Ashis Kumar Chakraborty, J. - (1.) THIS is an application under Section 24 of the Code of Civil Procedure, 1908, (in short "the Code") In this application, the petitioner has prayed for transfer of the application filed by her under Section 151 of the Code, in Matrimonial Suit No. 140 of 1985 before the learned Judge, 10th Bench, City Civil Court at Calcutta to the Family Court, District - Calcutta.
(2.) THE case of the petitioner in this application is stated below. The petitioner was married to the opposite party on September 28, 1972 and their marriage was solemnized in accordance with the Hindu custom rights and ceremonies under the Hindu Marriage Act, 1955. Out of the wedlock between the petitioner and the opposite party, on December 22, 1975 a girl child was born. In the year 1978, the opposite party instituted Matrimonial Suit No. 134 of 1978 before the learned Judge, 3rd Bench in the City Civil Court at Calcutta, against the petitioner claiming a decree for dissolution of marriage. On August 13, 1985 the opposite party withdrew the said Matrimonial Suit No. 134 of 1978. She used to stay at village -Parghata at Hasnabad, District - North 24 Parganas and the opposite party used to stay in Calcutta. However, the opposite party did not take her back at the matrimonial home. She made over certain papers containing her signatures to her advocate, as she was told that those will be necessary for taking steps for recovery of maintenance from the opposite party. In the year 2005, she learned that the opposite party has filed a suit being Title Suit No. 1581 of 2004 before the learned Judge, 5th Bench of the City Civil Court at Calcutta and after receipt of copy of the plaint filed in the said title suit, she came to learn that the opposite party had filed the above Matrimonial Suit No. 140 of 1985 before the learned Judge, 10th Bench, City Civil Court at Calcutta and obtained a decree for dissolution of marriage by divorce. After perusing the plaint filed in the said title suit, she came to learn that the said subsequent matrimonial suit was filed by the opposite party alleging that their marriage was under the Special Marriage Act, 1954. She never participated in the said Matrimonial Suit No. 140 of 1985. According to her, the said decree of divorce dated March 25, 1986 is vitiated by fraud and a nullity. She filed an application before the learned 10th Judge, City Civil Court at Calcutta for recalling the said decree for divorce dated March 25, 1985. By an order dated January 21, 2014, the learned Judge, 10th Bench, City Civil Court at Calcutta rejected the said application on the ground that after the establishment of the Family Court, Calcutta under the Family Courts Act, 1984, the learned City Civil Court lacks the jurisdiction to entertain the said application for recalling of the said decree for divorce. She challenged the said order dated January 21, 2014 before this Court by filing a revisional application under Article 227 of the Constitution of India. By an order dated February 24, 2015, a learned Single Judge of this Court, dismissed the said revisional application after granting opportunity to the parties to take appropriate steps in accordance with law. Thereafter, she filed an application under Section 151 of the Code before the learned Judge, 10th Bench, City Civil Court at Calcutta, praying for inter alia, recalling of the said ex parte decree dated March 25, 1985 from the Court of the learned Judge, 10th Bench, City Civil Court at Calcutta to the appropriate Bench of the learned Small Causes Court at Calcutta. The petitioner is seeking transfer of the said application under Section 151 of the Code to the learned Family Court, Calcutta.
(3.) IN support of the application, Mr. Chandra submitted that the said application under Section 151 of the Code filed by the petitioner is a "proceeding" under Section 24 of the Code and in view of the provisions in Sub -section (5) of Section 24 of the Code, this Court has the jurisdiction to transfer the said application from the learned Judge, 10th Bench, City Civil Court at Calcutta, which lacks the jurisdiction to entertain the said application to the appropriate Bench of the learned Family Court, Calcutta. He also relied on the decision of this Court in the case of Power Grid Corporation of India Limited v. Musluck Corporation & Ors. reported in : (2015) 2 Cal LT 379(HC);