Case Note & Summary
The applicant wife filed a Miscellaneous Civil Application under Section 24 of the Code of Civil Procedure, 1908, and also invoked Article 227 of the Constitution, seeking transfer of Case No.155/SS/2009 pending before the learned Metropolitan Magistrate, 40th Court, Girgaon, to the Family Court at Bandra, to be tried along with Petition No.A-1215 of 2011 and Petition No.B-31 of 2011. The applicant and respondent were married on 5th November 1972 under the Foreign Marriage Act. Disputes arose, and the applicant filed a complaint under the Protection of Women from Domestic Violence Act, 2005 before the Metropolitan Magistrate, alleging that the respondent had locked her out of the matrimonial home. The respondent filed two petitions before the Family Court at Bandra: one under the Family Courts Act for various reliefs and another under the Foreign Marriage Act read with the Special Marriage Act for dissolution of marriage. The applicant sought transfer of the DV Act case to the Family Court for joint trial. The respondent raised a preliminary objection that Section 24 CPC was not applicable because the Metropolitan Magistrate is not subordinate to the High Court. The court upheld the objection, holding that Section 24 CPC applies only to courts subordinate to the High Court, and a Metropolitan Magistrate under the DV Act is not a court subordinate to the High Court. The court also noted that even under Article 227, transfer was not warranted as the proceedings before the Magistrate were at an advanced stage (cross-examination of the applicant had commenced) and the applicant had not demonstrated any inconvenience or likelihood of prejudice. The application was dismissed.
Headnote
A) Civil Procedure - Transfer of Proceedings - Section 24 CPC - Maintainability - Metropolitan Magistrate under Domestic Violence Act is not subordinate to High Court - Held that Section 24 CPC applies only to courts subordinate to the High Court, and a Metropolitan Magistrate exercising powers under the DV Act is not a court subordinate to the High Court for the purpose of transfer under Section 24 CPC (Paras 2, 7-10).
B) Constitutional Law - Transfer under Article 227 - Discretionary Power - Advanced stage of proceedings - Held that even if Article 227 is invoked, transfer is not warranted when the proceedings before the Magistrate are at an advanced stage and the applicant has not shown any inconvenience or likelihood of prejudice (Paras 11-13).
Issue of Consideration
Whether a petition under Section 24 of the Code of Civil Procedure, 1908 is maintainable for transfer of proceedings under the Protection of Women from Domestic Violence Act, 2005 from a Metropolitan Magistrate to a Family Court, and whether such transfer should be granted.
Final Decision
The application is dismissed. The court held that Section 24 CPC is not applicable as the Metropolitan Magistrate is not a court subordinate to the High Court. Even under Article 227, transfer is not warranted as the proceedings before the Magistrate are at an advanced stage and no inconvenience or prejudice has been shown.
Law Points
- Section 24 CPC applies only to courts subordinate to High Court
- Metropolitan Magistrate under DV Act is not subordinate to High Court
- Transfer under Article 227 is discretionary and not warranted when proceedings are at advanced stage
Case Details
2015 LawText (BOM) (12) 131
MISC. CIVIL APPLICATION NO. 255 OF 2015
Mr. Rohan Cama i/b Ms. Sapna Rachure for the Applicant, Mr. Satyavrat Joshi i/b Vidhi Partners for the Respondent
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Nature of Litigation
Transfer petition under Section 24 CPC and Article 227 seeking transfer of DV Act case from Metropolitan Magistrate to Family Court.
Remedy Sought
Applicant wife sought transfer of Case No.155/SS/2009 from the learned Magistrate Court 40th Court, Girgaon to Family Court Bandra and that the same be tried with Petition No.A-1215 of 2011 and Petition No.B-31 of 2011 pending before the Family Court, Bandra.
Filing Reason
The applicant wife alleged that the respondent husband had locked her out of the matrimonial home, leading her to file a complaint under the Domestic Violence Act. She sought transfer of that case to the Family Court where related matrimonial proceedings were pending.
Issues
Whether a petition under Section 24 CPC is maintainable for transfer of proceedings under the Domestic Violence Act from a Metropolitan Magistrate to a Family Court.
Whether transfer should be granted under Article 227 of the Constitution.
Submissions/Arguments
Respondent's preliminary objection: Section 24 CPC cannot be attracted because the Metropolitan Magistrate is not subordinate to the High Court.
Applicant's argument: The transfer is necessary for convenience and to avoid multiplicity of proceedings.
Ratio Decidendi
Section 24 of the Code of Civil Procedure, 1908 applies only to courts subordinate to the High Court. A Metropolitan Magistrate exercising powers under the Protection of Women from Domestic Violence Act, 2005 is not a court subordinate to the High Court for the purpose of transfer under Section 24 CPC. Further, transfer under Article 227 is discretionary and not warranted when proceedings are at an advanced stage and no prejudice is shown.
Judgment Excerpts
Section 24 of the Code of Civil Procedure, 1908 cannot be attracted to the facts of this case in view of the fact that the learned Metropolitan Magistrate, 40th Court before whom the applicant has filed proceedings under the provisions of 'Protection of Women from Domestic Violence Act, 2005' is not subordinate to the High Court.
Insofar as the application under Article 227 of the Constitution of India is concerned, the proceedings before the learned Magistrate are at an advanced stage. The applicant has not made out any case for transfer of the said proceedings.
Procedural History
The applicant wife filed a complaint under the Domestic Violence Act before the Metropolitan Magistrate, Girgaon (Case No.155/SS/2009). The respondent husband filed two petitions before the Family Court at Bandra (Petition No.B-31 of 2011 under Family Courts Act and Petition No.A-1215 of 2011 under Foreign Marriage Act read with Special Marriage Act). The applicant then filed the present Miscellaneous Civil Application under Section 24 CPC and Article 227 seeking transfer of the DV Act case to the Family Court. The respondent raised a preliminary objection as to maintainability. The court heard the parties and dismissed the application.
Acts & Sections
- Code of Civil Procedure, 1908: Section 24
- Protection of Women from Domestic Violence Act, 2005:
- Constitution of India: Article 227
- Family Courts Act, 1984: Section 7(1)(c), 7(1)(d)
- Foreign Marriage Act, 1969:
- Special Marriage Act, 1954: Section 27(1)(b), 27(1)(d)
