IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.11.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL Tr.C.M.P.No.407 OF 2008 and M.P.No.1 of 2008 Mrs.Annie Tarini ..Petitioner vs L.C.Joshua ..Respondent Tr.C.M.P.is filed to withdraw O.S.No.4336/2006 now pending on the file of XII Assistant City Civil Court, Chennai and transfer the same to be tried along with F.C.O.P.No.313/2006 now pending on the file of I Additional Family Court at Chennai. For petitioner : Mr.S.Thiruvenkataswamy For respondent : Mr.G.Ramachandran ORDER The petitioner in the Transfer C.M.P. is the wife. The respondent herein is the husband of the petitioner. The petitioner/wife has filed the Transfer C.M.P.No.407/2008 praying for issuance of an order by this Court to withdraw the suit O.S.No.4336/2006 pending on the file of XII Assistant City Civil Court, Chennai and to transfer the same to be tried along with F.C.O.P.No.313/2006 pending on the file of I Additional Family Court, Chennai. 2. At present the respondent/husband has instituted a suit O.S.No.4336/2006 on the file of XII Assistant City Civil Court, Chennai seeking a relief of partition of the suit property, namely, https://hcservices.ecourts.gov.in/hcservices/ Flat No.A/7/3, Gemini Parsan Complex, No.599, Mount Road, Chennai 600 006 into two equal shares and allot one such share to him etc and that the said suit has been decreed exparte and later the same has been set aside and that a written statement has been filed by the petitioner herein. However, the F.C.O.P.No.313/2006 has been filed by the respondent/husband praying for a decree of divorce on the file of I Addditional Family Court, Chennai. 3. In the suit O.S.No.4336/2006 on the file of XII Assistant City Civil Court, Chennai a proof affidavit has been filed by the husband and Exs.A1 and A2 were marked and the matter stands posted for cross-examination of P.W.1. The learned counsel for the petitioner submits that the dispute between the parties relates to the suit property and their claim over the subject matter in suit O.S.No.4336/2006 on the file of XII Assistant City Civil Court, Chennai cannot be retained or maintained by the Civil Court and that the Civil Court lacks jurisdiction from entertaining any suit of such nature and grant the relief claimed by the respondent/husband and in the said suit as plaintiff and therefore prays for allowing the Transfer C.M.P.No.407/2008 in the interests of justice. 4. The respondent/husband has filed a detailed counter inter- alia stating that he purchased 802/8428.0 share in the undivided land having an extent of 36 grounds and 280 sq.ft. together with Flat No.A/7/3 in 7th Floor of Gemini Parson Complex and that the flat is measuring 1470 sq.ft. and at the time of marriage she got converted into Protestan Christian and that she is converted into Pentagos without his permissison and that the trial in O.S.No.4336/2006 before the XII Assistant City Civil Court, Chennai is in the stage of completion whereas F.C.O.P.No.313/2006 is in the stage of conciliation. Therefore, the Transfer C.M.P.No.407/2008 has been projected to protract proceedings and only with a view to delay the matter and therefore prays for dismissal of the application. 5. The learned counsel for the revision petitioner/wife relies on the decision K.A.ABDUL JALEEL v. T.A.SHAHIDA reported in AIR 2003 SCC 2525 at 2527 wherein the Honourable Supreme Court has interalie held that, "It is now a well-settled principle of law that the jurisdiction of a Court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up." 6. In this connection section 7 of the Family Courts Act, 1984 deals with the jurisdiction of the Family Court which runs as follows: https://hcservices.ecourts.gov.in/hcservices/ "7.Jurisdiction.-(1)Subject to the other provisions of this Act, a Family Court shall- (a)have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b)be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends. Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- (a)a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b)a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c)a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d)a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e)a suit or proceeding for a declaration as to the legitimacy of any person; (f)a suit or proeeding for maintenance; (g)a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2)Subject to the other provisions of this Act, a Family Court shall also have and exercise- (a)the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for https://hcservices.ecourts.gov.in/hcservices/ maintenance of wife, children and parents)of the Code of Criminal Procedure, 1973(2 of 1974); and (b)such other jurisdiction as may be conferred on it by any other enactment." 7. Section 8 of the Family Courts Act, 1984 deals with the exclusion of jurisdiction and pending proceedings which runs as follows: "8.Exclusion of jurisdiction and pending proceedings.-Where a Family Court has been established for any area,- (a)no district Court or any subordinate civil Court referred to in sub-section(1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section; (b)no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c)every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),- (i)which is pending immediately before the establishment of such Family Court before any district Court or subordinate Court referred to in that sub- section or, as the case may be, before any Magistrate under the said Code; and (ii)which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established." 8. It is to be noted that section 8 of the Family courts Act, 1984 does not whittle down or take away the High Court's power of transfer conferred under Section 24 of the Civil Procedure Code in the considered opinion of this Court. As a matter of fact, section 7 (c) of the Family Courts Act, 1984 empowers a Family Court to deal https://hcservices.ecourts.gov.in/hcservices/ with a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them and so for all practical purposes the I Additional Family Court, Chennai can decide the issues in the suit O.S.No.4336/2006 now pending on the file of XII Assistant City Civil Court, Chennai between the parties. 9. Indeed, section 8 of the Family Courts Act, 1984 excludes the jurisdiction of all Civil Courts within the local jurisdiction of Family Court to deal with the categories of suits and proceedings enumerated in the explanation to section 7. In effect, all pending suits and proceedings of the categories mentioned in the Explanation get statutorily transferred to Family Court on its establishment in regard to the particular area for which the Family Court is established, in the considered opinion of this Court. 10. As far as the present case is concerned the parties in between them have a Civil Suit proceeding O.S.No.4336/2006 on the file of XII Assistant City Civil Court, Chennai and the F.C.O.P.No.313 of 2006 on the file of I Additional Family court. In the F.C.O.P.No.313 of 2006 the respondent/husband claims the relief of divorce against the petitioner/wife. In the Civil suit O.S.No.4336/2006 on the file of XII Assistant City Civil Court, Chennai, the respondent/husband prays a relief of partition of suit property, more particularly and fully described in the schedule, namely Flat No.A/7/3, Gemini Parson Complex, No.599, Mount Road, Chennai 600 006 into two equal shares and allot one such share to the plaintiff. Since the suit O.S.No.4336/2006 on the file of XII Assistant City Civil Court, Chennai and the F.C.O.P.No.313/2006 on the file of Family Court, Chennai are between the parties and the same does not take beyond the jurisdiction of the Family Court and per contra, the I Additional Family Court, Chennai can try the Civil Suit O.S.No.4336/2006 pending on the file of XII Assistant City Civil Court, Chennai along with F.C.O.P.No.313/2006 and in that view of the matter this Court allows the Transfer C.M.P.No.407/2008 in the interests of justice. 11. In the result, the Transfer C.M.P.No.407/2008 is allowed. The suit O.S.No.4336/2006 pending on the file of XII Assistant City Civil Court, Chennai is ordered to be transferred to the file of I Additional Family Court, Chennai to be tried along with F.C.O.P.No.313/2006 pending on the file of I Additional Family Court, Chennai and the I Additional Family Court, Chennai is directed to dispose of both the matters within a period of four months from the date of receipt of a copy of this order. The XII Assistant City Civil Court, Chennai is directed to transfer the O.S.No.4336/2006 pending on its file to the file of I Additional Family Court, Chennai within 3 days from the date of receipt of copy of this order. No costs. Consequently, M.P.No.1/2008 is disposed of. The parties are directed to cooperate with the I Additional Family Court, Chennai in https://hcservices.ecourts.gov.in/hcservices/ regard to the conclusion of proceedings in both the cases. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sal To 1.The XII Assistant City Civil Court, Chennai 2.The First Additional Judge, Family Court, Chennai 3.The Registrar, City Civil Court, Chennai. 1 CC To Mr.S.Thiruvenkataswamy, Advocate, SR NO.64012 Tr.C.M.P.No.407/2008 & M.P.No.1/2008 rc(co) pmk/21.11.2008. https://hcservices.ecourts.gov.in/hcservices/