The Rajasthan High Court has clarified that Family Courts do not possess the jurisdiction to transfer cases from one Family Court to another, even within the same district. A Division Bench comprising Justice Sudesh Bansal and Justice Anil Kumar Upman ruled that the general power of transfer under Section 24 of the Code of Civil Procedure (CPC) is vested exclusively in the High Court or the District Court.
The Court further held that a previous Single Bench order from 2017, which suggested Family Courts could suo motu transfer cases, was per incuriam and not a binding precedent.
Background
The issue arose from a Civil Reference under Section 113 of the CPC. The Judge of Family Court No. 1, Bharatpur, had transferred four matrimonial cases to Family Court No. 2, Bharatpur, on December 6, 2025. In doing so, the judge relied on a “general view” expressed by a Single Judge of the Rajasthan High Court in the 2017 case of Shantanu Agarwal vs. Anubha Jain.
However, the Judge of Family Court No. 2, Bharatpur, opined that this exercise of power appeared to conflict with Section 24 of the CPC, which typically reserves transfer powers for higher courts. Consequently, a reference was made to the High Court for guidance.
Arguments of the Parties
The High Court invited members of the Bar to assist as Amicus Curiae. Two distinct viewpoints emerged during the arguments:
- Support for Family Court’s Power: One group argued that since Family Courts exercise exclusive jurisdiction over matters previously handled by District Courts (under Section 7 of the Family Courts Act), they should also inherit the power to transfer cases within the same district to ensure administrative efficiency and avoid burdening the High Court.
- Opposition to Family Court’s Power: The second group contended that Section 24 of the CPC explicitly vests transfer powers only in the High Court or the District Court. They pointed out that Family Courts are governed by special statutes that do not explicitly grant them transfer powers. They also noted that in Rajasthan, all Family Court judges hold the same rank, and no “Principal Judge” has been empowered to transfer cases between “Additional Principal Judges” as contemplated under Section 4 of the Family Courts Act.
Court’s Analysis
The Division Bench analyzed Section 7 of the Family Courts Act, 1984, and Section 24 of the CPC. The Court observed that while Section 7(1)(b) deems a Family Court to be a “District Court” for the purpose of exercising jurisdiction over specific matrimonial suits, this does not extend to administrative or general powers of transfer.
The Court noted:
“The judicial power of transfer envisaged to the High Court or to the District Court, by virtue of Section 24 CPC… is a distinct, exclusive and independent power, which even may not be delegated nor can be assumed to be vested in the Family Court.”
Addressing the 2017 Single Bench order in Shantanu Agarwal, the Division Bench remarked that the Single Judge had “skipped to consider” that one Family Court is not subordinate to another Family Court in the same city. The Bench stated:
“The view expounded by learned Single Judge in the order dated 24.04.2017… can be held per incuriam and is not a binding judicial precedent, hence, need not to be followed by the Family Courts.”
The Court emphasized that specific provisions of a special statute (The Family Courts Act) prevail over general provisions, and since the special statute does not confer transfer powers, the courts cannot “legislate” such powers into existence through judicial interpretation.
Decision
The High Court answered the reference with the following conclusions:
- No Power to Transfer: Family Courts lack the jurisdiction to transfer cases from one Family Court to another, even within the same district.
- Exclusivity of Higher Courts: The power under Section 24 CPC remains solely with the District Court or the High Court.
- Order Declared Non-est: The Bharatpur Family Court’s transfer order dated December 6, 2025, was declared “non-est” (legally non-existent) as it was passed without jurisdiction.
The Registry was directed to circulate this order to all Family Courts in the State of Rajasthan to ensure uniformity in practice.
Case Details Block
- Case Title: Hema vs. Mohit Bhardwaj
- Case No.: D.B. Civil Reference No. 1/2026
- Bench: Justice Sudesh Bansal and Justice Anil Kumar Upman
- Date of Order: February 24, 2026
