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R.K. Shukla, J.—List is revised. No one is present to press this application on behalf of the applicant. The case was adjourned and was taken up after lunch again. Counsel for the applicant is still not present. Sri. A.S. Kapoor, learned Counsel for the opposite party is present. No rejoinder affidavit has been filed in this case inspite of time being given on 14.8.1985 and 23.2.1987.
By this Criminal Misc. Transfer Application Smt. Ram Kumari alias Polo has prayed for transfer of the case No. 57 of 1983 (Subhash Chandra Gupta v. Smt. Ram Kumari) pending in the Court of the Civil Judge, Jaunpur and Appeal No. 233 of 1983 (Subhash Chandra Gupta v. Smt. Ram Kumari) pending in the Court of the District Judge Jaunpur to district Ghazipur.
It is clearly mentioned in paragraph 8 of the affidavit that opposite party No. 2, Subhash Chandra Gupta filed a suit for restitution of conjugal right and judicial separation before the Court of the Civil Judge, Jaunpur on 7.7.1983. The case was numbered as Case No. 57 of 1983 (Subhash Chandra Gupta v. Smt. Ram Kumari). This suit was pending in the Court of the Civil Judge, Jaunpur. Thereafter the applicant Smt. Ham Kumari moved an application u/s 24 of the Hindu Marriage Act (hereinafter referred as the Act) for granting expenses, before the Civil Judge, Jaunpur. The learned Civil Judge, Jaunpur granted expenses vide his order dated 28.9.1983. Against the said order the opposite party No. 2, Subhash Chandra Gupta preferred an appeal before the District Judge, Jaunpur, which was numbered as Appeal No. 233 of 1983 (Subhash Chandra Gupta v. Smt. Ram Kumari). According to the provisions of Hindu Marriage Act the right to file a suit for restitution of conjugal rights is given u/s 9 of the Act. Section 10 of the Act makes a provision for filing a suit for judicial separation. Jurisdiction and procedure for such suit is given u/s 19 of the Act, which reads as under:
Court to which petition should be made-Every petition under the Act shall be presented to the district Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together.
Section 24 of the CPC provides general power of transfer and withdrawal of cases of civil nature. Section 21 of the Hindu Marriage Act provides that all the proceedings under the Hindu Marriage Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. In view of this provision this transfer application is not maintainable u/s 407 Code of Criminal Procedure It appears that inadvertently this application was admitted u/s 407 Code of Criminal Procedure.
After careful scrutiny of the material on the record, I am fully satisfied that this transfer application is not maintainable u/s 407 Code of Criminal Procedure Consequently it deserves dismissal.
In the result this application fails and is dismissed The stay granted by this Court on 8.3.1984 is vacated.