Chattisgarh High Court
Smt Sunita Sahu vs Mukesh Kumar Bhatia on 12 June, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
Neutral Citation
2024:CGHC:18805
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on : 15/03/2024
Order passed on : 12/06/2024
TPC No. 90 of 2023
1. Smt. Sunita Sahu, W/o Rakesh Sahu, Aged About 42 Years,
2. Rakesh Sahu, S/o Subhash Sahu, Aged About 48 Years,
3. Shivansh Sahu (Minor), S/o Rakesh Sahu, Aged About 3 Years,
through his Mother Smt. Sunita Sahu, W/o Rakesh Sahu
All are R/o HIG 35 Amdi Nagar, HudcoBhilai, District- Durg,
Chhattisgarh
---- Petitioners
Versus
Mukesh Kumar Bhatia, S/o Sardai Lal Bhatia, Aged About 52
Years, R/o Prem Kunjm Nikita Vihar, Mahavir Nagar New Puraina
Raipur Teh & District Raipur, Chhattisgarh
---- Respondent
For Petitioners : Mr. Aman Pandey, Advocate. For Respondent : Mr. Ali Afzaal Mirza, Advocate.
Hon'ble Smt. Justice Rajani Dubey, Judge CAV Order
1. The matter is listed on admission. However, with the consent of both the parties, the case is heard finally.
2. This petition under Section 24 of the Code of Civil Procedure, 1908 has been preferred by the petitioners seeking transfer of civil suit filed by the respondent bearing Case No. 204A/2023 (Mukesh Kumar Vs. Smt. Sunita Sahu and others) pending Neutral Citation 2024:CGHC:18805 2 before the Court of learned XVI Civil Judge Class II, Raipur to the Court of competent jurisdiction at Durg (C.G.).
3. Facts in brief necessary for the purpose of adjudication of this petition are that petitioner No.1 lodged a report against the respondent alleging that he had forcible physical relation with her and he also threatened her of dire consequences if she reported the matter to the police. On her report, Crime No. 10/2022 was registered as Police Station- Bhilai Bhatti, District- Durg against the respondent under Sections 294, 376(2)(n), 384 & 506 of IPC. The respondent is facing trial before the Court of Sessions Judge in Durg in ST No. 90/2022 vide Annexure A/2. However, on 09.05.2023, the respondent filed a suit for declaration, injunction and compensation against the petitioners and prayed for the declaration that petitioner No.3 is biological son of the respondent/plaintiff and, therefore, a direction may be given for recording his name as father of petitioner No.3 in all his documents relating to education, birth etc He also sought permanent injunction against the petitioners No. 1 & 2 that they be restrained from creating any impediment in discharging of the responsibility of maintenance of petitioner No.3 by the respondent. This apart, the respondent also sought compensation of Rs.50,000/- from the petitioners No. 1 & 2. since the petitioners are residing in Durg and the said suit has been filed in Raipur, the present petition has been filed seeking transfer of said suit from Raipur to the Court of Competent Jurisdiction in Durg.
4. Learned counsel for the petitioners submits that the present suit Neutral Citation 2024:CGHC:18805 3 was filed by the respondent just to harass the petitioners. On earlier occasions, the respondent threatened the petitioners, therefore, the petitioners No. 1 & 2 do not feel safe to travel to Raipur with petitioner No.3 who is 3 years old. The Criminal Case bearing ST No. 90/2022 is pending before Sessions Court, Durg and as such if the present suit is transferred to the Court in Durg, it would not only be inconvenient for the respondent to contest both the case but would also not affect the respondent as he is financially capable of bearing the expenditure to be incurred in travellig. Even, otherwise, the respondent has to appear in the criminal case pending in the Court at Durg. The distance between Raipur and Durg is nearly 40 kms. Petitioner No.1 and Respondent gave birth to specially abled child who is in custody of petitioners No. 1 & 2. He further submits that the child is 3 years of age and is in need of his mother and the civil suit has been preferred by the respondent just to harass the petitioner No.1 by forcing her to travel and subject her to humiliation with her son. As per the knowledge of the petitioners, no application for custody of child has been preferred by the respondent before the competent Court. Therefore, the instant petition may be allowed.
5. Reliance has been placed on the decision of Hon'ble Supreme Court in the matter of Preeti Vs. Manoj Kumar passed in TPC No. 2154/2023 order dated 22.09.2023 and Mona Aresh Goel V. Aresh Satya Goel; (2000) 9 SCC 255 & the decision of this Court in the matter of Santhini Vs. Vijaya Venketesh; 2017 SCC OnLine SC 1202.
Neutral Citation 2024:CGHC:18805 4
6. Learned counsel for the respondent strongly opposes the prayer of the petitioner and submits that a criminal case bearing ST No. 90 of 2022 for the offence punishable under Sections 294, 376(2)
(n), 384 and 506 of IPC is pending before the learned Sessions Court Durg against the present respondent for which he is facing the trial before the learned trial Court Durg. The matter bearing Case No.204A of 2023 pending before the learned Court, Raipur is of a civil suit class A nature and, therefore there is no necessity of the petitioners to be present for hearing of the case on every day basis, the petitioners will have to be only present for once which would be only required at the evidence stage and respondent is willing to pay the travelling and accommodation expenses from Durg to Raipur. The petitioners can also be represented in the said case through their counsel and there is no need of them to go to the trial Court, Raipur daily.
7. Reliance has been placed on the decisions of Hon'ble Supreme Court in the matter of Teena Chhabra Vs. Manish Chhabra; (2004) 13 SCC 411, Kanagalakshmi Vs. A. Venkatesan; (2004) 13 SCC 405 & Dav Boys Senior Secondary School and others Vs. Dav College Managing Committee; (2010) 8 SCC 401
8. Heard counsel for the parties and perused the material placed on record.
9. Both the parties filed various documents and perusal of the documents shows that one sessions trial is pending against the respondent for the offence under Sections 294, 376(2)(n), 384 and 506 of IPC and in the said trial, the petitioner No.1 is Neutral Citation 2024:CGHC:18805 5 complainant. Respondent filed the civil suit before Civil Judge Class II, Raipur for declaration and permanent injunction that petitioner No.3 is his biological son and he is entitled to maintain his child and also meet his child & petitioners No.1 & 2 be permanently injuncted from causing any impediment against the respondent in discharging his responsibilities as a biological father of petitioner No.3.
10.It is clear that this civil suit is not related to any family dispute but it is clear that after lodging the complainant by the petitioner No.1 against the respondent and in pursuance of which, the respondent is facing sessions trial, the respondent filed the civil suit claiming declaration of title and permanent injunction with regard to petitioner No.3.
11. It was held by Hon'ble High Court of Calcutta in the matter of Ruhi Sahina Vs. Syed Masidur RAhman; 2018 SCC Online Cal 5758 in para 13 as under:-
13. Apart from all these, the legislative intent, why the words and expression " the child ordinarily resides" has been used, is nothing but to ensure the benefit of the child because when the custody matter would be heard the child would be brought to the Court, and, it is not expected that at every hearing day the child would be brought from Paschim Medinipur to Alipore Court travelling 100 Kms. Therefore, this logic is not acceptable that "ordinarily residing" means the matrimonial home where the couple resided last. Looking at the convenience and inconvenience of the minor child I am of the firm opinion that the custody matter should be transferred Neutral Citation 2024:CGHC:18805 6 to a Court where the minor child is residing now with his mother......"
12. The petitioners were in apprehension of some threat from respondent. It is also evident that petitioner No.1 is legally wedded wife of petitioner No.2 and petitioner No.3 is child of petitioner No.1. The respondent is not the husband of petitioner No.1. Respondent filed civil suit against all the petitioners for declaration and injunction.
13. It is well settled principles of law that welfare of child is very important and it is not the custody matter but looking to the nature of civil suit and sessions trial, convenience and inconvenience of the minor child, this Court is of the firm opinion that it would be appropriate to transfer the Civil Suit to the place where the minor is residing now with her mother.
14. In the result, the petition is allowed. Consequently, the Civil Suit No. 204A/2023 filed by the respondent before 16th Civil Judge, Class-II, Raipur is transferred to the jurisdictional Court at Durg. The District Judge, Durg is directed to allot the file to similar jurisdictional Court of Civil Judge Class-II at Durg.
15. The parties are directed to remain present before competent Court Durg on 02.07.2024.
Sd/-
(Rajani Dubey) Judge Ruchi