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2021 DIGILAW 113 (ORI)

Anisha Jain v. Sandeep Jain

2021-03-10

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - This is a Petition at the instance of the Wife, who is deserted and unemployed, under Section 24 read with 151 of the Civil Procedure Code seeking transfer of C.P.Case No.87 of 2020 pending on the file of Family Court, Sambalpur to the Family Court, Bhawanipatna at Kalahandi. 2. Background involving the case is that both the parties entered into marriage on 23.1.2011 at Durga Mangalam in the district of Sambalpur according to Hindu Rites and Customs. Wife pleaded that during marriage following demand by the Opposite Party and his family members, cash worth of Rs.4.00 lakh towards principal dowry, Rs.2.00 lakh towards purchase of dress materials for all family members, gold chain etc. besides a further sum of Rs.2.00 lakh towards household articles and other utensils was also given to them. It is asserted that there was financial assistance to the Husband on different occasions. While both Husband and Wife continuing as such, they were blessed with a male child on 3.9.2016. It is alleged that to satisfy the greediness of the Opposite Party, the father of the Petitioner has given gold ornament of 55 Grams and cash of Rs.50,000/- for dress materials for the Husband and his family members. Through Paragraph-6 of the Transfer Petition, it is alleged that the reason unknown to the Wife, at the instance of the mother-in-law of the Petitioner, the Opposite Party started abusing the Petitioner on the premises of not bringing further dowry of Rs.20.00 lakh. There was also taking place assault on her in many of the nights. When the Wife took up the issue with her parents and other relatives, attempts were taken to sort out by holding meetings, which ended in strange proposal intimating that the Husband was not interested to lead life with the Wife and a request was made to hand over the son staying with her. In the meantime, on reaching consensus, a written agreement was executed endorsing not to ill-treat or torture the Petitioner resulting in joining with the Husband at Sambalpur. Unfortunately on 23.4.2020 for trifle issue the Petitioner was again severely assaulted by her Husband, Mother-in-law, Brother-in-law and Sister-in-law combinedly to take away the life of the Petitioner. It is alleged that there was no medical treatment given to her. Unfortunately on 23.4.2020 for trifle issue the Petitioner was again severely assaulted by her Husband, Mother-in-law, Brother-in-law and Sister-in-law combinedly to take away the life of the Petitioner. It is alleged that there was no medical treatment given to her. It is at this stage, brother of the Petitioner somehow reached the house of the Husband and requested the Husband to leave the Petitioner to her parents' house. Though it was not agreed at the initial stage but on condition to sign on blank paper, she was allowed to go back to her parents' house with her son. 3. In the meantime, finding no resolution to the dispute between the Parties and Husband not showing any interest towards the Wife, surprisingly the Husband filed a Petition under Section 13(1)(ia) of the Hindu Marriage Act before the Family Court, Sambalpur praying for decree of divorce, vide C.P. Case No.87 of 2020. Summons being issued for appearance and to file show cause, the Case was posted to 25.11.2020 for appearance and filing Written Statement. Under the premises that the Petitioner being deserted by the Husband since was residing with her parents at Kesinga in the district of Kalahandi, almost three hundred kilometers away Sambalpur where the litigation was initiated and for no income of the Petitioner, she became unable to conduct her case at Sambalpur resulting in filing the present Case for transfer of the Civil Proceeding from Sambalpur to the Family Court, Bhawanipatna, which is situated 25 kilometres away from the parental residence of the Petitioner. 4. Sri M.Chand, learned counsel for the Petitioner referring to the pleadings herein submitted that the Petitioner is not only a deserted wife but also having no income to conduct the case at Sambalpur, which is 300 kilometers away from Kesinga, the Petitioner-Wife is also having a small child of four years in her custody. In these premises, Sri Chand submitted that it is impossible on the part of the Wife to attend the Court at Sambalpur at the distance of 300 kilometers and thus prayed for transfer of the Civil Proceeding to Bhawanipatna. 5. In response to notice, counter affidavit has been filed by the Husband denying the allegations in Paragraphs-3 to 7. There is also an attempt to take help of some of the decisions of the Hon'ble Supreme Court in Preeti Sharma vrs. 5. In response to notice, counter affidavit has been filed by the Husband denying the allegations in Paragraphs-3 to 7. There is also an attempt to take help of some of the decisions of the Hon'ble Supreme Court in Preeti Sharma vrs. Manjit Sharma, (2005) 11 SCC 535 , Sumit Kaur vrs. Gurvinder Singh : Transfer Petition (Civil) No.2401 of 2017 and Anindita Das vrs. Srijit Das, (2006) 9 SCC 197 to block the transfer of the Civil Proceeding. In the counter, the Husband has also attempted to demonstrate that the Wife is an employed one. To satisfy such allegation, the Husband also filed certain documents appearing to be Income Tax assessment for different years involving the Wife. Sri S.K.Acharya, learned counsel for the Opposite Party reiterated the plea taken in the counter affidavit of the Husband in a frantic endeavour at least for transfer of the Civil Proceeding to a third place to avoid risk to the Husband. It is also alleged that for the Opposite Party likely to face life risk and has to attend the Court at a distance place leaving his elderly parents, made, an endeavour may be made to at least transfer of the Civil Proceeding to a middle place. Sri Acharya, learned counsel for the Husband submitted that the Husband is agreeable for meeting with the required expenses of the Wife for attending the Court at Sambalpur. 6. This Court first made an endeavour to have a consented place for continuance of the litigation to avoid any inconvenience to either side, which failed. This Court accordingly proceeded to decide on the request of the Petitioner. Taking into consideration the rival contentions of the Parties, this Court finds, there is no dispute with regard to marriage between the Parties as well as their relationship as Husband and Wife. From Section 13 Petition at the instance of the Husband-Opposite Party bearing C.P. Case No.87 of 2020 on the file of Family Court, Sambalpur, this Court finds, this is a Petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The Husband has also made an allegation in the Section 13 Petition that the Petitioner-Wife used to quarrel with the Husband in silly matters and was refusing to take care of his old parents. The Husband has also made an allegation in the Section 13 Petition that the Petitioner-Wife used to quarrel with the Husband in silly matters and was refusing to take care of his old parents. On the own submission of the Husband in the Civil Proceeding, the wife being deserted is admittedly residing in her parents' house under Kesinga Police Station in the district of Kalahandi, which is 25 kilometers away from Bhawanipatna. Husband in his attempt to serve the notice in the Civil Proceeding has given the address of the Wife at P.S.-Kesinga, Dist.-Kalahandi. Therefore, it remains undisputed that the Wife is leading a deserted life even assuming the Income Tax Return, the Tax Return even does not show the income at reasonable time. The Wife is also living with her four years minor child that too in her parental residence, whereas the Husband is an able-bodied man. There is also no dispute that there is long distance between Sambalpur and Kesinga. It is at this stage, taking into account the Wife's travelling to attend the case with her minor child at Sambalpur, she is to cover minimum a distance of 500 kilometers up and down, it is not a matter of single day affair. Again the Wife is also required to take shelter somewhere in the litigation place at Sambalpur to attend the Court in the first hour of the fixed date. Looking to the distance she is required to cover, this Court here finds, there is already a suggestion by the learned counsel for the Husband at least to bring the case to a third place at Bolangir, which is at a distance of 100 kilometers plus from Husband's side and 150 kilometers from Wife's side. Therefore, there is no resistance for shifting of the case from Sambalpur by the Husband. If the Husband is already prepared to move 100 kilometers plus for a middle place, there cannot be any difficulty for the Husband's moving for another 100 kilometers. Looking to the distance from Kesinga to Sambalpur even accepting the plea of the learned counsel for the Opposite Party undertaking the travelling expenses for at least 250 kilometers, even if the Wife starts at 6.30 A.M. morning, she will not be in a position to reach the destination by the start of the Court. Looking to the distance from Kesinga to Sambalpur even accepting the plea of the learned counsel for the Opposite Party undertaking the travelling expenses for at least 250 kilometers, even if the Wife starts at 6.30 A.M. morning, she will not be in a position to reach the destination by the start of the Court. In such event, a person has to proceed on the previous day and take shelter in a hotel, which may not be also that easy on the part of a deserted wife, also keeping in view the law and order situation involving a woman presently. 7. This Court here taking into consideration the citations, vide (205) 11 SCC 535 finds, the proceeding therein involves Section 9 of the Hindu Marriage Act, whereas the case at hand involves Section 13 of the Act, which will take several proceedings for concluding such dispute. Therefore, the citation does not fit to the case at hand. Again for different factual position, the citations, vide (2006) 9 SCC 197 and (2004) 13 SCC 411 , do not apply to the case at hand. 8. In the circumstance, looking to the position of Parties and the discussions herein above, for the better interest of the Parties, it is better if the C.P.Case No.87 of 2020 gets transferred to the Family Court, Bhawanipatna with target for disposal of the Proceeding within a time frame. In this view of the matter, this Court while acceding to the prayer of the Wife allows the Transfer Petition thereby directing transfer of C.P.Case No.87 of 2020 from the Family Court, Sambalpur to the Family Court, Bhawanipatna. For transferring the matter keeping in view the request of the Petitioner-Wife, this Court restrains both the Husband and Wife from taking unnecessary adjournments in the Proceeding before the Family Court, Bhawanipatna. The Case Records involving C.P. Case No.87 of 2020 may be transmitted to the Family Court, Bhawanipatna, within one week from the date of receipt of this order. The Petitioner is directed to file requisites for communication of this order to the Family Court, Sambalpur and process, if any, within three working days. 9. The Case Records involving C.P. Case No.87 of 2020 may be transmitted to the Family Court, Bhawanipatna, within one week from the date of receipt of this order. The Petitioner is directed to file requisites for communication of this order to the Family Court, Sambalpur and process, if any, within three working days. 9. Considering the further request of Sri S.K.Acharya, learned counsel for the Opposite Party, on the threat on Husband, in the event he is directed to attend the Court at Bhawanipatna, this Court while observing that the Case is taken up at a third place and completely away from both Husband's and Wife's residence and there is no foundation in the allegation of threat on Husband, this Court, however, permits the Husband in the event of any threat perception in continuation of the Proceeding on the Husband, it will be open to the Husband to file appropriate application seeking police protection for consideration of the Family Court, Bhawanipatna. 10. On the Case Records being received, the Family Court, Bhawanipatna shall first undertake the exercise of conciliation at least for two dates and if conciliation fails, to complete entire exercise involving C.P.Case No.87 of 2020 within a further period of four months. 11. The TRP(C) succeeds. No cost.