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2016 DIGILAW 662 (ORI)

Lopamudra Patnaik v. Manas Patnaik

2016-08-22

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. By filing this writ petition, the petitioner has made a prayer for transferring the MAT Case No.39 of 2016 from the Court of learned Civil Judge (Sr. Divn.), Koraput to the Family Court, Puri. 2. Short background involved in this case is that the relationship in between the petitioner and the opposite party is wife and husband. For dissension and difference in their life, the husband at the first instance filed a Matrimonial Case bearing No.112 of 2014 in the court of civil Judge (Sr. Divn.), Koraput seeking restitution of conjugal rights against the wife and at the second instance the opposite party-husband also filed another Matrimonial Case bearing No.39 of 2016 before the Court of learned Civil Judge (Sr. Divn.), Koraput seeking a decree of divorce against the wife. In seeking transfer of the case, learned counsel for the wife contended that after institution of a case between the parties at the instance of the husband for restitution of the conjugal right, an application for transfer of the case was moved to this Court vide TRP (C) 201/2014 seeking transfer of the case on the premises of differences between the husband and wife, the wife had started residing at Puri. She being unemployed and it was thus difficult on her part not only to meet her travelling expenses to such a long distance but also unable to provide fees for engaging a counsel at such a distance. Looking to the convenience of the parties, this Court while disposing the TRP (C) 201/2014 referring to a reported decision as reported in AIR 2002 (SC) 396 , directed for transferring the Matrimonial Case No.112 of 2014 to the Court of learned Judge, Family Court, Puri. Learned counsel for the petitioner further submitted that since one of the proceedings has already been transferred to Puri on the premises that the petitioner is residing at Puri presently and also looking to the expenses and fees factor, this case needs to be transferred to Puri. Learned counsel for the petitioner further submitted that looking to the cause title involved in M.C. No.39/2016, the husband himself has given the address of the wife to be at Puri as clearly appearing from Annexure-1 at page 8 of the TRP petition. Learned counsel for the petitioner further submitted that looking to the cause title involved in M.C. No.39/2016, the husband himself has given the address of the wife to be at Puri as clearly appearing from Annexure-1 at page 8 of the TRP petition. Thus, on the premises of existence of an order of this Court for transferring one of the Matrimonial Case between the same parties from Koraput to Puri and further on the premises that there is no dispute with regard to the resident of wife presently at Puri, learned counsel for the petitioner submitted that he has a case for transfer and further since both the matters are interlinked and in between the common parties, in the interest of justice, both the matters should also be heard together at one place. To substantiate his case, learned counsel for the petitioner relied on two decisions reported vide AIR 2002 (SC) 396 and Vol.116 (2013) CLT 1. 3. Per contra, learned counsel for the opposite party-husband does not dispute to the fact that there is already an order passed by this Court in TRP (C) No.201 of 2014 between the selfsame parties for transferring the case vide M.C. No.112 of 2014 from Koraput to Puri and further even though there is no dispute to the fact that the wife is not only a resident of Puri presently but the opposite party himself has also given her address at Puri in the case instituted vide M.C. No.39 of 2016 and the notice had also been issued in her address at Puri. But contesting the request made by the wife, in referring to his averments made in paragraph Nos.4 & 5 of the counter affidavit, Sri Panigrahi, learned counsel for the opposite party contended that the attempt of the wife is intentional and deliberate in order to harass the husband and that in the event, the case is transferred to Puri, there would be likely hood of danger to his life. Further, in substantiating his claim and opposing the claim for transfer of the case to Puir, learned counsel for the opposite party also cited the following decisions: (1) 2006 (1) OLR(SC) 456 a case in between Kamaljit Kaur Vs. Prince Singh Chhabra (2) (2004) 13 SCC 686 a case in between Pratibha Khemka Vs. Sanjay Kumar Khemka (3) 2014(II) OLR 78 a case in between Banita Das Vs. Akshaya Ku. Prince Singh Chhabra (2) (2004) 13 SCC 686 a case in between Pratibha Khemka Vs. Sanjay Kumar Khemka (3) 2014(II) OLR 78 a case in between Banita Das Vs. Akshaya Ku. Mallick and a decision of this Court in TRP(C) No.9 of 2015 decided on 28.8.2015 an unreported decision of this Court. In referring to certain paragraphs of the judgment referred to hereinabove, learned counsel for the opposite party submitted that in view of the observations and the directions contained therein, the decisions of the Apex Court reported in AIR 2002 (SC) 396 has been diluted and cannot be relied any further. 4. Considering the rival contentions and looking to the pleadings of the parties, this Court finds there is no denial to the fact that the petitioner and the opposite party are husband and wife. The husband has already initiated two Matrimonial proceedings vide M.C. No.112 of 2014 and M.C. No.39/2016 for restitution of conjugal right as well as decree for divorce respectively. There is also no denial to the fact that at the first instance, this Court in taking into note that the wife is already a resident of Puri, allowed the TRP(C) No.201 of 2014 by issuing a direction for transferring the Matrimonial Case No.112 of 2014 from Civil Judge (Sr. Divn.), Koraput to Judge, Family Court, Puri. Further there is also no dispute in between the parties with regard to the fact that the wife is presently a resident of Puri and that the notice in the 2nd Matrimonial proceeding has been served at Puri. Further, on perusal of the order-sheet of the case, this Court finds immediately after receipt of the notice involving the Matrimonial Proceeding vide M.C. 39 of 2016, this TRP application has been filed on 14.3.2016 and this Court while entertaining the application and finding a prima facie case, has already granted an interim order staying further proceeding of the MAT Case No. No.39 of 2016 pending in the Court of learned Civil Judge (Sr. Divn.), Koraput till the next date. Consequently, the proceeding pending in the file of Civil Judge (Sr. Divn.), Koraput is suspended till now. 5. Divn.), Koraput till the next date. Consequently, the proceeding pending in the file of Civil Judge (Sr. Divn.), Koraput is suspended till now. 5. Considering the factual scenario and position of the respective parties particularly keeping in mind that the wife is presently residing at Puri and her such address is very much available with the husband, for which he himself has shown the address of the wife to be at Puri in the subsequent proceeding presently dealt with and further for transfer of the proceeding vide M.C. No.112 of 2014 to the Court of Judge, Family Court, Puri and considering that both the cases are interlinked and having a common set of fact, this Court finds there cannot be any inconvenience to the husband in facing both the proceedings together at Puri. Looking to the objection of the husband in the counter affidavit to the effect that the intention the wife for asking for transfer of the case to Puri is only to harass the present opposite party, this Court finds that this allegation of the husband remains unfounded. Further looking to the allegation made in para-5 of the counter affidavit that in the event the case is transferred to Puri, the husband is apprehending danger to his life, this Court observes that the husband has contested the previous proceeding TRP (C) No.201 of 2014 and it is only after considering his submission a previous Bench of this Court in accepting the contention of the petitioner has directed for transferring of the matter. This order has also not been challenged. Thus, the allegation of threat to the life of the husband presently made, having not been raised during consideration of the case vide TRP(C) No.201 of 2014 and in absence of any material to support the complaint of the opposite party with regard to threat to his life, this Court observes this is just a development by the husband in the present proceeding to somehow or other to prevent the case from being transferred. 8. 8. Coming to consider the decisions cited by both the parties, this Court finds the observation made by the Hon’ble Apex Court in the case as reported in AIR 2002 (SC) 396 is clear that in such matters the convenience of the wife has to be kept in mind but then the case was not decided only on the basis of convenience of the wife but also taking into consideration the circumstances involved therein. This Court finds the decision has a great support to the case of the petitioner. Similarly, looking to the decision reported in Vol. 116 (2013) CLT 1 this Court finds the decision taken therein also support to the case of the petitioner. 9. From the citation cited at the instance of the opposite party vide (2004) 13 SCC 686 , this Court finds the case was based on a proven allegation on apprehension on life, from the case at hand, this Court has already observed that the allegation of apprehension to the life of the husband having no material to support it is just a case made out to block the transfer of the case somehow or other. Consequently, the decision reported in (2004) 13 SCC 686 is not applicable to the present case. From the citation vide 2006 (1) OLR(SC) 456, this Court finds this case was decided by the Hon’ble Apex Court refusing the request for transferring the matter on the premises of wife’s not being satisfying the case for transfer but from the case at hand this Court not only finds the wife is a resident of Puri but also finds the husband having come to know that the wife has already become a resident of Puri has instituted the 2nd matrimonial litigation at Koraput disclosing the address of the wife to be at Puri, taken notice on the wife at Puri. Facts involved in the cited decision remaining different from the decision cited by the petitioner, has no application to the present case. From the citation vide 2014(II) OLR 78 and TRP(C) No.9 of 2015, this Court finds a glaring difference in the factual scenario of the case at hand and in the cases dealt therein. Consequently, this Court observes no application of the decisions referred to hereinabove to the present case. 10. From the citation vide 2014(II) OLR 78 and TRP(C) No.9 of 2015, this Court finds a glaring difference in the factual scenario of the case at hand and in the cases dealt therein. Consequently, this Court observes no application of the decisions referred to hereinabove to the present case. 10. For the reasons, observations made hereinabove and following the decisions as referred to hereinabove and finding that the wife is residing at Puri well within the knowledge of the husband and one of the family dispute between the same parties having been already transferred to Puri and the present case being between the same parties again involving their marriage, this Court finds there is sufficient reason in transferring the present case to Puri and this Court therefore, in allowing the prayer involved in TRP(C) No.80/2016 direct for transfer of the MAT Case No.39 of 2016 from the Court of learned Civil Judge (Sr. Divn.), Koraput to the Family Court, Puri. On production of certified copy of this order by either of the parties, the Civil Judge (Sr. Divn.), Koraput shall do well in transferring the case record concerning MAT Case No.39 of 2016 to the Judge, Family Court, Puri forthwith. Further considering the request of learned counsel for the opposite party, this Court directs the Judge, Family Court, Puri to take all possible steps for disposing the MAT Case No.39 of 2016 within a period of four months from the date of receipt of the case records from the Civil Judge (Sr. Divn.), Koraput and will refrain itself from granting unnecessary adjournments. 11. Since the matter is decided in presence of both the parties, both the parties are directed to appear before the Civil Judge (Sr. Divn.) at Koraput on 30th of August, 2016 with a certified copy of this order and on immediate remittance of case record in MAT Case No.39 of 2016 also to appear before the Judge, Family Court, Puri on 8th of September, 2016 enabling the Judge, Family Court, Puri to proceed in the matter in terms of the direction contained hereinabove. The Transfer application stands allowed. Parties are to bear their respective costs.