Jammu & Kashmir High Court
Mohd. Shafi vs Iram Jaan on 29 December, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRTA No. 15/2016 & connected MPs
Date of decision:29.12.2017
Mohd. Shafi V Iram Jaan
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the petitioner(s) : Mr. K.L. Pandita, Advocate.
For the Respondents(s) : None.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. The instant application has been moved under Section 526 of Code of Criminal Procedure, 1989 with a prayer to transfer the application filed by the respondent under Section 489 of Code of Criminal Procedure, 1989 under titled, "Iram Jaan Vs. Mohd. Shafi" from the Court of learned Chief Judicial Magistrate, Kishtwar to any other Court of equal jurisdiction either at Banihal, Ramban or Jammu.
2. The grounds taken in the application are that one-Parveen Akhter got married to petitioner and out of wedlock, the respondent namely, Iram Jaan was born. It was because of some matrimonial dispute between the petitioner and Parveen Akhter (mother of the respondent), the marriage was dissolved after prolonged litigation and "Talaqnama" was presented by the petitioner and accepted by the mother of the respondent. Before that, a Suit was filed by the petitioner for restitution of conjugal rights in the Court of learned Munsiff, Banihal and the respondent had also filed a Suit of recovery on account of Dower in the Court of learned Additional District Judge, Kishtwar though there was a constant threat given by the mother and step-father of the respondent to the petitioner for his CRTA No. 15/2016 Page 1 of 8 2 appearance in the Court of learned Additional District Judge, Kishtwar and the petitioner had sought the transfer of the said Suit from the Court of learned Additional District Judge, Kishtwar by filing a Civil Transfer Application in the Hon'ble High Court of Jammu and Kashmir, which was registered as CTA Nos. 28/2005 and 29/2005, which were finally decided against the petitioner and thereafter, the said marriage was dissolved between the petitioner and the mother of the respondent and the dower was paid by the petitioner.
3. Now both the petitioner and the mother of the respondent have re-married and the petitioner also requested the respondent to live with him, which was not allowed by the mother and the step-father of the respondent and now, the respondent by concealing and miss-stating the facts has presented an application under Section 489 in the Court of learned Chief Judicial Magistrate, Kishtwar, in which the petitioner was summoned by the learned Chief Judicial Magistrate, Kishtwar. The mother of the respondent is also a working lady and is working in PHE Department and in addition to that, she has no liability except the respondent, to whom she can properly maintained.
4. The applicant/petitioner in the instant application under Section 488 has consented to pay the amount, which was directed by the learned Chief Judicial Magistrate, Kishtwar and the petitioner has paid the amount. Now the respondent has presented another application under Section 489 for the enhancement of allowance. The petitioner is having a problem in the right knee and is not in a position to walk and travel such a long distance, as has been authenticated by the Medical Certificate (Annexure-C) dated 04th April, 2016 issued by the Medical Officer, Banihal.
5. When the respondent was minor in the year 2010, the petitioner had also presented an application before the learned District and Sessions Judge, Ramban for the appointment of guardian of respondent under Section 7 of CRTA No. 15/2016 Page 2 of 8 3 Guardians and Wards Act, which was decided by the learned District and Sessions Judge on 26th September, 2011. The petitioner from time to time has repeatedly approached the respondent, who is now major with a request to live with the petitioner and she was ready to do so, but the mother and step-father of the respondent did not allow her to live with the petitioner and the monthly allowance, which is being received by the respondent is being misused by the mother of the respondent and the unfortunate part of this is that the respondent is not physically well and the petitioner is ready to get her treated from a good medical institution, but the mother and step-father of the respondent are not allowing her to join with the petitioner and are unnecessarily threatening and harassing the petitioner on each and every date of hearing in convenience with some local goons
6. Objections have been filed on behalf of the respondent, stating therein that the divorce of the petitioner with the mother of respondent is admitted, however, it is denied that the mother of respondent and step-father gave threat to the petitioner for his appearance in a Suit for recovery of dower before the learned Additional District Judge, Kishtwar. On concocted, false and frivolous facts of threat perception, the petitioner has filed the aforesaid Transfer Applications before the Hon'ble Court, which were dismissed by the Hon'ble Court vide its judgment (Annexure-R-1) dated 03rd March, 2006. The re-marriage between the petitioner and the mother of the respondent is also admitted, however, it is stated that the petitioner has not made any effort to keep his daughter with him on the pretext that had it been son, he would have kept him with him. The petitioner also did not perform his duty of a father by giving any maintenance for the welfare of respondent, which compelled the mother of the respondent to approach the learned Trial Court for maintenance of her minor daughter and the Hon'ble Court of learned CJM, Kishtwar vide its order dated 23rd CRTA No. 15/2016 Page 3 of 8 4 December, 2008 awarded maintenance by Rs.700/- per month to the respondent, which was subsequently enhanced to Rs.1600/- per month in National Lok Adalat on 23rd November, 2013 and now vide application dated 11th September, 2015 under Section 489 Cr.P.C, the respondent sought enhancement of maintenance on the pretext that she has suffered chronic disease of Cancer and is undergoing Chemotherapy, which is a very costly affair and has produced medical record in this context. The respondent in her application further submitted that the petitioner's salary has also been enhanced to more than Rs. 50,000/- and it is in fact impossible for the respondent to save her life with the meager amount of maintenance, coupled with the fact that she is reading in higher classes and it is difficult for her to bear the expenses of treatment, livelihood and studies. The order (Annexure R-2) dated 23rd November, 2013 and the Communication (Annexure-R-3) dated 27th December, 2013 issued under RTI Act, evidencing the salary of the petitioner in the year 2013 as about Rs. 40,000/-.
7. It is further submitted in the objections that in the proceedings under Section 488 Cr. P.C., the petitioner need not have to appear before the Trial Court on each and every date and the proceedings in this regard, will be conducted by duly appointed counsel. The knee problem is no excuse in this regard. Moreover, the petitioner has enclosed a routine certificate of Medical Practitioner and no such opinion has been given by the Standing Medical Board. The said Certificate has been issued by the Assistant Surgeon, who has no expertise in Orthopedics. During the period, when the respondent was minor, the petitioner had not made any sincere and honest effort to reside with her (respondent) and only her mother and maternal uncles supported her during the period of crisis, but now, the respondent is major and is wise enough to take conscious decisions regarding her life and the mother of the respondent never forced her for CRTA No. 15/2016 Page 4 of 8 5 anything. If the petitioner is so magnanimous, he instead of contesting the litigation can give suitable amount for medicare and higher education of respondent, but he is doing nothing except lip service. The respondent has again reiterated the same contents of pressure from local goons and non- acceptance of his brief by any local lawyer due to influence of respondent's mother and her relatives, which has already been taken by him in the aforesaid Transfer Applications, which were dismissed by the Hon'ble Court vide order dated 03rd February, 2006 and thereafter, the petitioner visited Kishtwar number of times and attended the Court along with his counsel, which is even evident from the orders (Annexure-D) dated 23rd December, 2008 23rd November, 2013.
8. It is also submitted in the objections that the mother of the respondent and her maternal uncles are petty employees and have no such influence over anybody, which will deter any Advocate in Kishtwar to refuse to take brief of the petitioner. The petitioner only intention to drag the proceedings and nothing else. The petitioner has deliberately concealed the material fact from the Hon'ble Court that he has already engaged an Advocate, namely, Mr. I.J. Charak to contest his case before the learned CJM, Kishtwar, who has also filed detailed objections (Annexure-R-5) dated 16th May, 2016 to the application by the respondent under Section 489 Cr.P.C.
9. In the objections, it has also been stated that the grounds of filing instant Transfer Application is the repetition of the contents of various paras of Transfer Application, which stand already replied in detail herein the preceding paras and the same are reiterated herein as reply to the grounds of challenge for the sake of brevity and to avoid repetition. As prayed by the petitioner, if the case will be transferred to Banihal, Ramban or Jammu, then it will cause substantial irreparable loss and great hardship to the respondent, who is merely 20 years of age and is suffering from chronic disease of cancer. The petitioner has lost sight of the fact that he is only CRTA No. 15/2016 Page 5 of 8 6 suffering with a mild knee problem, but on the other hand, his daughter is suffering from Cancer and he is seeking transfer of application of respondent either to Banihal, Ramban or Jammu, which is far away from Kishtwar.
10. I have considered the rival contentions and law on the subject.
11. High court has power to transfer criminal case from one sessions divisions to any other sessions division in terms of section 526 of CR.P.C. For facility of reference, Section 526 of CR.P.C is reproduced as under:-
"526. High Court may transfer case or itself try it.- (1) whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto ; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or
(d) that an order under this Section will tend to the general convenience of the parties or witness ; or
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order-
(i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence ;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from. a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction ;
(iii) that any particular case or appeal be transferred to and tried before itself; or"
12. Bare perusal of this Section, it is evident that High court has power to transfer criminal case from one sessions division to another sessions divisions on the grounds that a fair and impartial inquiry or trial cannot be CRTA No. 15/2016 Page 6 of 8 7 possible in any subordinate criminal court; and for the general convenience of the parties or witnesses; that Criminal case can be transferred when it appears that an order about such transfer can be expedient for ends of justice and for promotion of ends of justice. These are some of valid grounds for transfer. There are also other grounds which the High Court can think proper in the facts of circumstances of particular case. But these powers are not to be exercised as a matter of routine or at the wishes of party seeking transfer of case. These powers have to be exercised sparingly by this court .
13. In family matter and especially in maintenance proceedings, the convenience of claimant/s is utmost important. Because it is claimant/s, who is/are sufferer; she/they cannot be further burdened for additional charges for travelling from place of residence to another place far flung from place of residence to prosecute the case; in present case respondent/ claimant is residence of District Kishatwar and District Ramban is situated at a distance of more than 100 kms from Kishawar; and in case petition u/s 489 Cr.P.C. filed by respondent/claimant is transferred from Kishatwar to Ramban, then it is the respondent/claimant, who will suffer more inconvenience than the petitioner.
14. Therefore this petition has no merit; it is thus dismissed. Stay, if any, is vacated.
(Sanjay Kumar Gupta) Judge Jammu, 29.12.2017 Narinder CRTA No. 15/2016 Page 7 of 8 8 This judgment is pronounced by me in terms of Rule 138(3) of the Jammu & Kashmir High Court Rules, 1999.
( Tashi Rabstan ) Judge Jammu 29.12.2017 Narinder CRTA No. 15/2016 Page 8 of 8