The Tripura High Court in Dipika Sharma vs. Sudip Sharma, has held that the high court, by exercising its power under Section 24 of the Code of Civil Procedure, can transfer a matrimonial proceeding from family court to district court (in a district where there is no family court) and from district court to family court or from district court to other district court. The court also held that a maintenance application under Section 125 CrPC pending before a magistrate can also be transferred to a family court and vice versa, exercising power conferred to the high court under 407 CrPC.
Answering a reference to it which had arisen from a batch of transfer petitions, the Division Bench comprising Acting Chief Justice T. Vaiphei and Justice S.C. Das observed: “Once, the family court is also a court subordinate to the high court, the high court’s power to transfer a proceeding from the family court to any other district court or from the district court to the family court cannot be said to have excluded or restricted. The high court in exercise of power under Section 24 CPC, in our considered opinion has the power to transfer matrimonial proceedings from a family court to family court or family court to district court or district court to family court and similarly, the high court has also the power to transfer a proceedings under Chapter IX of the CrPC from family court to magisterial court and vice versa.”
Holding that Section 24 of CPC and Section 407 of the CrPC confer power on the high court to transfer cases, the Bench observed: “It cannot be said that once a proceeding from family court to a district court is transferred, the parties will be deprived of the special provisions of the Family Courts Act. Be that as it may, the Family Courts Act has not as a whole excluded the application of CPC or CrPC. The provisions of the procedural law prescribed in the CPC, CrPC. or in the Evidence Act which is not in conflict and/or inconsistent with the provisions of the Family Courts Act shall apply in respect of proceedings to which the family court exercises jurisdiction.”
Read the order here.