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2016 DIGILAW 338 (RAJ)

Sunita v. Lokesh Kumar

2016-02-29

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerender Singh Siradhana, J. 1. The above-noted two Transfer Applications have been instituted on behalf of the applicant-wife (Smt. Sunita), with a prayer for transfer of the proceedings instituted by the non-applicant-husband before the Family Court, Dungarpur, to the Family Court, Sikar. One for setting aside the ex-parte divorce decree dated 22nd March, 2013, and the other for custody of the minor son born out of the wedlock. On institution of the transfer applications, notices were issued to the non-applicant-husband on 4th March, 2015 and 4th December, 2015. Since, service could not be effected, notices through the Registered Post A.D., were issued on 12th January, 2016 in Transfer Application (23/2015), which have been received back unserved with the report 'refused to receive the notices'. In the other Transfer Application, the notices issued through Ordinary Post as well as Registered Post, have also been received unserved with the report that 'concerning person was not found and his father refused to receive the notices'. 2. Learned counsel for the applicant-wife contended that the non-applicant-husband is deliberately and intentionally avoiding service of the notice after having secured an ex-parte divorce decree. It is further submitted that four proceedings, instituted by the applicant-wife, are pending before the various Courts in District Sikar. It is also pointed out that the applicant-wife apprehending that the non-applicant-husband may abscond; she requested the Chief Judicial Magistrate, Sikar, to seize his passport and thereupon, a communication was addressed to that effect on 4th June, 2012, to the Superintendent of Police, Dungarpur, to seize his passport, in case he attempted to leave the country. S.B. Criminal Misc. Petition Number 2626/2014 (Lokesh v. State), assailing the proceedings with reference to seizer of passport, was dismissed as withdrawn while allowing the prayer for conclusion of the trial within the specified time frame. 3. Referring to Section 13 of the Family Court Act, 1984; learned counsel pointed out that no party to a suit or proceeding before a Family Court shall not be entitled, as of right, to be represented by a legal practitioner with the exception that the Family Court may seek the assistance of a legal expert as amicus curiae, if considered necessary. But the non-applicant-husband in the facts aforesaid has device a new mechanism of pursuing the proceedings before the Family Court, Dungarpur, through his father and, is thus, avoiding the service. But the non-applicant-husband in the facts aforesaid has device a new mechanism of pursuing the proceedings before the Family Court, Dungarpur, through his father and, is thus, avoiding the service. Moreover, father of the non-applicant-husband, who is pursuing the proceedings before the Family Court, Dungarpur, has also declined to accept notice, as would be evident from the report made by the Process Server in Transfer Application (146/2015). Since the applicant-wife has also instituted a Suit (31/2011), with a prayer to restrain the non-applicant-husband to entertain into another wedlock, it appears that the non-applicant-husband is playing game of 'hide and seek' in the judicial process. 4. According to the learned counsel, a minor son born out of the wedlock is residing with the applicant-wife and she is staying with her parents in District Sikar totally depending upon them as she has no source for her livelihood from any quarter. It is further submitted that distance between Sikar to Dungapur are about 650 km. In order to sustain his claim, learned counsel has placed reliance on the opinion of the Hon'ble Supreme Court in the case of Simi Mehrotra v. Anil Mehrotra, (2002) 10 SCC 70 . 5. I have heard the learned counsel for the applicant-wife and with his assistance, perused the materials available on record as well as gave my thoughtful consideration to the submissions at Bar. 6. From the materials available on RECORD, it is evident that the notices issued on Transfer Application (23/2015), have been received back with a note of 'refusal to accept notice', sent through, the Registered Post. In the other Transfer Application (146/2015), the non-applicant-husband was not found at the place of residence and the concerned person i.e. father of the non-applicant-respondent declined to accept notices while representing his son (non-applicant-husband), before the Family Court in the proceedings, which are prayed to be transferred to the Family Court, Sikar. 7. From the details furnished in Transfer Application (23/2015), the following matters are pending at District Sikar:- "(i) Criminal Case No. 411/2011 State v. Tilsiram/Lokesh Kumar, u/s. 498-A, 406 IPC pending before the Court of Chief Judicial Magistrate, Sikar. (ii) Criminal Complaint No. 279/2010 Sunita v. Lokesh, u/s. 18, 19, 20, 22, 23 of the Domestic Violence Act pending before the Court of Additional Chief Judicial Magistrate, Sikar. (iii) Maintenance Application u/s. 125 Cr.P.C. titled as Sunit v. Lokesh, pending before the Family Court at Sikar. (ii) Criminal Complaint No. 279/2010 Sunita v. Lokesh, u/s. 18, 19, 20, 22, 23 of the Domestic Violence Act pending before the Court of Additional Chief Judicial Magistrate, Sikar. (iii) Maintenance Application u/s. 125 Cr.P.C. titled as Sunit v. Lokesh, pending before the Family Court at Sikar. (iv) Suit No. 31/11 titled as Sunita v. Lokesh, pending before the Court of Additional Civil Judge (J.D.), No. 1, Sikar." 8. As pointed out by the learned counsel and is also apparent from the materials available on record, since the non-applicant-husband did not deposit his passport, which was ordered to be seized while unsuccessfully challenging the proceedings before the High Court in S.B. Criminal Misc. Petition aforesaid and at the same time, refusal to accept the notices himself so also by his father, who is pursuing the proceedings before the Family Court, Dungarpur, which are prayed to be transferred to the Family Court, Sikar; has some substance. 9. In the matters of matrimonial proceedings, it is the convenience of the wife, which is to be considered and given preference over that of the husband, as has been observed by the Hon'ble Apex Court of the land in a catena of judgments. 10. Keeping in view the object underlying the establishment of Family Courts under the Family Court Act, 1984, which is a special legislation for the purpose of resolution of the matrimonial disputes in accordance with the procedure provided therein. The approach adopted for the purpose of resolution of the matrimonial disputes is radically different from that adopted in ordinary civil proceedings. 11. In the case of Rajni Kishore Pardeshi us Kishor Babulal Pardeshi, 2005 (12) SC 237; the Hon'ble Supreme Court repelled the argument of the husband for transfer of the proceedings on the grounds of his inconvenience observing that in these type of matters, the convenience of the wife has to be preferred over the inconvenience of the husband. 12. Having considered the totality of the facts and circumstances of the case and the opinion of the Hon'ble Supreme Court as referred to above; both the Transfer Applications succeed and are hereby allowed. In the result, Criminal Application Number 01/2014 (Lokesh Kumar v. Smt. Sunita), pending in Ex-parte Divorce Petition Number 06/2011 as well as Misc. 12. Having considered the totality of the facts and circumstances of the case and the opinion of the Hon'ble Supreme Court as referred to above; both the Transfer Applications succeed and are hereby allowed. In the result, Criminal Application Number 01/2014 (Lokesh Kumar v. Smt. Sunita), pending in Ex-parte Divorce Petition Number 06/2011 as well as Misc. Application No. 21/2015 (Lokesh Kumar v. Smt. Sunita), under the Guardian & Wards Act; are ordered to be transferred from the Family Court, Dungarpur, to the Family Court, Sikar.