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Karnataka High Court · body

2019 DIGILAW 1736 (KAR)

Rashmi K. C. v. Manjunath Goudra

2019-07-18

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. Criminal petition No.101046/2018 has been filed by the petitioner-wife under Section 482 Cr.P.C. challenging the order passed on I.A.2 filed under Section 91(2) of Cr.P.C., which came to be dismissed by order dated 22.05.2018 by the learned JMFC, Kudligi in C.C.No.267/2016. Criminal Petition No.101100/2018 has been filed by the petitioner-wife under Section 407 of Cr.P.C. praying this Court to transfer the proceedings in Crl.Misc.No.267/2016 pending on the file of the learned JMFC Court, Kudligi to any other Court at Davangere. 2. Though both the cases are posted for admission, with the consent of the learned counsel appearing for the parties, the same have been taken up for final disposal. Since both the petitions are between the same parties, in order to avoid repetition of facts and law, the same have been clubbed together and disposed of by this common order. 3. I have heard the learned counsel appearing for the petitioner and the respondent. 4. It is the case of the petitioner-wife that she got married with the respondent on 21.10.2013 and thereafter they led marital life. Thereafter there was ill-treatment and harassment by the respondent-husband for demand of dowry and as such, panchayat was also held and it did not yield any fruits. Subsequently, respondent filed a divorce petition in MAT No.26/2014 on the file of the Senior Civil Judge, Kudligi. The same came to be dismissed and being aggrieved by the same, the respondent preferred an appeal before this Court and the same is pending. In the said petition, an interim maintenance of Rs.30,000/- was awarded for a period of six months and subsequently, no maintenance was granted or given by the respondent-husband and as such she filed the petition for claiming the maintenance in Cri.Misc.No.267/2016. The respondent appeared and contested the case. In order to substantiate the fact that the respondent is having sufficient source of income, she filed an application in I.A.2 under Section 91(2) of Cr.P.C. summoning the respondent to produce the documents pertaining to the agricultural income, salary and personal income of the respondent. The said application came to be dismissed by hearing both the parties. Challenging the same the petitioner is before this Court. 5. The said application came to be dismissed by hearing both the parties. Challenging the same the petitioner is before this Court. 5. Further, it is the further contention of the petitioner that she is a resident of Davangere and the distance between Davangere to Kudligi is about 90 kms and it is very difficult for her to travel the said distance and proceed with the matter. It is further contendd that nobody is there to accompany her and greater hardship would be caused to the petitioner if the case is continued in Kudligi. It is further contended that the convenience of the petitioner-wife has to be kept in view at the time of adjudication of the matrimonial disputes and the maintenance. The convenience of the wife has to be considered and the matter has to be transferred from Kudligi Court to Davangere Court. 6. It is the submission of the learned counsel for the respondent that the application filed under Section 91(2) of the Cr.P.C. is not maintainable as the respondent has already filed an affidavit and submitted to the Court that he is no more working in Infosys nor in any company and has not getting any salaried income. It is his further submission that, insofar as agricultural property is concerned, the petitioner can obtain the documents from Bhoomi Kendra and other concerned offices and it is not necessary that the respondent has to produce the said documents. It is his further contention that, the petitioner-wife has to establish that the respondent is having sufficient sources of income and she is unable to maintain herself and she is not having any sources of income for her maintenance. The said application has been filed only with an intention to harass the respondent. On these grounds, he prayed that the trial Court after considering all the facts has rightly rejected the said I.A.2. There are no good grounds to interfere with the said order. 7. It is his further submission that the Criminal Miscellaneous was filed in the year 2016 and already the proceedings are going on by appearance of both the parties. At the last moment the petitioner-wife has filed the transfer application only to harass the respondent: husband. On these grounds he prayed to dismiss the petition filed for transfer. 8. 7. It is his further submission that the Criminal Miscellaneous was filed in the year 2016 and already the proceedings are going on by appearance of both the parties. At the last moment the petitioner-wife has filed the transfer application only to harass the respondent: husband. On these grounds he prayed to dismiss the petition filed for transfer. 8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 9. The petitioner has filed an application under Section 91(2) of Cr.P.C. asking the respondent to produce the income records and the records pertaining to the agricultural properties. When the respondent himself has told in the open Court that he is not working in the Infosys now and even in any other companies, the Court can take the said fact that he was not working in any other companies. If at all the present petitioner-wife is having any information to the effect that he is working somewhere and getting the salary income, then she can file such application and direct the concerned authorities to get the salary certificate of the respondent. In the absence of any such material, vaguely if an application has been filed asking about the salary of the respondent, such application cannot be entertained. The said application itself is very vague. As per Section 91 of Cr.P.C., the petitioner has to file an application calling for any information and any other documents by establishing the fact that the said documents were in possession of the said person. Until and unless she establishes the fact that the said documents were in possession of the respondent, the said application cannot be entertained. Insofar as the agricultural property is concerned, they are considered to be public documents and they will be available and even the petitioner-wife can obtain the said documents and produce before the Court to establish that the respondent-husband is having agricultural properties and is having the source of income so as to get the maintenance from him. That matter has to be considered and appreciated only at the time of trial. 10. That matter has to be considered and appreciated only at the time of trial. 10. Insofar as the petition for transfer is concerned, though it is contended by the learned counsel for the respondent-husband that only with an intention to harass at a belated stage the said application has been filed, as held by the Hon'ble Apex Court, it is the convenience of the wife which has to be looked into while considering the application for maintenance and other matrimonial proceedings. Though the petitioner-wife has filed on her own the petition before the Kudligi Court, but when she has made out case that there is nobody to accompany her and it is causing inconvenience to attend the Court on all dates of hearing, in that light, I feel that, if the petition is allowed and if Crl.Misc.No.267/2016 pending on the file of the JMFC Court, Kudligi, is made over to the Family Court at Davangere, it is going to meet the ends of justice. 11. In the light of the discussion held by me above, Crl.P.No.101046/2018 is dismissed as devoid of merits. Crl.P.No.101100/2018 is allowed and Crl.Misc.No.267/2016 pending on the file of the JMFC Court, Kudligi is hereby withdrawn and the same is transferred to the Family Court, Davangere. Both the parties are hereby directed to appear before the Family Court, Davangere without further notice on 16.08.2019 and the Family Court is hereby directed to proceed in accordance with law and dispose of the matter expeditiously.