Gauhati High Court
Sanjay Kumar Sharma vs Kabita Das on 20 November, 2019
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010192812018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Tr.P.(C). 56/2018
1:SANJAY KUMAR SHARMA
S/O- SRI SATBIR SHARMA, R/O- NEPALI BASTI NO. 4, GURUBANDHA
TEZPUR, DIST- SONITPUR, ASSAM, PRESENTLY SERVING AS JUNIOR
ENGINEER (QS AND C) A G E (I) AF, KUMBHIRGRAM, SILCHAR- 788109,
RESIDING IN H NO. 37, WARD NO. 27, GIRISH ROAD, TARAPUR, SILCHAR,
PIN- 788003, DIST- CACHAR, ASSAM
VERSUS
1:KABITA DAS
W/O- SRI SANJAY KUMAR SHARMA, D/O- SRI KESHAB CH DAS, R/O-
MALOW ALI, KRISHNA NAGAR, MUKTI JUDHA PATH, P.O, P.S AND DIST-
JORHAT, ASSAM, PIN- 785001
Advocate for the Petitioner : MR H MAURYA
Advocate for the Respondent : MR. D BORAH
Linked Case : Tr.P.(Crl.) 25/2018
1:SANJAY KUMAR SHARMA
S/O SRI SATBIR SHARMA
R/O NEPLI BASTI NO. 4
GURUBANDHA
TEZPUR
DIST. SONITPUR
ASSAM
PRESENTLY SERVING AS JUNIOR ENGINEER(QS AND C)
A G E (I) AF
KUMBHIRGRAM
Page No.# 2/7
SILCHAR-788109
RESIDING IN HOUSE NO. 37
WARD NO. 27
GIRISH ROAD
TARAPUR
SILCHAR-788003
DIST. CACHAR
ASSAM
VERSUS
1:KABITA DAS
W/O SRI SANJAY KUMAR SHARMA
D/O SHRI KESHAB CH. DAS
R/O MALOW ALI
KRISHNA NAGAR
MUKTI JUDHA PATH
PO
PS AND DIST. JORHAT
ASSAM PIN-785001
Advocate for the Petitioner : MR H MAURYA
Advocate for the Respondent : MR. D BORAH
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 20-11-2019 Heard Ms. P. Mishra, learned counsel for the petitioner. Also heard Mr. D. Borah, learned counsel for the respondent.
2. By this petition, Tr.P.(C) No. 56/2018, filed under Section 24, Code of Civil Procedure 1908 (CPC, in short), the petitioner has sought transfer of the proceeding of Title Suit (M) No. 64/2018 from the Court of learned Additional District Judge, Jorhat at Jorhat, to the Court of learned Principal Judge, Family Court at Guwahati. By the other petition, Tr.P.(Crl.) No. 25/2018, filed under Section 407, Code of Criminal Procedure (CrPC), 1973, the petitioner has prayed for transfer of the proceeding of the maintenance case, Misc Case No. 66/2018, filed Page No.# 3/7 under Section 125 of the Code of Criminal Procedure, 1973 (CrPC, in short), presently pending before the Court of learned Judicial Magistrate, First Class, Jorhat to the Court of learned Principal Judge, Family Court, Guwahati.
3. The marriage of the petitioner and the respondent was solemnized on 21.01.2005 as per Hindu rites and rituals and out of the wedlock, two children were born to the couple on 22.10.2005 and 10.08.2008 respectively.
4. The petitioner is a Central Government employee, presently serving as a Junior Engineer in the Military Engineering Service (MES), and is presently posted at Silchar, MES. The respondent is a house-wife and is presently residing at her parental house in Jorhat town. The respondent has been residing with her parents since 06.10.2017. The two children are presently with the petitioner at Silchar and they are undergoing their studies in Silchar, though at an earlier point of time, they were admitted at Don Bosco High School at Jorhat.
5. The case of the respondent is that after the marriage, the couple started residing at Tezpur, District - Sonitpur. The family of the petitioner hails from the State of Haryana and the respondent has, inter-alia, alleged that after the marriage, the family of the petitioner had not treated the respondent properly and did not accept the respondent as their daughter-in-law socially and religiously. It is alleged by the respondent that she was tortured by the family members of the petitioner, though for the initial period of 5 years, the relationship between the petitioner and the respondent was cordial. The respondent stated that during that period, the petitioner used to console the respondent that all issues would be settled in course of time but he himself did not make any effort to resolve the issues. The respondent gave birth to the first child on 22.10.2005 and she has alleged that all the expenditure for the said birth was borne by the parents of the respondent and the petitioner did not bear anything. Thereafter too, when the respondent gave birth to the second child on 10.08.2008, the petitioner did not bear any expenditure. Subsequently, when the petitioner got transferred to Shillong, the respondent along with her two children was brought to Shillong and they started living in an official quarter. It is further alleged by the respondent that the petitioner had some illicit relations with other women and he kept on neglecting the respondent. On certain occasions, he used to assault the petitioner. Thereafter, the petitioner was transferred to Azara, Guwahati and the family also shifted to Azara, Guwahati. After being so shifted, they Page No.# 4/7 started living in the official quarter of the petitioner but as per the allegations of the respondent, the petitioner continued his torture upon her and for which she with her children had to come back to her parental house at Jorhat after lodging an ejahar in the Azara Police Station on 19.05.2014. After the ejahar was lodged, the petitioner had submitted an affidavit on 30.06.2014 stating that he would maintain matrimonial relationship with the respondent and would not file any case against her in future. After her return to Jorhat, the respondent admitted the children in Donbosco High School, Jorhat and all their expenses were borne by the parents of the respondent as the petitioner did not show any interest for the studies of the children. In the year 2017, the petitioner approached and requested the respondent to come back to the matrimonial home and the respondent thinking about the interests of the children, went back to live with the petitioner along with the children and started residing at Tezpur. The petitioner, thereafter, went to his place of posting at Shillong leaving the petitioner and the children at his parental house at Tezpur but the family members of the petitioner against tortured the respondent and drove her out for which she had to take shelter at her parental house on 06.10.2017. Thereafter on 05.01.2018, an incident of assault had happened at her parental house when the respondent came to Jorhat for which she stated to have lodged an ejahar on 06.01.2018 in Jorhat Police Station. The respondent had further alleged that no maintenance was given by the petitioner during the aforesaid period.
6. Asserting as above, the respondent has instituted the proceeding, T.S.(M) No. 64/2018, before the Court of learned Additional District Judge, Jorhat seeking dissolution of the marriage by a decree of divorce under Section 13(1)(ia)(ib) of the Hindu Marriage Act. The respondent has also instituted Misc. Case No. 66/2018 before the Court of learned Chief Judicial Magistrate, Jorhat seeking maintenance under Section 125, CrPC and the said proceeding is also presently pending before the Court of learned Judicial Magistrate, First Class, Jorhat, Assam. Apart from the aforesaid proceedings presently pending at Jorhat, there is another case pending in Jorhat, G.R. Case No. 56/2018, in the Court at Jorhat, which has arisen out of an FIR lodged by the respondent on 06.01.2018, which, in turn, got registered as Jorhat Police Station Case No. 42/2018 under Section 448/294/506/34, Indian Penal Code (I.P.C.). The petitioner has preferred these two petitions before this Court seeking transfer of the proceeding of T.S. (M) Case No. 64/2018 and Misc. Case No. 66/2018.
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7. As the parties in both the cases are same and the issues involved are inter-connected, the same are heard together, on the request of the learned counsel for the parties.
8. Ms. Misra, learned counsel for the petitioner has submitted that the petitioner is presently posted at Silchar and if the proceedings of the aforesaid two cases are transferred to Guwahati, no inconvenience would be caused to the respondent. The inconvenience caused to the petitioner to attend the proceeding in Jorhat is much higher than the inconvenience likely to be caused to the petitioner is he is made to attend the proceedings in Guwahati. The mode of communication from Silchar to Guwahati is much better than the available mode of communication from Silchar to Jorhat. If in the event the proceedings are transferred to Guwahati, the petitioner would require 1-2 days time to attend, rather than 3-4 days which he would require to travel from Silchar to Jorhat. It is further submitted by her that the petitioner is ready to bear the expenses required for the respondent to travel from Jorhat to Guwahati to attend the proceedings. It is further submitted that the two children are presently with the respondent and are pursuing studies at Silchar. Therefore, if the petitioner is required to travel to Jorhat for 3-4 days, much inconvenience would also be caused to the children.
9. Per contra, Mr. Bora referring to the affidavit-in-opposition filed on behalf of the respondent, has submitted that the respondent is an unemployed lady and she has no means to contest any proceeding at Guwahait. It is further submitted by him that except her, there is nobody in her house to accompany her to Guwahati. The father of the respondent is a person aged 70 years and he is a diabetic patient who has recently undergone surgery in both his eyes on 24.11.2018 and is not in a condition to undertake the journey from Jorhat to Guwahati. The mother of the respondent is also an orthopedic patient. In support of their ailments, the respondent has also submitted the documents regarding their medical treatment. It is also submitted by Mr. Bora that after investigation of Jorhat Police Station Case No. 42/2018, the I.O. of the case has submitted the charge sheet against the petitioner and the proceeding in connection with G.R. Case No. 56/2018, is presently at the trial stage. It is further submitted that the proceeding of Misc. Case No. 66/2018 is also at the trial stage at present and the next date of the case is on 25.11.2019. The statements of few witnesses have already been recorded in Misc. Case No. 66/2018.
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10. I have considered the submissions of the learned counsel for the parties and also perused the materials made available with the pleading of the parties.
11. As has been indicated above, the respondent has initiated the aforesaid two proceedings in Jorhat seeking dissolution of her marriage by a decree of divorce and the other seeking maintenance. That apart, the proceeding of G.R. Case No. 56/2018, is also on the basis of an FIR lodged by the respondent. The maintenance case was instituted in the month of June, 2018 and summons for appearance was issued to the petitioner in the month of June, 2018 directing him to appear on 12.07.2018 and in response to the summons so sent, the petitioner has entered appearance in the case and he by participating on the subsequent dates, has been contesting the same which is presently at the stage of evidence. Similarly in G.R. Case No. 56/2018, the petitioner has entered appearance and has been taking part in the proceedings. The proceeding of G.R. Case No. 56/2018, is also at the stage of evidence at present, with the depositions of few of the witnesses already recorded.
12. In so far as the contention regarding the inconvenience expressed on behalf of the petitioner for attending the proceedings at Jorhat is concerned, the ground urged on behalf of the petitioner deserves no acceptance. The convenience to attend the proceedings at Guwahati is to be considered along with the inconvenience that is likely to be caused to the respondent. It is not in dispute that after the respondent was allegedly driven out from the parental house of the petitioner at Tezpur in the year 2017, the petitioner has not provided any kind of maintenance out of his own to the respondent. The fact that the respondent is not employed is not denied. In case the proceedings are transferred in exercise of the power under Section 24, CPC, the proceedings of the two cases, noted above, are to be transferred to Guwahati and in such event, the witnesses are also to be summoned to Guwahati, which in my considered opinion, appears not justified because of the present stages of the proceedings at Jorhat. The inconvenience that is likely to be caused to the respondent to attend the proceedings at Guwahati is much more than the inconvenience that is being presently faced by the petitioner. In the absence of any other member who can accompany the respondent, it would not be proper also to transfer the proceedings from Jorhat. It is stated that the distance between Silchar to Guwahati is about 410 Kms and the distance between Silchar to Jorhat is about 350 Kms. The difference in the time periods required to Page No.# 7/7 undertake to and fro journeys between Silchar to Guwahati and between Silchar to Jorhat are not that significant so as to bring any great difficulty to the petitioner. Being in Military Engineering Service (MES), the petitioner is in a position to make alternative arrangement for his children so as not to bring any inconvenience to his children during his absence in Silchar for attending the proceedings of Jorhat. Just because it requires some more time for him to undertake the to and fro journey to Jorhat, the same cannot be accepted to be a ground to transfer the proceedings of the aforesaid two cases from Jorhat to Guwahati only for the interests of the petitioner, which, in turn, is likely would cause much more inconvenience, to the detriment to the respondent.
13. In view of the above discussion, this Court finds that the petitions filed by the petitioner lack merit and accordingly, the same are dismissed. The interim order dated 14.09.2018 stands recalled. There shall, however, be no order as to cost.
JUDGE Comparing Assistant