Lucknow Bench Competent To Hear Transfer Pleas For Family Court Cases Falling Within Its Jurisdiction, Not Principal Bench: Allahabad HC
The Allahabad High Court has clarified that the transfer applications concerning cases pending in Family Courts which fall within the territorial jurisdiction of the Lucknow Bench of the High Court must be filed before the Lucknow Bench itself, not the principal seat at Allahabad.
A bench of Justice Kshitij Shailendra emphasised that the Lucknow Bench is the appellate court competent to hear appeals against orders passed by Family Courts falling within its territorial jurisdiction, so transfer applications related to such matters would have to be filed before the Lucknow bench only and not before the principal seat at Allahabad, where such an appeal would be incompetent.
To hold thus, the Court referred to relevant provisions of the Family Court Act and the Civil Procedure Code, 1908, especially Sections 22 (Power to transfer suits which may be instituted in more than one Court) and 23 (To what Court application lies) of the CPC.
For context, according to Section 23(1) CPC, when several courts with jurisdiction are subordinate to the same appellate court, any transfer application (under Section 22 CPC) must be made to the appellate court. In other words, this provision provides that subordination of courts in the matters of transfer has to be understood in the light of “Appellate Court”.
Further, Section 23 (3) states that where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.
In this regard, the Court explained these provisions with an example: if an order is passed by a Family Court situated in Gonda or Basti or Sitapur or any other district falling under territorial limits of jurisdiction of Lucknow Bench, appeal under Section 19 of the Family Courts Act, 1984 would lie before the Lucknow Bench and not before the Principal Seat at Allahabad.
The Court added that since the Lucknow Bench is the Appellate Court in such matters, a transfer application would lie before it (the Lucknow bench) and not before the Principal Seat at Allahabad.
Further, the Single Judge also referred to Section 7 of the Family Court Act to observe that a Family Court is deemed a District Court and under Section 2(4) CPC, a District Court's jurisdiction is confined to its local limits. Thus, the territorial jurisdiction of a Family Court determines where applications for transferring pending proceedings should be filed.
The Court also referred to the Supreme Court's 2023 ruling in the case of Shah Newaz Khan and others vs. State of Nagaland and others 2023 LiveLaw (SC) 146 wherein it was held that where several courts having jurisdiction are subordinate to one appellate court, a transfer application may be made to such appellate court and such court may transfer a case from one court subordinate to it to another court subordinate to it.
The Single Judge (sitting at the Principal Bench) was essentially dealing with an application filed by one Shivika Upadhyay seeking to transfer a case under Section 13(1)(a) of the Hindu Marriage Act, 1955, from the Principal Judge of the Family Court in Lucknow to the District Judge in Bareilly.
It was argued that since part of the cause of action has arisen within the territorial limits of the Principal Bench's jurisdiction, i.e., at Prayagraj, the transfer application is maintainable as the applicant has the choice of forum.
The Court noted that many such transfer applications concerning Family Courts falling within the jurisdiction of the Lucknow Bench are being filed at the Principal Seat in Allahabad, and it is often argued that since "part of cause of action" lies within Principal Seat's territorial limits, hence the pleas are maintainable.
The Court said that these arguments, whether based on "cause of action" or "forum convenience," rely on precedents related to territorial jurisdiction in writ petitions under Article 226 of the Constitution, which allows any High Court to exercise jurisdiction if the cause of action, in whole or in part, arises within its territorial limits.
The Court, however, added that in matrimonial matters, when a transfer is sought based on the convenience of the parties, provisions of CPC read with the Family Courts Act have to be referred to, which clarifies that the territories to which any Family Court exercises its jurisdiction would determine the Forum where application seeking transfer of proceedings pending in such areas would lie.
In view of this, noting that the instant transfer application before the Principal Bench is not maintainable, the Court rejected it. However, it added that this order will not preclude the applicant from filing a transfer application before the Lucknow Bench.
Appearances
Counsel for Applicant: Sandeep Kumar
Case title – Shivika Upadhayay vs. Pushpendra Trivedi
Case citation: