Orissa High Court
Afr Sarojini Sahoo @ Swain vs Japakrushna Sahoo ....... Opp. Party on 10 April, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
TRP(C) No. 44 of 2024
(An application under Section 24 of the Code of Civil Procedure)
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AFR Sarojini Sahoo @ Swain ....... Petitioner
- Versus -
Japakrushna Sahoo ....... Opp. Party
Advocate(s) appeared in this case:-
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For Petitioner : M/s. Sudarsan Behera &
B.K. Nayak-3, Advocates.
For Opp. Party
: M/s. Rashmi Ranjan Sinha &
A.K. Bilash, Advocates
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
10th April, 2024 SASHIKANTA MISHRA, J.
The present application for transfer has been filed by the petitioner, who claims to be the wife of sole opposite party. The prayer is to transfer C.S. No. 14 of 2020 filed by the opposite party in the Court of learned Civil Judge (Senior Division), Kujang to the Court of learned Judge, Family Court, Nayagarh.
Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Page 1 of 6 Date: 10-Apr-2024 17:03:19
2. The facts of the case, relevant only to decide the present application, are that the petitioner claims to be the wife of the sole opposite party having supposedly married him on 04.02.2011. Because of dissension arising between them, the opposite party allegedly drove the petitioner away from his house on 10.03.2014 and since then she has been residing with her father. On 23.04.2019, the opposite party husband filed C.S. No.538 of 2019 under Section 7(1), Explanation (b) of the Family Courts Act, 1984 in the Court of learned Judge, Family Court, Jagatsinghpur for a declaration that the petitioner is not his wife. The learned Judge, Family Court passed an ex-parte judgment on 10.12.2019 in favour of the husband. Subsequently, the petitioner having come to know about the passing of the ex-parte judgment, filed CMC No.2 of 2020 in the Court of learned Judge, Family Court which was allowed vide order dated 31.08.2023. The said matter is presently pending. In the meantime, on an application filed by the petitioner in the Court of learned J.M.F.C., Nayagarh for grant of maintenance under Section 125 of Cr.P.C. being CMC No. 66 of 2014, the opposite party was directed to pay monthly maintenance of Rs.4,000/- in the first week of every month Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Page 2 of 6 Date: 10-Apr-2024 17:03:19 with cost of Rs.300/- vide order dated 30.06.2015. Subsequently, as per application filed under Section 127 of Cr.P.C. being Crl.M.P. No. 10 of 2019 by the petitioner, the learned Judge, Family Court, Nayagarh, vide order dated 23.11.2019 enhanced the quantum of interim maintenance to Rs.5,000/-. While the matter stood thus, the opposite party filed a suit being C.S. No. 14 of 2020 in the Court learned Civil Judge (Senior Division), Kujang for recovery of the maintenance amount, which was deducted from his salary. The petitioner, on the other hand, has filed execution cases being Crl.M.P No. 29 of 2020 and Crl.M.P. No. 142 of 2021 before the Judge, Family Court, Nayagarh.
3. This Court therefore, finds that C.S. No. 14 of 2020 filed by the opposite party is pending in the Court of learned Civil Judge (Senior Division), Kujang and CP No. 538 of 2019 in the Court of learned Judge, Family Court, Jagatsinghpur. However, Crl.M.Ps. No. 29 of 2020 and 142 of 2021 are pending before the learned Judge, Family Court, Nayagarh.
4. It is stated that the petitioner resides with her father at Nayagarh, which is more than 300 Kms. away from Kujang. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Page 3 of 6 Date: 10-Apr-2024 17:03:19 Further, she has no source of income and therefore, it will be difficult on her part to attend to the case at Kujang.
5. On the other hand, it is stated on behalf of the opposite party husband that the petitioner wife is guilty of suppression of facts inasmuch as her claim of residing with her father is out and out false as her father has expired long back and in any case prior to 2011.
6. Heard Mr. S. Behera, learned counsel for the petitioner and Mr. R.P. Sinha, learned counsel appearing for opposite party.
7. Having heard the parties at length, the first thing that strikes to the mind of the Court is the apparent falsehood resorted to by the petitioner in her transfer application to the effect that she has been residing with her father at Nayagarh. In paragraph-3 of the transfer application, the following has been stated.
"That prior to the marriage, the Opp.Party has 4 daughters. After some days, the daughters ill-treated the petitioner. As this situation continued, by the intervention of the local police, the matter was resolved. On 10.03.2014 the Opp.Party drove the petitioner from house and since then, the petitioner has been staying with her father."
[ Emphasis supplied] Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Page 4 of 6 Date: 10-Apr-2024 17:03:19
8. In the counter affidavit filed by the opposite party it is stated that the father of the petitioner died before 2011. Such averments in the counter affidavit being pointed out, learned counsel for the petitioner submits that the averments made in paragraph-3 of the transfer application were made inadvertently and on instructions of the client. In other words, the fact that the father of the petitioner is no longer alive has not been denied. In such view of the matter, the averments in paragraph-3 of the transfer application amount to deliberate misrepresentation of fact on the part of the petitioner. This is nothing but playing fraud on the Court with the apparent intent of seeking a favourable order. This is something that cannot be countenanced in law. The above principle was reiterated by the Supreme Court in the case of United India Insurance Co. Ltd. v. Rajendra Singh1 by observing that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. In the instant case it is obvious that the petitioner wanted to persuade the Court to transfer the case from Kujanga to Nayagarh by falsely projecting that she is 1 (2000) 3 SCC 581 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Page 5 of 6 Date: 10-Apr-2024 17:03:19 helplessly dependant on her father and residing with him at Nayagarh, even though her father is no more. This also amounts to swearing false affidavit and giving false declaration as appended to the transfer application. This Court therefore, finds that the petitioner not having come to the Court with clean hands does not deserve any sympathy whatsoever.
9. Even otherwise, on merits this Court finds no compelling necessity of directing transfer of the case from Kujanga to Nayagarh, more so as the petitioner can always seek permission of the Court to attend the proceeding through virtual mode by submitting appropriate application. It is needless to mention that if such application is filed by the petitioner, the same shall be considered by the concerned Court in accordance with law.
10. In the result, the transfer application is dismissed.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack.
The 10th April, 2024./ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Page 6 of 6 Date: 10-Apr-2024 17:03:19