court at Kurnool seeking the relief of transfer and if they fail there then only they can come to this court. Accordingly both these transfer petitions are dismissed. The petitioners can urge all their grounds relating to the merits for transfer of the cases including the request of the wife for transfer of Divorce OP to Kurnool before the District and Sessions Court, Kurnool. ______________________ N. RAVI SHANKAR, J 15th July 2011 CVRK