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2015 DIGILAW 1502 (HP)

Rajiv Sharma v. Ishika Sharma Minor

2015-10-14

P.S.RANA

body2015
ORDER: P.S.Rana, J. Present petition is filed under Section 407 Code of Criminal Procedure for transfer of criminal case No. 7 of 2014 titled Ms. Ishika Sharma Vs. Rajiv Sharma pending in the Court of learned Judicial Magistrate Ist Class Dharamshala to the Court of learned Chief Judicial Magistrate Hamirpur or any other Courts situated at Hamirpur H.P. BRIEF FACTS OF THE CASE: 2. Ms. Ishika Sharma age 9 years daughter of Sh. Rajeev Sharma minor through her mother Smt. Anita Sharma mother filed petition under Section 125 Cr.PC for grant of maintenance allowance to minor child Ms Ishika to the tune of Rs.5000/- (Five thousand) per month. It is pleaded that date of birth of Ms Ishika minor is 24.06.2005 and at present minor Ishika is living with her mother. It is pleaded that non-petitioner Rajeev Sharma has divorced his wife Smt. Anita Sharma. It is pleaded that divorce took place with the consent between Smt. Anita Sharma and Sh. Rajiv Sharma. It is further pleaded that non-petitioner agreed that minor daughter will live with her mother. It is further pleaded that non-petitioner also agreed that non-petitioner would pay a lump-sum amount of maintenance to minor daughter to the tune of Rs.500000/- (Five lacs). It is further pleaded that non-petitioner also assured that he would participate and bear the expenses of the marriage of Ms. Ishika. It is further pleaded that non-petitioner backed out from his promise and did not pay amount of maintenance to minor Ishika. It is further pleaded that minor Ishika is unable to maintain herself and she has no independent source of income. It is further pleaded that minor is school going child. It is further pleaded that minor Ishika is a student of 5th class in DAV public school and her monthly education charges are Rs.2280/- (Two thousand two hundred eighty). It is further pleaded that non-petitioner is able bodied person and is running electronic shop and also running restaurant of fast food at Sujanpur and earns a net income of Rs.20000/- (Twenty thousand) per month. It is further pleaded that petitioner also having three more shops in the main bazaar at Sujanpur rented out at the rate of Rs.4500/- (Four thousand five hundred) per month. 3. Ms. Ishika Sharma has filed response to the petition filed under Section 407 of the Code of Criminal Procedure. 4. It is further pleaded that petitioner also having three more shops in the main bazaar at Sujanpur rented out at the rate of Rs.4500/- (Four thousand five hundred) per month. 3. Ms. Ishika Sharma has filed response to the petition filed under Section 407 of the Code of Criminal Procedure. 4. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of non-petitioner. 5. Following points arise for determination in the present petition: 1. Whether petition filed under Section 125 Cr.PC by minor Ishika Sharma aged 9 years titled Ms. Ishika Sharma Vs. Rajeev Sharma is liable to be transferred from Court of learned Judicial Magistrate Ist Class Dharamshala District Kangra HP to learned Chief Judicial Magistrate Hamirpur or any other criminal Courts situated at Hamirpur as alleged in memorandum of grounds of transfer petition filed under Section 407 Cr. PC? 2. Final order. Finding upon point No.1 with reasons. 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner is very poor person and he has no source of income to bear litigation expenses as petitioner has only income of Rs.22000/- (Twenty two thousand) per annum from all sources and it is very difficult for the petitioner to attend the hearing of present case at Dharamshala is rejected being devoid of any force for the reasons hereinafter mentioned. Minor daughter of petitioner Ms Ishika Sharma has filed petition under Section 125 Cr.PC against the petitioner for grant of maintenance allowance. It is well settled law that Courts are under legal obligation to protect the interest of minor. In the present case minor is residing with her mother in the house of Subhash Chand resident of village Bhatechh Tehsil Shahpur District Kangra HP. Keeping in view the fact that petition has been filed by minor Ishika Sharma aged 9 years who is daughter of petitioner for maintenance of allowance and keeping in view the welfare of the minor into consideration court is of the opinion that it is not expedient in the ends of justice to transfer the maintenance case filed by minor Ishika Sharma from District Kangra to District Hamirpur H.P. 7. Another submission of learned Advocate appearing on behalf of petitioner that petitioner Rajiv Sharma has already filed two more petitions one under Section 494 IPC against his wife on the ground that she has contracted second marriage during subsisting of her marriage and second petition for the custody of Ms. Ishika Sharma in the respective Courts situated at Hamirpur and on this ground present petition filed by petitioner be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that two petitions have been filed by petitioner against his wife Smt. Anita Sharma. Petition filed under Section 125 Cr.PC is not filed by Smt. Anita Sharma but same is filed by Ms. Ishika Sharma. It is well settled law that minor has legal right to file independent maintenance petition before competent Court of law. Keeping in view the fact that Ms. Ishika Sharma is a minor aged 9 years Court is of the opinion that it is not expedient in the ends of justice to transfer maintenance petition filed under Section 125 Cr.PC by Ishika Sharma from District Court Dharamshala to District Court Hamirpur because there is long distance between Dharamshala and Hamirpur and same will cause inconvenience to minor Ms. Ishika Sharma. It is well settled law that case is to be transferred from one Court to another Court when there is reasonable apprehension in the mind of party that justice would not be done. In the present case there is no allegation against the Presiding Officer at Dharamshala. It is well settled law that in cases relating to minor paramount consideration of court is the welfare of minor only. See 1992 (2) SLC 17 titled Smt. Kamlesh Tyagi and another Vs. State of H.P and others. Keeping in view above stated facts and keeping in view the welfare of the minor child aged 9 years point No.1 is decided in negative against petitioner. Point No.2 Final order. 8. In view of finding on point No.1 petition filed for transfer of case under Section 407 Cr. PC is dismissed. Observation made hereinabove is strictly for the purpose of deciding the present petition and shall not effect merits of the case in any manner. Petition filed under Section 407 Code of criminal procedure is disposed of. All pending application(s) if any also disposed of.