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2008 DIGILAW 793 (PAT)

Dinesh Kumar Chaudhary v. State of Bihar

2008-06-27

MADHAVENDRA SARAN

body2008
ORDER : Transfer petition (Cr. Misc. No. 44287 of 2007) has been filed by the petitioner - husband for transfer of a case pending in the Court of Principal Judge, Family Court, Sitamarhi, filed under Section 125 Cr.P.C. (in short as 'the Code') to the Court of Principal Judge, Family Court, Patna. 2. In the counter affidavit filed on behalf of opposite party no. 2- wife prayer has been made to transfer Complaint Case No. 2921 (C) of 2006 filed under Section 498A IPC from the Court of Chief Judicial Magistrate, Patna to the Court of Chief Judicial Magistrate, Sitamarhi for trial. 3. The case of the petitioner is that opposite party nos. 2 and 3 filed Misc. Case No. 79/07 under Section 125 Cr.P.C. before the Principal Judge, Family Court, Sitamarhi on 19.7.2007 to direct the petitioner-husband to pay maintenance amount in which she gave her present address of district Sitamarhi. It is further said that prior to filing of maintenance case, opposite party no. 2 had filed Complaint Case No. 2921 (C) of 2006 under Section 498A IPC giving her parents' address of Patna. She had also filed a case before the State Women's Commission on 11.9.2006 against her husband giving her address at Patna. In the said case the State Women's Commission issued notice to the petitioner pursuant to which he appeared before the Commission and after hearing both the parties necessary directions were issued. It is further said that prior to filing of the maintenance case, opposite party no. 2 had sworn two affidavits dated 13.1.2007 and 9.2.2007 giving her address at Patna i.e. of her parents home where she was residing permanently. It has been stated that filing of maintenance case at Sitamarhi by opposite party no. 2 is an attempt to pressurize the petitioner and thus it is expedient in the interest of justice that the maintenance case filed at Sitamarhi be transferred to the Court of Principal Judge, Family Court, at Patna for disposal. 4. In the counter affidavit it has been mentioned that opposite party no. 2 was living with her father at Patna and after retirement of her father, she shifted with her father to .Sitamarhi and is now permanently residing there with her father. 4. In the counter affidavit it has been mentioned that opposite party no. 2 was living with her father at Patna and after retirement of her father, she shifted with her father to .Sitamarhi and is now permanently residing there with her father. Prayer has been made for transfer of Complaint Case No. 2921 (C) of 2006 filed under Section 498A IPC from the Court of Chief Judicial Magistrate, Patna to the Court of Chief Judicial Magistrate, Sitamarhi. 5. The argument of learned counsel for the petitioner is that the case under Section 498A of the Penal Code was filed by the wife-opposite party no. 2 against the petitioner-husband on 13.10.2006 at Patna giving her residential address of Patna. The wife also filed a case before the State Women's Commission on 11.9.2006 in which also she gave her Patna address but surprisingly the maintenance case was filed at Sitamarhi on 11.7.2007 giving ner address of Sitamarhi. Further argument is that father of opposite party no. 2 has a Flat at Patna and the case has been filed at Sitamarhi just with a view to harass the husband-petitioner. Learned counsel thus submitted that the case pending at Sitamarhi for convenience of the parties be transferred to Patna and in support of his contention he placed reliance on a decision reported in AIR 2004 Supreme Court 2475 given in the case of Eluri Raji Reddy and Ors. vs. Eluri Manemma. 6. On the other hand, learned counsel appearing on behalf of opposite party no.2-wife submitted that her father was in service at Patna and therefore, after being driven out from the house by husband, opposite party no. 2 was living at Patna in her parents' house. Her father after retirement shifted to Sitamarhi and therefore, wife-opposite party no. 2 is now living at Sitamarhi with her parents. She has no independent source of income. He submitted that convenience of the lady has to be given weight and therefore, the case filed under Section 498A of the Penal Code be transferred to the place where she is residing. 7. It is admitted position that the marriage between the petitioner and opposite party no. 2 was performed at Patna. It is also admitted position that at the time of filing of the case under Section 498A of the Penal Code opposite party no. 2 was living at Patna in her parents' house. 7. It is admitted position that the marriage between the petitioner and opposite party no. 2 was performed at Patna. It is also admitted position that at the time of filing of the case under Section 498A of the Penal Code opposite party no. 2 was living at Patna in her parents' house. Now it is stand of the wife that after retirement from service her father has shifted to Sitamarhi and residing there. According to learned counsel for opposite party no. 2 the wife has no independent source of income and therefore, for her livelihood she is living with her parents at Sitamarhi. It is admitted position that the maintenance case at Sitamarhi has been filed by giving address of her parents. There is no legal bar that the case under Section 125 of the Code cannot be filed at Sitamarhi. The convenience of the lady to the case has to be preferred specially when she has no independent source of income. The decision' relied upon by learned counsel for the petitioner has no application in the present case because the facts involved there were quite different. In the present case the husband has not filed any case anywhere. The balance of convenience therefore, is in favour of the wife. 8. In the circumstances, the case filed by the wife under Section 498A of the Penal Code at Patna against her husband is fit to be transferred to Sitamarhi where she is living with her retired father. Accordingly prayer made by the wife in her counter affidavit is allowed and the Complaint Case No. 2921 (C) of 2006 filed by her before the Chief Judicial Magistrate, Patna is transferred to the District & Sessions Judge, Sitamarhi who shall send the same to the proper court for. hearing and disposal in accordance with law. 9. This application accordingly stands disposed of.