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2018 DIGILAW 348 (GAU)

Mampi Biswas v. Rajib Mitra

2018-02-22

A.K.GOSWAMI

body2018
JUDGMENT & ORDER : Arup Kumar Goswami, J. Heard Ms D. Ghosh, learned counsel for the petitioner. Also heard Mr. M. Choudhury, learned counsel for the respondent. 2. By this application, the petitioner, who is the wife of the respondent, prays for transfer of T.S. (D) No. 39/2016 along with Misc. (J) Case No. 37/2016 pending in the court of the learned District Judge, Sonitpur to the Family Court, Kamrup at Guwahati. 3. The aforesaid case was filed by the respondent under Section 13(1) of the Hindu Marriage Act, 1955, for short, the Act, for a decree of divorce alleging that the petitioner was having extra marital affairs. Notice of the said petition was given to the petitioner on 20.4.2016 requiring her to file written statement on 26.5.2016. 4. The marriage between the parties was solemnized in the year 2013 (though date of marriage is not available on record) at Sonitpur and a baby girl was born on 10.5.2016. 5. In the affidavit filed by the respondent, it is denied that a female child was born out of the wedlock. It is pleaded in the said affidavit that the respondent being in the service of Indian Army, had been away from the matrimonial house for long periods of time and during such absence, the petitioner was involved in an illicit relationship with his own brother-in-law. 6. In the transfer petition, the petitioner has stated that at the matrimonial house she was tortured by the respondent and that the respondent had illicit relationship with another woman whose name is also mentioned therein. It is stated that on 23.10.2015, the petitioner was driven out of the matrimonial home by the respondent and her in-laws. 7. In the affidavit, the respondent has stated that the petitioner resides with her parents at Durgapur village in Karbi Anglong and a false plea is taken that she is residing at her maternal uncle's place at Panikhaiti in the district of Kamrup (M). 8. 7. In the affidavit, the respondent has stated that the petitioner resides with her parents at Durgapur village in Karbi Anglong and a false plea is taken that she is residing at her maternal uncle's place at Panikhaiti in the district of Kamrup (M). 8. It is pleaded in the affidavit that the petitioner left her matrimonial house on 22.10.2015 with jewellery and money belonging to the couple for which the father of the respondent had to lodge an ejahar before the Officer-in-Charge of Dhekiajuli Police Station consequent upon which, finally, a complaint case was registered being CR case No. 957/2016 under Section 406 IPC in the Court of the learned SDJM, Tezpur, and the learned Magistrate had taken cognizance of the offence under Section 406 IPC and issued summons. 9. It appears that after filing of the ejahar as well as the application for divorce by the respondent, the petitioner filed a case under Section 125 Cr.P.C. before the Principal Judge, Family Court, Kamrup which is registered as FC (Crl) No. 288/2017 as well as a case alleging domestic violence being DV No. 66/2017 under Section 12 and 23(2) of Protection of Women from Domestic Violence Act, 2008. 10. In the additional affidavit filed by the respondent, it is pleaded that the respondent filed a petition for quashing the DV No. 66/2017 which was registered as Criminal Petition No. 797/2017. But in the meantime, on 9.2.2018, DV No. 66/2017 was dismissed for non-prosecution. As against FC (Crl.) No. 288/2017 also, the respondent had filed a transfer petition being Transfer Petition (Crl.) No. 29/2017 and by an order dated 31.8.2018, this Court had suspended the proceeding in the said case. 11. It is also noticed there from that a transfer petition, registered as Transfer Petition(Crl) No. 24/2017 was filed by the petitioner for transfer of CR Case No. 957/2016 and this Court by an order dated 28.7.2017, had suspended further proceeding of the said complaint case. 12. An attempt was made by this Court for resolving the dispute amicably and the parties were referred to Mediation Centre of this Court by an order dated 5.6.2017. 13. The Mediator had furnished a report stating that despite several communications made, no response was received from the parties and accordingly, she had referred back the matter. 14. 12. An attempt was made by this Court for resolving the dispute amicably and the parties were referred to Mediation Centre of this Court by an order dated 5.6.2017. 13. The Mediator had furnished a report stating that despite several communications made, no response was received from the parties and accordingly, she had referred back the matter. 14. During the course of hearing, Ms Ghosh has submitted that her maternal uncle, with whom she was living at Panikaiti, had expired in the month of October 2017 and thereafter, the petitioner had gone back to live with her parents at their home at Durgapur in the district of Karbi Anglong. 15. In the transfer petition, it is pleaded that she is economically depended on her parents, who themselves are financially weak. Her father is an agricultural labourer and that the respondent, being in the Army, is earning a salary of Rs. 50,000/- per month. It is pleaded that it will be difficult for her to go to Tezpur where the suit is filed due to financial constraint as well as on the ground that it will be difficult to leave her seven month old baby behind. 16. The respondent in his affidavit has stated that while his gross salary is Rs. 42,000/-, his take home salary is Rs. 30,000/-. 17. During the course of hearing Mr. Choudhury has submitted that the respondent is willing to provide the expenses to the petitioner for attending the court at Tezpur. Relying on the averments made in the affidavit, Mr. Choudhury submits that the respondent being in the Army cannot take leave to appear before the court on every date and at Tezpur, his father is looking after the case on a day to day basis, and if the case is transferred to the court of the Principal Judge, Family Court at Guwahati, the respondent will be required to appear personally on every date as legal representation is not allowed in the Family Court. He submits that in such a scenario, it will be very difficult for him to pursue the case. 18. From the transfer petition, it is apparent that the parental residence of the petitioner is in the district of Karbi Anglong and presently she is residing there. He submits that in such a scenario, it will be very difficult for him to pursue the case. 18. From the transfer petition, it is apparent that the parental residence of the petitioner is in the district of Karbi Anglong and presently she is residing there. May be, at the relevant time when this transfer petition was filed or when the petition under Section 125 Cr.P.C. was filed, the petitioner was residing at Panikhaiti in the district of Kamrup(M) though this is disputed by the respondent. In the event the case is transferred from Tezpur to Kamrup, the petitioner will have to come from Karbi Anglong to Guwahati, either with the child or leaving the child in the care of her parents. 19. If the case is tried at the court at Tezpur, where legal representation is allowed, the same being not a Family Court, the petitioner need not attend court on each and every date and can have legal representation, whereas if the case is transferred to the court of the Principal Judge, Family Court at Guwahati, the petitioner will have to appear on each and every date. That apart, the difficulties to be faced by the respondent, he being in the service of Indian Army, cannot be glossed over. After all, the plaintiff is the dominus litis and having regard to the facts that have unfolded, coupled with the submission advanced by the counsel for the respondent that he is ready to bear the expenses towards travelling and incidental expenses to be incurred by the petitioner, I am of the opinion that it will not be in furtherance of justice to transfer the case from the court of the learned District Judge, Sonitpur to the court of the learned Principal Judge, Family Court at Guwahati. 20. Taking that view this application is rejected. 21. It appears from the application under Section 24 of the Hindu Marriage Act, 1955, annexed with the transfer petition that the petitioner had filed written statement to the divorce petition as there is an averment that the petitioner had filed written statement. However, the learned counsel for the parties are not too sure about this. 22. In case the written statement was not filed, the petitioner will be permitted to file her written statement within a period of three months from today. However, the learned counsel for the parties are not too sure about this. 22. In case the written statement was not filed, the petitioner will be permitted to file her written statement within a period of three months from today. The respondent is directed to make an initial deposit of an amount of Rs. 6,000/- before the court of the learned District Judge, Sonitpur which will be allowed to be withdrawn by the petitioner and it is made clear that the same will be in addition to such litigation expenses that may be awarded in the application under Section 24 of the Hindu Marriage Act, 1955. The respondent, for each and every visit of the petitioner to Tezpur, will deposit an amount of Rs. 6,000/-, which amount is considered reasonable for travelling and other expenses including that of an escort. 23. The learned trial court, in the orders to be passed, will specifically indicate when the petitioner is required to be personally present. 24. The parties to the proceeding will appear before the court of the learned District Judge, Sonitpur on 20.4.2018. 25. If the petitioner provides the bank account number, liberty is granted to the learned trial court to direct deposit of Rs. 6,000/- as travelling expenses in the bank account of the petitioner instead of the same being deposited in the court. 26. The petition stands dismissed with the above directions and observations.