LexGUDA VIJAYALAKSHMI versus GUDA RAMCHANDRA SEKHARA SASTRY
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223
GUDA VIJAYALAKSHMI
v.
GUDA RAMCHANDRA SEKHARA SASTRY
March 13, 1981
[ V.D. TULZAPURKAR AND AMRENDRA NATH SEN, JJ.]
Transfer of proceedings under the Hindu Marriage Act-Power of the Supreme
Court to transfer under section 25 of the Civil Procedure Code-Whether section
25 C.P.C. gets excluded by reason 0{ provisions of sections 21 and 21A of the
Hindu Marriage Act, 1955.
The petitioner (wife) filed a suit (O.P. 72/79) in forma pauperis seeking
maintenance from the respondent (husband) in the court of subordinate Judge,
Elum (Andhra Pradesh). On the receipt of the notice of the suit, the respondent
filed a divorce suit (Petition Case No. 28/1980) against the wife under section 13
, of the Hindu Marriage Act, 1955 in the court of the District Judge, Udaipur
(Rajasthan). By the instant transfer petition filed under section 25 C.P.C.,
1908, the wife sought to get the suit at Udaipur transferred to Eluru.
A
B
c
D
A preliminary objection was raised to the effect that section 25 of the
Civil Procedure Code, which gets excluded by reason of the provisions of sec-
tions 20 and 21 of the Hindu Marriage Act, 1955, is not applicable to proceed-
ings under the said Act and as such the Supreme Court has no power to transfer
the husband's suit from Udaipur District Court, Udaipur (Rajasthan) to Eluru
District Court, Eluru (A.P.).
E
Rejecting the preliminary objection, the Court
HELD : Per curiam
On merits, it is expedient for the ends of justice to transfer the husband's
suit pending in the District Court Udaipur (Rajasthan) to the District Court at
Eluru (Audhra Pradesh), where both the proceedings could be tried together and
for that purpose, the wife is agreeable to have her maintenance suit transferred
to the District Court at Eluru (A.P.). [226 A-Bl
Per Tulzapurkar J.
1. It will invariably be expedient to have a joint or consolidated hearing or
trial by one and the same Court of a husband's petition for restitution of con-
jugal rights on the ground that the wife has withdrawn from his society withont
reasonable excuse under section 9 of the Hindu Marriage Act and the wife's
petition for judicial separation against her husband on ground of cruelty under
section 10 of the said Act in order to avoid conflicting decisions being rendered
by twG> different Courts. In such a situation rnsort will have to be had to tltc!
F
G
H
224
SUPREME COURT REPORTS
(I 981] 3 S.C.R.
A
powers under sections 23 to 25 of the Civil Procedure Code for directing transfer
of the petitions for a consolidated hearing. [228 G-H, 227 A]
B
c
D
E
2:1. On a proper construction of the relevant provisions, it cannot be said
that the substantive provision contained in section 25 Civil Procedure Code is
excluded by reason of section 21 of the Hindu Marriage Act. 1955. [226 FJ
2 ;.2. In terms, section 21 C.P.C. does not make any distinction between pro-
cedural and substantive provisions of C.P.C. and all that it provides is that the
Code, as far as may be, shall apply to all proceedings under the Act and the
phrase "as far as may be" means and is intended to exclude only such provi-
sions of the Code as are or may be inconsistent with any of the provisions of
the Code. It is impossible to say that such provisions of the Code as partake
of the character of substantive law are excluded by implication as no such imp-
lication can be read into section 21 of the Act and a particular provisio.n of the
Code irrespective of whether it is procedural or substantive will not apply only
if it is inconsistent with any provisions of the Act. [226 G-H, 227 A-BJ
3. Section 21A of the Hindu Marriage Act, 1955 does not exclude the
power of transfer conferred upon the Supreme Court by the present section 25
C.P.C., in relation to proceedings under that Act. The marginal note of sec-
tion 21 A itself makes it clear that it deals with power to transfer petitions and
direct their joint or consolidated "trial in certain cases" and is not exhaustive.
Section 21A does not deal with the present section 25 C.P.C. which has been
substituted by an amendment which has come into force with effect from Febru-
ary 1, 1977 (section 11 of the Amending Act 104, 1976). By the amendment
very wide and plenary power has been conferred on the Sllpreme Court for the
first time to transfer any suit, appeal or other proceedings from one High Court
to another High Court or from one Civil Court in one State to another Civil
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