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2011 DIGILAW 236 (GAU)

Gitima Das v. Jitendra Nath Das

2011-03-18

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Heard Ms. K. Deka learned Counsel for the Petitioner. Also heard Mr. B.M. Choudhury, learned Counsel appearing for the sole Respondent. 2. This application has been filed under Section 407 read with Section 482, Code of Criminal Procedure 1973 for transfer of Misc. Case No. 211m/2008 from the Court of Addl. CJM, Kamrup, Guwahati to the Court of learned Principal Judge, Family Court, Kamrup at Guwahati. The Petitioner/wife married the opposite party on 6.12.2001 Guwahati according to Hindu Rites and Rituals. Out of the said wed lock she gave birth to 3 daughters. The Petitioner alleges that the opposite party started inflicting both mental and physical torture upon her since 2001. The Petitioner claims that she is the absolute owner and possessor of a plot of land covered by Dag No. 1136/2118 of K.P. Patta No. 201/687 situated at village Japorigog under Beltola Mouza and one RCC Building was constructed over the said plot of land. The Petitioner along with the opposite party and their daughters are residing in one part of the Second Floor of the said building. The said building has been rented out to National P.G. College at the monthly rent of Rs. 50,000 only and both the Petitioner and her husband are the trusties of the said college. The opposite party used to look after the day today affairs activities including accounts and financial transactions of the College and he does not allow the Petitioner to interfere in any manner in the affairs of the college. The Petitioner should have been allowed to receive the monthly rental amount of Rs. 50,000 to the opposite party but he used to receive the whole rental amount without giving any share to her. The opposite party promised the Petitioner to give the money back to her but he did not do so and when the Petitioner asked for return of the money, the opposite party tortured her both mentally and physically. The Petitioner was compelled to institute a complaint case against her husband in the Court of CJM, Kamrup, Guwahati which was registered as Mice. Case No. 211m/2008 under Section 12 of the Protection of Women From Domestic Violence Act, 2005. The opposite party contested the case by filling written statement and the case was fixed for evidence in the Court of learned Addl. CJM, Kamrup, Guwahati. 3. Case No. 211m/2008 under Section 12 of the Protection of Women From Domestic Violence Act, 2005. The opposite party contested the case by filling written statement and the case was fixed for evidence in the Court of learned Addl. CJM, Kamrup, Guwahati. 3. The Petitioner also filed a divorce suit on 1.8.2009 with a maintenance case under Section 125, Code of Criminal Procedure against the opposite party in the court of learned Principal Judge, Family Court, Kamrup, Guwahati which has been registered as FC(Civil)/431/2009 and FC (Crl.) case No. 410/2009 respectively. The opposite party is contesting the said case by filing written statement. The maintenance case, FC (Crl.) No. 410/2009 was disposed of vide order dated 25.11.2010 passed by the learned Principal Judge, Family Court, Kamrup, Guwahati. As agreed by both the parties, the opposite party was directed to pay to the Petitioner Rs. 15,000 per month as maintenance to herself and her daughters, the divorce suit is still pending for disposal in the Family Court. 4. The Petitioner is seeking transfer of the Misc. Case No. 211m/2008 pending before the learned Addl. CJM, Kamrup, Guwahati to the learned Family Court, Kamrup, Guwahati for her convenience inasmuch as, she is finding it very difficult to contest the said cases in different courts. Ms. Deka, learned Counsel for the Petitioner submits that transfer of Miscellaneous Case aforesaid to the court of learned Family court would help expeditious hearing and disposal of both the matters and there should not be any objection from the side of the opposite party in this regard. No written objection has been filed by the opposite party in this case. However, Mr. Choudhury, learned Counsel appearing for the opposite party submits that there is a legal bar on entertaining the petition by the Family court under the "Protection of Women from Domestic Violence Act, 2005" (2005 Act). In this regard he has taken me through the provisions under Section 12 of the 2005 Act. 5. For the purpose of disposal of this petition, first of all certain admitted position should be taken note of. Both the Courts of Addl. CJM and the Family Court to which the miscellaneous application is proposed to be transferred, are located at Guwahati and the distance between both the courts would be hardly one and half kilometers. The Petitioner is residing at Dispur, Guwahati. Both the Courts of Addl. CJM and the Family Court to which the miscellaneous application is proposed to be transferred, are located at Guwahati and the distance between both the courts would be hardly one and half kilometers. The Petitioner is residing at Dispur, Guwahati. The distance between her residence and the Court of Addl. CJM, Kamrup, Guwahati would be around 10 kilometres and the distance between her residence and Family Court would be around 12 kilometres. In her petition, the Petitioner has not described/explained her inconvenience difficulties she is facing in contesting the aforesaid cases which are located in Guwahati itself. It must be borne in mind that it is the Petitioner who herself instituted both the divorce case as well as the petition for protection under the aforesaid 2005 Act. The fora were chosen by herself for her own convenience. It is not easily acceptable at this stage that she is facing inconvenience in proceeding with the said cases. Had one of the cases been tried by a forum located out side Guwahati or had she been living at another place out side Guwahati after filing the aforesaid cases for some reason, her prayer for transfer of one of the cases would have been easily acceptable. There is no bona fide reason for seeking transfer of Miscellaneous Application pending before the learned Addl. CJM to the Family Court at Guwahati. 6. The Protection of Women from Domestic Violence Act, 2005 provides detailed procedure for obtaining orders of relief(s). Section 12(1) of the aforesaid Act provides that an aggrieved person or a protection officer or any other on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act and such application shall be taken into consideration only after receipt of report on domestic incident from the Protection Officer or the service provider. The applicant may ask for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the accused of domestic violence committed by the Respondent. Under Section12(5) it is mandated that Magistrate shall make endeavour to dispose of every application made under Sub-section (1) of Section 12 within a period of 60 days from the date of first hearing. Under Section12(5) it is mandated that Magistrate shall make endeavour to dispose of every application made under Sub-section (1) of Section 12 within a period of 60 days from the date of first hearing. It implies that the proceeding under the 2005 Act should be disposed of with utmost priority and it should not be allowed to be continued for a long period like other cases. The proceeding for divorce is not expected to be completed within such a short period of 60 days as prescribed under the 2005 Act. It is a common experience that divorce proceedings continues for years. The object of enactment of 2005 Act is to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. In my considered view the Court of Addl. CJM is the right forum and the aforesaid miscellaneous case has been filed by the Petitioner before the right forum for early disposal of the same as required under the 2005 Act for the interest of the parties and if the same miscellaneous case is transferred to the Family Court, it would go against the interest of the Petitioner inasmuch as the protection and relief(s) she is seeking for would be delayed. 7. For the aforesaid discussion and reasoning, I could not persuade myself to agree with the submissions of the learned Counsel for the Petitioner for transferring the miscellaneous case aforesaid to the learned Principal Judge, Family Court, Kamrup, Guwahati. 8. The petition is found to be without any merit and the same is liable to be dismissed. Accordingly I dismiss this petition without any order as to costs. Petition dismissed.