Judgment

( 1 ) LEAVE granted. The appellant married the respondent on 16-5-1999 in Mangalore. She lived with the respondent for about seven months after which she left for bangalore. According to the appellant she left because of the conduct of her husband and because her economic circumstances required that she should take up a job. She has since been employed in Bangalore.

( 2 ) ON 17-6-2002 the appellant filed a suit for restitution of conjugal rights in Bangalore. The respondent appeared and on 22-8-2003 conciliation proceedings were commenced between the parties. In the meanwhile, the respondent had already filed a suit in Mangalore against the appellant for divorce. The appellant made an application under Section 8 of the Divorce act, 1869 to the High Court of Karnataka for transfer of the respondents suit from Mangalore to Bangalore. The High Court rejected the application for transfer on the ground that Section 8 of the 1869 Act did not allow the High court to transfer a suit to any District Court not having territorial jurisdiction over the subject-matter of dispute. It is not in dispute that the parties had got married in Mangalore and had last resided together in Mangalore. The High court appears to have been moved by the fact that the Bangalore Court would not have the territorial jurisdiction to entertain the respondents suit. Being aggrieved the appellant has preferred this appeal.

( 3 ) WE are of the view that the High Court has erred in the construction of section 8 of the 1869 Act which provides as follows: "8. Extraordinary jurisdiction of High Court-The High Court may, whenever it thinks fit, remove and try and determine as a court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this Act. Power to transfer suits.-The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge. " it needs to be emphasised that the High Court is required to exercise its extraordinary jurisdiction under the section. The question is whether the phrase "any other such District Judge" occurring in the second portion of section 8 means any District Judge which would otherwise have jurisdiction to entertain the suit.

( 4 ) THE basis of the High Courts decision is the definition of the words "district Court and District Judge" in sub-sections (2) and (3) of Section 3 of the Act. These two sub-sections read as follows:

"3. (2) district Judge.-district Judge means a Judge of a Principal civil Court of original jurisdiction however designated: (3) district Court.--district Court means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act the marriage was solemnised or, the husband and wife reside or last resided together"

( 5 ) THE High Court appears to have overlooked the words with which section 3 begins, namely, "unless there be something repugnant in the subject or context". In the context of the extraordinary jurisdiction of the high Court it is clear that the word "district Judge" would mean what the definition expresses viz. any Judge which was a Principal Civil Court of original jurisdiction. The territorial limit in sub-section (3) is, as the sub-section itself denotes, only for the purpose of determining the ordinary jurisdiction for initiating proceedings under the Act.

( 6 ) IF the power of the High Court is to be construed as being limited to transfers within the territorial limitations of a District Judge, it would defeat the object and express purpose of Section 8 and render it virtually nugatory. The power to transfer a proceeding within the territorial limits of a District is exercisable even by a District Judge under Section 24 of the Code of Civil procedure. The intention behind Section 8 of the Act is to give the High c