Family Courts Can't Transfer Cases, Power Lies Only With HC Or District Court Under Section 24 CPC: Rajasthan High Court

The Rajasthan High Court has clarified that family courts lack the power to transfer cases from one family court to another within the same district as Section 24 CPC only empowers District Courts or High Courts to transfer cases. Section 24 CPC states, that High Court or District Court can while acting on an application or suo motu, transfer, withdraw, or re-transfer suits, appeals, or other proceedings pending before it or any subordinate court. A division bench of Justice Sudesh Bansal and Justice Anil Kumar Upman was considering a civil reference made by a family court, on the following questions:Whether the general transfer power of the High Court or the District Judge under Section 24, CPC, could be exercised by the Family Court to transfer pending cases from one Family Court to another, within the same district?If no, whether single judge of the High Court pass a judicial order, thereby giving power to the Family Court, to transfer cases from one Family Court to another within the same district?Whether the order dated 24.04.2017, passed by Single Judge of High Court in S.B. Transfer Application No.143/2016, vesting the power of transfer with Family Court, expounds a binding judicial precedent or merely is in form of an opinion of a Judge and what is the true purport of the order dated 24.04.2017?”While making references to Section 7, Family Courts Act, and Section 24, CPC, the first question was answered by the Court in negative. It said:"Family Court lacks jurisdiction to transfer cases from one Family Court to another even within same District and Section 24 CPC empowers only the District Court or the High Court, not Family Courts to transfer cases. Since, Family Courts are governed by their own special statutes and no such power to transfer cases is conferred upon them, the Family Court cannot exercise powers of transfer under Section 24 CPC"It was observed that since the Family Courts were governed by their own special statutes, and had no power to transfer cases, such power could not be exercised by them under Section 24, CPC. The bench said:“The Family Court while exercising judicial power and jurisdiction, cannot travel beyond the jurisdiction entrusted by virtue of Section 7 of Family Courts Act.”In relation to the second question, the Court held that since the Family courts had no transfer powers, such power could not be conferred upon them by way of a judicial order by a single judge of the High Court. While making reference to the decision of the single judge, that became the starting point of this civil reference, the Court held that the single judge missed to take into consideration Section 7 of the Family Courts Act that did not entrust Family Courts with the power to transfer cases. “…power of transfer the cases under Section 24 CPC is exercised, only in respect of proceedings pending in a subordinate Court, and since one Family Court is not subordinate to another Family Court in the same City/District, therefore, power of transfer can not be exercised by one Family Court to transfer the cases to another Family Court.”In this background, the Court held that the views expressed by the single judge to the effect that family courts situated in the same city/place could exercise power of transfer suo moto or based on an application by parties to transfer cases inter-se from one Family Court to another within same city/place/district, was held to be per incuriam and violative of Section 24, CPC.The civil reference was registered, in a case wherein the Family Court by its order dated 06.12.2025, transferred four matrimonial cases pending before it to another Family Court and thereby exercised power of transfer vested in the High Court or the District Court. This, after the family court had resorted to a "general view" expounded by Single Judge bench of the high court in S.B. Civil Transfer Application No.143/2016 Shantanu Agarwal vs. Anubha Jain dated 24.04.2017. Then the second family court in its order dated 18.12.2025 opined that general view expressed by Single Judge bench in its 24.04.2017 order appeared to be in conflict with Section 24 CPC giving rise to a contradictory situation thereby allowing Family Court to exercise power of transfer of cases.Hence the second family court asked for the guidance/opinion of the High Court on this issue. In furtherance to the order dated 18.12.2025 passed by the Judge, Family Court No.2, Bharatpur the present Civil Reference had come up before the high court, under the administrative direction of the Acting Chief Justice.The bench hence observed that the order of the single judge of 2017 in paragraphs Nos.4, 6 & 9 of the order can be held per incuriam and is not a binding judicial precedent, hence, need not to be followed by the Family Courts. The single judge had held that "Family Courts situated in the same city/place can exercise power of transfer suo moto or on an application by parties to inter se transfer the cases from one...

Family Courts Can't Transfer Cases, Power Lies Only With HC Or District Court Under Section 24 CPC: Rajasthan High Court

Nupur Agrawal

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