ORDER
P.S. Narayana, J.
1. The petitioner/wife filed the transfer CMP under Section 23(3) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) praying for transfer of O.P.No. 41 of 2002 on the file of the Family Court, City Civil Court, Secunderabad to be tried along with H.M.O.P. No. 179 of 2001 on the file of the Principal Subordinate Judge at Chengalput in the State of Tamil Nadu as the questions involved are substantially the same and parties are the same and pass such other suitable orders.
2. The wife filed an affidavit in detail in respect of the transfer CMP and the respondent/husband also filed a counter-affidavit giving more details, virtually denying all allegations. Several of the allegations made by both the wife and the husband in the present transfer CMP relate to merits or demerits of the main proceedings which are to be decided in both the O.P.’s referred to supra, pending before the respective Courts.
3. Sri Nagabhushana Rao, the Counsel representing the petitioner/wife had taken me through the allegations made in the affidavit filed in support of the transfer CMP and had submitted that the petitioner filed H.M.O.P.No. 252 of 2000 on the file of the Subordinate Judge, Poonamallee. H.M.O.P. No. 252 of 2000, originally on the fife of Subordinate Judge’s Court, Poonamallee which no doubt was transferred on administrative grounds to Principal Subordinate Judge’s Court, Chengalput was numbered as H.M.O.P.No. 179 of 2001. The learned Counsel also submitted that the wife filed the said O.P. for restitution of conjugal rights under Section 9 of Hindu Marriage Act, 1955. The learned Counsel also submitted that the wife is always ready and willing to live with the husband and for the reasons which had been narrated in detail, the problems had cropped up. The learned Counsel further submitted that after H.M.O.P. No. 252 of 2000 was filed on the file of the Subordinate Judge, Poonamallee the respondent/husband had filed O.P.No. 41 of 2002 on the file of the Family Court, City Civil Court, Secunderabad praying for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 and this was thought of only to put the wife into trouble. It is also stated that the petitioner has no means to support herself and she is living at the mercy of her father and her brother in meeting even travel expenses to and fro from Chennai to Hyderabad and being a lady she cannot travel alone from Chennai to Hyderabad and the petitioner also had stated that the respondent/husband is making certain allegations only with a view to gain sympathy of the Court. The learned Counsel further had submitted on the question of maintainability of the present transfer CMP that in view of the clear language employed under Section 23(3) of the Code, this Court is definitely empowered to order transfer of a proceeding pending on the file of a Subordinate Court to High Court of Andhra Pradesh to yet another Subordinate Court of High Court of Madras. The learned Counsel also submitted that the powers which can be exercised under Section 23(3) of the Code by the respective High Courts and Section 25 of the Code by the Supreme Court are in a way concurrent exercise of powers and the power under Section 23(3) of the Code to order transfer in such cases is in no way curtailed by Section 25 of the Code. The learned Counsel also placed strong reliance on Mamta Gupta v. Mukund Kumar Gupta, .
4. On the contrary, Sri Eranki Phani Kumar, the Counsel representing respondent/ husband had taken me through the allegations made in the counter-affidavit in detail and had referred to paras 5 and 15 of the counter-affidavit in particular. The learned Counsel further submitted that the conduct of the wife alone is blameworthy and there is no fault at all on the part of the husband and the husband is only a research scholar without any employment and he will also be placed in a difficult situation, if he is driven to the Court at Chengalput for the purpose of contesting the matrimonial matters. The Counsel also had made elaborate submissions relating to several aspects touching the merits of both the matrimonial proceedings pending before the respective Courts. The Counsel also submitted that in view of the specific power conferred on the Supreme Court to transfer suits under Section 25 of the Code, this Court cannot definitely exercise the power under Section 23(3) of the Code.
5. Heard both the Counsel.
6. At the outset, it can be stated that in a catena of decisions the Apex Court held that while deciding transfer of matrimonial proceedings the convenience of wife should be taken into consideration. In Sumita Singh v. Kumar Sanjay, , while dealing with the transfer of matrimonial proceedings initiated by husband against wife, it was held that it is the convenience of the wife which may have to be looked at and accordingly the transfer was ordered. It is stated by the petitioner that the marriage was celebrated on 17-12-1999 at Sree Ganesh Mahal Kalayana Mandapam, 315, Medavakkam Main Road, Madipakkam, Chennai as per Hindu rites and custom. Subsequent, thereto, on 20-12-1999 on the file of the Sub-Registrar, Velacherry the marriage was registered. Several other allegations relating to collection of cheque, D.D. and other particulars also had been pleaded. It was further stated that on 30-8-1999 betrothal ceremony was conducted at Chennai and the marriage was consummated at Chennai. On 23-12-1999, both the petitioner and respondent and the mother of the respondent left Chennai to Hyderabad since the respondent’s parents were living there and the respondent was working as Systems Manager in a private concern at Hyderabad. Several other allegations relating to the discharge of duties and gifting of cash, jewellary also had been made. The allegations relating to the demand of further sum and other allegations relating to harassment also had been pleaded at paras 4 and 5. The petitioner also had explained all the family details at para 9 of the affidavit and had prayed for the transfer. The respondent filed a counter-affidavit in detail and specific stand was taken by the respondent that the conduct of the petitioner alone is blameworthy and virtually had denied all the allegations made by the petitioner. In fact, at para 5 of the counter-affidavit it was specifically stated that on 30-12-1999 while petitioners father was leaving for Chennai he had informed the respondent and his parents, they should send the petitioner on 6-1-2000 as the ‘Pushya Maasam’ commences from 7-1-2000. Accordingly, the petitioner’s ticket to Chennai was booked on 30-12-1999. All the other allegations relating to the demand and ill-treatment or harassment had been specifically denied. It was also stated that the petitioner and her father already lodged a complaint with the A.P. Women’s Commission against the respondent and his parents alleging harassment and once again lodged complaint with Kukatpally Police Station on 13-7-2000 alleging dowry harassment. The other details also had been narrated at paras 4, 15, 16 and 17 of the counter-affidavit. The specific stand taken by the respondent/ husband is that there are no threats at all to the petitioner. On the contrary, the threats are posed to the respondent and also the petitioner is resorting to filing of false complaints and putting the respondent and his parents into trouble. As seen from the affidavit and counter-affidavit almost all the allegations have touched only merits and demerits of the questions in controversy to be decided in the pending matrimonial proceedings and it is needles to say that these are all matters to be decided on evidence being recorded after the evidence is let in by both the parties.
7. Now, the only question is whether the relief of transfer prayed for by the petitioner/wife can be granted in the present transfer CMP or not?
8. The petitioner/wife had made the allegations that she is depending only on her father and she has no support and she is at the mercy of her brother for meeting the travelling expenses and she being a lady cannot travel alone all along from Chennai to Hyderabad. No doubt, the husband also is expressing the difficulties and his position to attend the Court at Chengalpet to contest the matrimonial proceedings. The relief prayed for is to transfer O.P.No. 41 of 2002 on the file of the Family Court, City Civil Court, Secunderabad to the Principal Subordinate Judge’s Court at Chengalput falling under the High Court of Madras to be tried along with H.M.O.P.No. 179 of 2001 pending on the file of the said Court.
9. Section 23(3) of the Code reads as hereunder:
“Where such Courts are subordinate to different High Court, 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.”
10. Likewise Section 25 of the Code dealing with Power of Supreme Court to transfer suits, etc., reads as follows:
(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re-try it or proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.”
11. A reading of both the provisions will clearly go to show that these provisions are independent provisions and absolutely there is no conflict between these two provisions. Merely, because the High Court is empowered to order transfer of a proceeding pending before a Subordinate Court within its jurisdiction to another Court Subordinate to another High Court, it may not come in the way of the powers which may be exercised by the Supreme Court under Section 25 of the Code. Hence, by a close reading of both the provisions aforesaid, I am of the considered opinion that the power under Section 23(3) of the Code can be definitely exercised by this Court and the same is not in any way curtailed by Section 25 of the Code. In fact, I am well supported in this regard by the view expressed by this Court in Mamta Gupta’s case (supra). Hence, in view of the same, I am of the considered opinion that such power can be exercised by invoking Section 23(3) of the Code. Further, taking into consideration the nature of allegations made in the affidavit filed in support of the transfer CMP and also the allegations made in the counter-affidavit filed by the respondent/husband, I am also of the opinion that in view of the facts which had been explained by the petitioner/wife, definitely she is entitled to the relief as prayed for in the present transfer CMP.
12. Hence O.P. No. 41 of 2002 pending on the file of the Family Court, City Civil Court, Secunderabad is hereby withdrawn and transferred to be tried along with HMOP No. 179 of 2001 on the file of the Principal Subordinate Judge’s Court, Chengalput for the purpose of disposal in accordance with law.
13. Accordingly, the transfer CMP is ordered, but, however, in the facts and circumstances of the case this Court makes no order as to costs.