Jammu & Kashmir High Court
Ajay Mankotia vs Renu Jamwal & Anr. on 28 July, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT
JAMMU
Case: Petition u/s 561-A Cr.P.C. No.186/2015 & MP
No.01/2015 c/w
Cr.T.A. No.22/2014 & MP No.20/2014: &
CTA No.02/2016 & MP No.01/2016
Date of decision: 28.07.2017
Ajay Mankotia Vs. Renu Jamwal & anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner(s) : Mrs. Monika Kohli, Advocate.
For respondent(s): Mr. S. A. Hussain, Advocate.
i) Whether approved for reporting in Press/Journal/Media : Yes/No
ii) Whether to be reported in Digest/Journal : Yes/No
1. Through the medium of present petition under Section 561-A Cr.P.C., petitioner seeks quashing of the judgment dated 17.01.2015 passed by learned Judicial Magistrate Ist Class (Munsiff) Reasi in a petition filed by the respondents for grant of maintenance under Section 488 Cr.P.C.
2. At the very outset, it is pertinent to mention that on 30.09.2014, a Criminal Transfer Application bearing No.22/2014 was filed by the petitioner seeking transfer of aforesaid Petition under Section 488 Cr.P.C. from the Court of learned 561-A Cr.P.C. No. 186 of 2015 Page 1 of 12 Chief Judicial Magistrate, Reasi to any other Court at Jammu.
On 03.02.2016, a Civil Transfer Application bearing No.02/2016 came to be filed by the respondent seeking transfer of Petition under Section 13 of the Hindu Marriage Act from the Court of Additional District Judge (Matrimonial Cases) Jammu to the Court of Principal District Judge, Reasi. These all have been taken together.
3. Petitioner in petition u/s 561-A Cr.P.C.
No.186/2015 & MP No.01/2015 has averred that petitioner and respondent No.1 are husband and wife. Their marriage was solemnized on 12.10.2011 according to Hindu rites at Kunjwani, Jammu. After the marriage, respondent No.1 came to her matrimonial home at Ward No.16, Lower Shivanagar, Kathua for discharging her matrimonial obligations. The relationship between the petitioner and respondent No.1 remained cordial for about one month. Thereafter, respondent No.1 insisted upon to join the job of Teacher in Convent School, Reasi since she had been teaching there in the said school prior to her marriage. On this, the petitioner requested her to search job at Kathua but respondent No.1 was time and again asking the petitioner to allow her to re-join the school at Reasi. The petitioner started searching job for her at Kathua and even got her interview in different schools at Kathua.
4. Petitioner has further averred various facts in this petition, which he should have pleaded in objections before Court where petition u/s 488 Cr.P.C. was filed by respondents. Even otherwise in petition u/s 561-A Cr.PC a detail appreciation of evidence cannot be done, which is only domain of trial court or appellate court or revisional court, if finding seems to be of perverse in nature. Whatever the petitioner has case on facts, it cannot be considered by Court, while exercising power under section 561-A Cr.P.C.
5. Now the only question is to be decided as to whether in a petition under section 561-A Cr.P.C. a final order passed by Magistrate u/s section 488 Cr.P.C. can be challenged, when petitioner has other remedy available to him under law. The answer is no, because law is settled that when there is statutory remedy available under law, then power under section 561-A Cr.P.C. cannot be exercised by this court.
6. In 2013 (4) RAJ in case titled 'Mohit alias Sonu v State of UP' it is held as under :-
"22. In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section 397 of Cr.P.C. and not by invoking inherent jurisdiction of the High Court under Section 482 of Cr.P.C. Maybe, in order to circumvent the provisions contained in sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 of Cr.P.C. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 of Cr.P.C., the High Court before passing the order would have given notice and opportunity of hearing to the appellants.
23. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.
24. Courts possess inherent power in other statute also like the Code of Civil Procedure (C.P.C.) Section 151 whereof deals with such power. Section 151 of C.P.C. reads:-
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court."
25. This Court in the case of Padam Sen & Anr. v. State of Uttar Pradesh, AIR 1961 SC 218 regarding inherent power of the Court under Section 151 C.P.C. observed:-
"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict what has been expressly provided in the Code or against the intentions of the Legislation. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
26. In a Constitution Bench decision rendered in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, this Court held that :-
"The inherent jurisdiction of the Court to make orders ex debito justiciae is undoubtedly affirmed by S.151 of the Code but inherent jurisdiction cannot be exercised so as to nullify the provision of the Code of Civil Procedure. Where the Code of Civil Procedure deals expressly with a particular matter, the provision should normally be regarded as exhaustive."
27. The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-à-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to."
7. In present case, petitioner has also remedy available to file revision before Sessions Court against order impugned or petition for setting aside ex-parte order impugned before trial court. So this petition is not maintainable. It is dismissed accordingly. Petitioner may approach competent Courts for remedy as mentioned above. Interim stay, if any, is vacated.
Cr.T.A. No.22/2014 & MP No.20/2014:
8. This petition for transfer of petition u/s 488 Cr.P.C. has been filed by husband, which was pending before CJM Reasi, to any other Court of competent jurisdiction at Jammu. From the perusal of record, it reveals that that petition has already been decided on 17.01.2015. So this petition has become infructuous. This petition is disposed of accordingly. Connected MP also stands disposed of.
CTA No.02/2016 & MP No.01/2016
9. This civil transfer application is on behalf of applicant-Renu Jamwal seeking transfer of Petition u/s 13 of the Hindu Marriage Act bearing File No.365/HM Act of 2015 titled 'Ajay Mankotia Vs. Renu Jamwal' from the Court of Additional District Judge (Matrimonial Cases) Jammu to the Court of Principal District Judge, Reasi.
10. Learned counsel for the applicant stated that the marriage between the applicant and the non- applicant was solemnized at Trintha Reasi on 12.10.2011 and within one week from the date of marriage the non-applicant and his parents took away the jewellery of the applicant and demanded Rs.10 lacs as dowry for establishing business. When the applicant could not meet the demands of the non applicant, his parents assaulted and tortured her physically and mentally. On the instigation of his mother, the non-applicant attacked the applicant. As a result of which she suffered fracture in her hand and suffered eye hemorrhage. Her mobile phone was also taken away so that she could not report the matter to her parents or the police. She was thrown out of her matrimonial house when she was in the advance stage of pregnancy. On 02.11.2013 a male child was born but no one from the non- applicant's side visited her.
11. Learned counsel stated that on 21.12.2013 the applicant filed a petition u/s 488 Cr.P.C. before the learned Munsiff (JMIC) Reasi in which the non-applicant appeared on 18.01.2014. The said application came to be finally disposed of by the Court on 17.01.2015.
12. It is submitted that the non-applicant earlier filed petition under Section 9 of the Hindu Marriage Act before the Court of Principal District Judge, Kathua. The applicant sought transfer of the said petition before this Hon'ble Court by filing Civil Transfer Application No.02/2014. On 22.01.2014, this Court stayed the proceedings before the learned Principal District Judge, Kathua.
13. It is stated that the non-applicant has instituted the petition under Section 13 of the Hindu Marriage Act against the applicant before the Court of Additional District Judge (Matrimonial Cases) Jammu. The applicant seeks transfer of the aforesaid petition to the Court of Principal District Judge Reasi on the ground that the applicant is a destitute lady having no source of income. She is having an infant of about 1 ½ years and has no means to travel to Jammu for contesting the aforesaid case filed by the non- applicant. The Hon'ble Supreme Court time and again has reiterated that it is the convenience of the wife is to be seen in matrimonial proceedings especially when she is facing physical as well as financial difficulties. The allegations leveled in the petition under Section 13 of the Act are false and baseless. The applicant always tried to reconcile with the non-applicant and lead a happy marital life but the non-applicant and his family members have treated the applicant with extreme cruelty.
14. With the afore mentioned submissions, learned counsel prayed for transfer of titled 'Ajay Mankotia Vs. Renu Jamwal' from the Court of Additional District Judge (Matrimonial Cases) Jammu to the Court of Principal District Judge, Reasi.
15. Objections have not been filed by the other side.
16. Heard both counsel and gone through law on the subject.
17. In term of Section 24 of C.P.C., High Court or District Court has been vested power to withdraw any civil case/ appeal or other proceeding pending in any subordinate court and transfer it to any other court of competent jurisdiction; this can be done for convenience of parities, on apprehension of bias, to avoid conflicting decision and for the interest of justice.
18. In present case respondent has filed a petition of Divorce before matrimonial Court against petitioner at Jammu; she is resident of Reasi; she obtained maintenance in a petition u/s section 488Cr.P.C from Reasi Court; she is destitute lady, cannot attend proceeding at Jammu . While taking judicial notice the distance between the residence of the petitioner (Reasi) and of the Court at Jammu would consumes 2-3 hours in travelling on one side, then of course, the petitioner has to start travelling in the odd hours in the morning about 6.00 a.m., which would also depend upon the bus service/mode of transportation and if the petitioner is free from the Court at 1.30 in summer and 4.00 p.m. in winter in the evening, then again, she has to travel for another 2-3 hours to reach back her destination which would again depend upon the availability of the mode of transportation. It again depends upon the weather also because in the winters, it is difficult to travel in the early hours of the morning and in the late hours of the evening alone or with a small child in the bus which would also depend upon the availability of the mode of transportation. So for convenience of petitioner, the case is required to be transferred at Reasi.
19. The conduct of respondent also shows that he firstly filed a petition before Kathua Court under Section 9 of H.M. Act and now present petition at Jammu u/s 13 of H.M. Act. So his only aim is to drag the wife in various litigation.
20. In AIR 2002 SC 396 in case titled Sumita Singh v Kumar Sanjay and another, it is held as under:-
"It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at, The circumstances indicated above are sufficient to make the transfer petition absolute.
4. Accordingly, Matrimonial Case No. 30 of 2000 pending before the VIth Additional District and Sessions Judge, Ara, Bhojpur, Bihar shall stand transferred to the District Judge, Delhi, who shall hear it himself or assign it for hearing to an appropriate forum.
21. Resultantly, the present transfer application is allowed, the petition u/s 13 of H.M. Act is hereby withdrawn from the Court of Additional District Judge (Matrimonial Court) Jammu and is transferred to the Court of District Judge Reasi.
22. Copy of this order be transmitted to both the Courts below.
( Sanjay Kumar Gupta )
Jammu Judge
28.07.2017*Narinder