Gauhati High Court
Himangshu Nath vs Smti Kaberi Nath on 14 February, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/5
GAHC010248952019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Tr.P.(Crl.) 37/2019
1:HIMANGSHU NATH
S/O SRI BINESWAR NATH, R/O WARD NO. 7, TENGABARI, P.S. AND P.O.-
MANGALDAI TOWN-784125, DIST-MANGALDAI, ASSAM, CURRENTLY
RESIDING AT AIR FORCE STATION, JALAHALLI, BANGALORE-560015
VERSUS
1:SMTI KABERI NATH
D/O SRI TULASHI NATH, R/O VILL-BADIASASHA, P.O.-KHANDAJAN, P.S.-
SIPAJHAR, DIST-DARRANG, ASSAM, PIN-784145
Advocate for the Petitioner : MR. P UPADHYAY
Advocate for the Respondent : MR G DEKA
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 14-02-2020 Heard Mr. A. Upadhyay, learned counsel for the petitioner and Mr. G. Deka, learned counsel for the respondent.
By this petition preferred under Section 407, Code of Criminal Procedure, 1973 (Cr.P.C.), the petitioner has sought for transfer of the proceeding of F.C (Crl.) Case No. 457/2019 from the Court of Principal Judge, Family Court II, Kamrup (M), Guwahati where it is presently pending, to the Court of Chief Judicial Magistrate, Darrang at Mangaldai, Assam.
Page No.# 2/5 The petitioner and the respondent are the husband and wife respectively, whose marriage was solemnised on 12.03.2018 socially at Mangaldai according to Hindu rites and rituals. On 04.10.2018, the marriage was registered under the Special Marriage Act, 1954 before the Marriage Officer, Mangaldai. After the marriage, the party started to live as husband and wife in the parental house of the petitioner at Mangaldai. The petitioner, an employee of the Air Force working in its Logistic Section, is presently posted in Bangalore.
The case projected by the petitioner is that after few months from the date of the solemnization of the marriage on 12.03.2018, disputes and differences started to arise between the parties and on 27.11.2018, the respondent had filed a First Information Report (FIR) before the Officer In-Charge, Mangaldai Police Station against the petitioner and his parents alleging commission of cruelty with demand of dowry. The said FIR has been registered as Mangaldai Police Station Case No. 1065/2018 (Corresponding G.R. Case No. 3638/2018 & PRC 310/2019) under Section 498A/34, Indian Penal Code (I.P.C.) After institution of the said FIR, the respondent had also instituted a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ("the DV Act", for short) before the Court of Chief Judicial Magistrate, Darrang at Mangaldai seeking a number of reliefs available under the DV Act. The said application has been registered and numbered as M.R. Case No. 14/2019 and the same is presently pending before the Court of learned Sub- Divisional Judicial Magistrate (Sadar), Darrang, Mangaldai and as on date, the trial of M.R. Case No. 14/2019 is going on wherein the petitioner has been participating. The respondent thereafter, has preferred an application under Section 125, Cr.P.C. before the Court of Principal Judge, Family Court II, Kamrup (M), Guwahati seeking monthly maintenance from the petitioner and the said application has been registered and numbered as F.C. (Crl.) Case No. 457/2019. The Family Court has issued summons to the petitioner calling for his appearance before the said Court. It is the proceeding of F.C. (Crl.) Case No. 457/2019, presently pending before the learned Principal Judge, Family Court II, Kamrup (M), Guwahati, of which the petitioner has sought for transfer by this petition under Section 407, Cr.P.C.
The grounds urged on behalf of the petitioner are that the petitioner is presently an employee of Air Force and is presently posted in Bangalore. The proceeding of M.R. Case No. Page No.# 3/5 14/2019 is presently pending before the Sub-Divisional Judicial Magistrate (Sadar), Darrang, Mangaldai where he has been duly participating. As one proceeding is already pending in the Court at Mangaldai, it will be convenient for the petitioner to attend the proceeding under Section 125, Cr.P.C. if the same is also transferred to Mangaldai. It is further submitted that the respondent is also a permanent resident of Darrang district and thus, it will not be inconvenient for the respondent to attend the proceeding at Mangaldai. It is further submitted that this application under Section 125, Cr.P.C. has been instituted when the Sub- Divisional Judicial Magistrate (Sadar), Darrang at Mangaldai declined the prayer for interim maintenance of the respondent on 01.06.2019 in M.R. Case No. 14/2009.
Per contra, Mr. Deka, learned counsel for the respondent has submitted that the investigation of Mangaldai Police Station Case No. 1065/2018 has not yet been completed resulting either into a charge sheet or a final report. In so far as issue of residency is concerned, he submits that after being driven out of the matrimonial house, the respondent is presently residing with her elder brother in Guwahati. The respondent has been compelled to live out of the matrimonial house as she was, during the short period since their marriage on 12.03.2018, have been treated with cruelty by the petitioner as well as his parents. He further submits that if the proceeding of F.C. (Crl.) Case No. 457/2019 is transferred from Guwahati, she will face serious inconvenience in attending the proceeding at Mangaldai.
I have considered the submissions of the learned counsel for the parties and perused the materials made available in the case record. In so far as the FIR lodged by the respondent at the Mangaldai Police Station in concerned, the investigation, as it transpires from the submission of the learned counsel for the respondent, is in progress and the same has not resulted into any charge sheet or a final report as yet. As such, apart from extending his cooperation in the investigation, the petitioner has not yet been required to appear before any Court regularly. As regards the proceeding under the DV Act in concerned, the same has been found to be instituted seeking different reliefs like protection order (under Section 18), residency order (under Section 19), monetary relief (under Section 20), etc. available under the said Act. Under sub-clause (d) of sub-section (1) of Section 20 (monetary relief) of the DV Act, it is provided that the maintenance for the aggrieved person as monetary relief can Page No.# 4/5 be in addition to an order of maintenance under Section 125, Cr.P.C. or any other law for the time being in force. Merely because the Sub-Divisional Judicial Magistrate (Sadar), Darrang, Mangaldai by his order dated 01.06.2019 had declined the interim relief under Section 23 of the DV Act, it cannot be assumed that the institution of F.C.(Crl.) Case No. 457/2019 has been instituted by the respondent at Guwahati only to cause harassment to the petitioner. The provision of DV Act does not debar institution of an application under Section 125, Cr.P.C. in addition to a proceeding under the DV Act. The respondent in the application has asserted that on and from 23.11.2018, she has been compelled to live out of her matrimonial house, after being treated with cruelty by the petitioner and his parents. She has further asserted that during the subsequent period, the petitioner has not provided any maintenance till date and she being an unemployed lady with no source of income, has been living with her elder brother in Guwahati. On the other hand, from the facts emerged from the contentions of the parties, the petitioner is not staying at Mangaldai at present and he is presently posted in Bangalore as an employee in the Air Force. To attend the proceeding either of M.R. Case No. 14/2019 or of F.C.(Crl.) No. 457/2019, he has to come from Bangalore. It is not in dispute that there is a direct air connectivity and rail connectivity between Bangalore and Guwahati whereas there is no direct air connectivity or rail connectivity between Bangalore and Mangaldai. Any journey to be undertaken by the petitioner from Bangalore to Mangaldai has to be undertaken via Guwahati.
In the aforesaid fact situations obtaining in the present case, I do not find any merit to entertain this petition seeking transfer of the proceeding of F.C (Crl.) Case No. 457/2019 from the Court of learned Principal Judge, Family Court II, Kamrup (M), Guwahati to the Court of learned Chief Judicial Magistrate, Darrang, Mangaldai, Assam. Resultantly, this petition stands dismissed.
Any observation made above shall not be construed to be an observation in the merits of the respective cases of the parties as the above observations have been made only for the purpose of deciding the merit of this transfer petition.
JUDGE Page No.# 5/5 Comparing Assistant