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2009 DIGILAW 836 (GAU)

Gayatri Devi Prashad v. Sanjay Prashad

2009-11-27

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT B.P. Katakey, J. 1. Heard Mr. Inam Uddin, learned Counsel for the Petitioner as well as Mr. Dhar, learned Counsel appearing on behalf of the Respondent, in Transfer Petition (Civil) No. 19/2009, who is the Petitioner in Transfer Petition (Crl.) No. 23/2009. 2. The Defendant/wife in Title Suit (D) No. 9/2009, pending in the Court of the learned District Judge, Nagaon, instituted by the husband, has prayed for transfer of the said proceeding to the Court of the learned District Judge, Tinsukia in which place the proceeding under Section 125 Code of Criminal Procedure is pending. The husband has filed Transfer Petition (Crl.) No. 23/2009 seeking transfer of the application under Section 125 Code of Criminal Procedure filed by the wife registered as Case No. 16 (Maintenance)/2009 and presently pending in the Court of the learned Chief Judicial Magistrate, Tinsukia to any other place convenient to both the parties. Since both these applications are filed by the husband and wife seeking transfer of the proceeding instituted by the other party, both are taken up together for hearing and disposal. 3. The Applicant in Transfer Petition (Civil) No. 19/2009, who is the wife of the Respondent in the said transfer petition, instituted a proceeding under Section 125 Code of Criminal Procedure, in the Court of the learned Chief Judicial Magistrate, Tinsukia being Case No. 16(Maintenance)/2009 and the said proceeding has been contested by the Respondent/husband. The Respondent/ husband also filed a suit praying for a decree of dissolution of marriage in the Court of the learned District Judge, Nagaon, which has been registered as Title Suit (D) No. 9/2009. 4. The Respondent/husband has filed the application being Transfer Petition (Crl.) No. 23/2009 seeking transfer of the proceeding under Section 125 Code of Criminal Procedure to any other Court convenient to both of the parties. The wife has also filed an application being Transfer Petition (Civil) No. 19/2009 for transfer of the divorce proceeding from the Court of the learned District Judge, Nagaon to the Court of the learned District Judge, Tinsukia so that both the proceedings can be taken up at the same station and also on the ground that the wife has no independent source of income and has to depend upon the earning of her poor father who earns Rs. 2,500/- to Rs. 2,500/- to Rs. 3,000/- per month for which it is not possible on her part to go to Nagaon from Tinsukia to contest the divorce proceeding instituted by the husband. It has further been contended that there is no other adult member in the family to accompany her from Tinsukia to Nagaon and for conducting the case at Nagaon she has to stay at least for one night at Nagaon. 5. The ground on which the Transfer Petition (Crl.) No. 63/2009 has been filed by the husband is that he being an employee in the shop of his father and paid a monthly salary of Rs. 3,500/-, because of his financial condition it is not possible to contest the proceeding at Tinsukia by incurring heavy expenditure. 6. Section 407 of the Code of Criminal Procedure empowers the High Court to transfer a proceeding from one sessions division to another sessions division in the event the Court is of the opinion that a fair and impartial inquiry or trial cannot be had in any criminal Court subordinate thereto, so that some questions of law of unusual difficulty is likely to arise or that an order under Section 407 Code of Criminal Procedure is required by any provision of this Code or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice. 7. In the instant case, as noticed above, the only ground on which the husband has filed the application under Section 407 Code of Criminal Procedure for transfer of the 125 Code of Criminal Procedure proceeding is that he being engaged as an employee by the father and being paid Rs. 3,500/- per month it is not possible on his part to contest the proceeding at Tinsukia. 8. It is not in dispute that very good cheap train service from Lumding to Tinsukia, is available, travelling cost for which is less than the fare normally charged by the buses. That apart if the proceeding is transferred out of Tinsukia it would cause more inconvenience to the wife who is presently staying with her poor father, who is a cultivator and having a monthly income of Rs. 3,500/-. Hence, the prayer made by the husband for transfer of the 125 Code of Criminal Procedure proceeding cannot be allowed. 9. The Transfer Petition (Crl.) No. 23/2009, therefore, stands rejected. 10. 3,500/-. Hence, the prayer made by the husband for transfer of the 125 Code of Criminal Procedure proceeding cannot be allowed. 9. The Transfer Petition (Crl.) No. 23/2009, therefore, stands rejected. 10. In Transfer Petition (Civil) No. 19/ 2009, as noticed above, the wife has prayed for transfer of the divorce proceeding from Nagaon to Tinsukia on the ground of inconvenience. 11. It appears from the statements made in the application that the wife is residing with her father who is a poor cultivator and she has no independent source of income and also there is no other adult member in the family to accompany her from Tinsukia to contest the proceeding at Nagaon and she is to stay at least for one night at Nagaon to contest the divorce proceeding instituted by the husband. On the other hand the husband having already entered appearance and contested the 125 Code of Criminal Procedure proceeding which is pending in the Court of Tinsukia, no inconvenience would be caused to the husband if the divorce proceeding is transferred from Nagaon to Tinsukia. 12. Keeping in view the aforesaid position, the proceeding in Title Suit (D) No. 9/2009 presently pending in the Court of the learned District Judge, Nagaon is transferred to the Court of the learned District Judge, Tinsukia 13. The learned District Judge, Nagaon shall forthwith transmit the records of the Title Suit (D) No. 9/2009 to the Court of the learned District Judge, Tinsukia so as to reach the said Court on or before 11.12.2009. 14. The parties are directed to appear before the learned District Judge, Tinsukia on 14.12.2009. The learned District Judge as well as the learned Chief Judicial Magistrate shall fix the cases so that both the cases are taken up on consecutive days. 15. Transfer Petition (Crl.) No. 23/2009 stands rejected and Transfer Petition (Civil) No. 19/2009 stands allowed. Petition allowed