Smt. Sandhaya Kumari Sahu vs Deepak Kumar Sahu
2022 Latest Caselaw 562 Chatt

                                   -1-




                                                                       NAFR

          HIGH COURT of CHHATTISGARH, BILASPUR


                      TPC No. 27 of 2021
Smt. Sandhaya Kumari Sahu W/o Deepak Kumar D/o Kaleshwar Sahu
Aged About 25 Years, Occupation House Wife, R/o Village Bodsara,
District Janjgir Champa Chhattisgarh., District : Janjgir-Champa,
Chhattisgarh
                                                               ---- Petitioner
                                 Versus
Deepak Kumar Sahu S/o Naval Sahu Aged About 35 Years Occupation
Business, R/o Ward No. 22 Dev Nandan Nagar, Phase II, Bilaspur,
Tahsil And District Bilaspur Chhattisgarh., District : Bilaspur,
Chhattisgarh
                                                            ---- Respondent




  For Petitioner             :           Mr. F.S. Khare, Advocate
  For Respondent             :           Ms. Anmol Sharma, Advocate


               Proceedings through Video Conferencing

               S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
                                          Order
01/02/2022

 1. Petitioner-wife has filed this petition seeking transfer of Civil Suit

    No.77-A/2021 from the Court of Additional Principal Judge, Family

    Court, Bilaspur, District- Bilaspur, Chhattisgarh to the Family Court

    at Janjgir Champa, District- Janjgir Champa, Chhattisgarh.


 2. Facts

of the case are that marriage of the petitioner was

solemnized with respondent on 5.12.2014. From their wedlock,

they were blessed with two children, one of which is daughter aged

about one year on the date of filing of this petition. In the petition, it

is further pleaded that petitioner was being treated with cruelty and

in the year 2020, respondent-husband forcefully kept two minor

children snatching from her and left the petitioner to her paternal

house. Petitioner filed an application under Section 125 of Cr.P.C.

as also application under Section 9 of the Hindu Marriage Act,

1955 (for short "Act of 1955") which is pending consideration

before the Family Court at Janjgir-Champa. It is pleaded that it

would be difficult for the petitioner to appear at Family Court,

Bilaspur as she is residing in village and there is no any other elder

member to accompany/escort her to the Court at Bilaspur. Her

father is suffering from illness and brother is minor.

3. Respondent-husband filed reply apposing the pleadings and

further pleaded that the petitioner-wife was not properly residing in

her matrimonial house. She was having some extramarital

relationship and therefore she left her house with another person.

She left two minor children in the custody of respondent. She even

executed an agreement in the month of December 2020 wherein

she categorically mentioned her relationship with another person

and further that she will not claim anything from respondent-

husband and will also not claim upon her two children. After

execution of the said document, application under Section 13 (1) (i-

a) of the Act of 1955 was filed before the Family Court, Bilaspur

seeking dissolution of marriage by a decree of divorce.

Respondent-husband is taking care of minor children. He is

residing with old aged parents and doing business. Hence, it is

prayed, petition for transfer of Civil Suit No.77-A/2021 pending

before Additional Principal Judge, Family Court, Bilaspur to the

Family Court at Janjgir-Champa be dismissed.

4. Shri F.S. Khare, learned counsel for petitioner-wife would submit

that the petitioner approached this Court for transfer of civil suit

pending before the Family Court at Bilaspur to Family Court at

Janjgir-Champa. Allegation levelled against petitioner is to be

decided at Family Court in appropriate proceedings pending before

the Family Court at Bilaspur as well as Family Court at Janjgir-

Champa. The petitioner has filed an application under Section 125

of Cr.P.C. before Principal Judge, Family Court, Janjgir-Champa on

23.2.2021 as also an application under Section 9 of the Act of 1955

for restitution of conjugal rights before Principal Judge, Family

Court Janjgir Champa on the same date i.e. 23.2.2021.

Respondent made his appearance in both the proceedings on

24.8.2021. During pendency of aforementioned proceedings,

petitioner has also moved an application under Guardians and

Wards Act, 1980 before the Family Court at Janjgir-Champa on

24.8.2021 in which also notice has been served upon respondent

and, thereafter, an application under the Protection of Women from

Domestic Violence Act, 2005 before the Chief Judicial Magistrate,

Janjgir-Champa. Even after marking his appearance before the

Family Court on 24.8.2021, respondent has not objected to the

continuance of proceedings at Family Court Janjgir-Champa.

When once respondent appeared before Family Court, Janjgir-

Champa in the cases filed before the Court of competent

jurisdiction at Janjgir-Champa including proceedings under Section

9 of the Act of 1955 for restitution of conjugal rights even

otherwise, it would be proper that one case filed by respondent

under Section 13 (1) (i-a) of the Act of 1955 be transferred to

Family Court at Janjgir-Champa. It will be in the interest of both the

parties that application for divorce and application for restitution of

conjugal rights be considered and decided by the same Court. It is

further argued that the petitioner is a lady, there is no one to

accompany and travel with her from her village, which is away from

the District Headquarters and to come to Bilaspur to attend the

Court proceedings. Petitioner has to first travel to District

Headquarters Janjgir-Champa from her village and thereafter to

take public conveyance, whereas respondent is residing in District

Headquarters at Bilaspur and he is having the facility of direct

conveyance from Bilaspur to Janjgir-Champa. Hence, considering

the aforementioned facts and convenience of the parties, Civil Suit

No.77-A/2021 pending before Additional Principal Judge, Family

Court, Bilaspur be transferred to Family Court at Janjgir Champa.

5. Learned counsel for respondent opposes the submission of

counsel for the petitioner and would submit that it is the respondent

who first filed an application under Section 13 (1) (1-a) of the Act of

1955 seeking dissolution of marriage by granting decree of divorce

and it is only thereafter the petitioner filed two separate

applications one under Section 125 of Cr.P.C. and another under

Section 9 of the Act of 1955 before the Family Court at Janjgir

Champa. Respondent is maintaining his two children and there is

no any other person to take care of them. He is single parent.

Hence, protecting interest of the minor children, the petition be

dismissed. She further submits that only because the petitioner is a

lady and will face some difficulty in travelling from Janjgir-Champa

to Bilaspur will itself not a ground for transfer of the case, more so,

when the facts of extramarital relationship of petitioner appeared

from document executed by the petitioner herself in December

2020. Learned counsel for respondent places reliance upon the

judgment of Hon'ble Supreme Court in the cases of Preeti

Sharma Vs. Manjit Sharma reported in (2005) 11 SCC 535,

Anindita Das Vs. Srijit Das reported in (2006) 9 SCC 197,

Kulwinder Kaur vs. Kandi Friends Education Trust & Ors .

reported in AIR 2008 SC 1333 in support of her contention.

6. I have heard learned counsel for the parties.

7. From pleadings and submissions made by learned counsel for

respective parties, it is apparent that since 2020, both of them

started residing separately. It is also not in dispute that minor

children are residing with the respondent-husband. The allegation

levelled by the petitioner-wife is that respondent-husband snatched

two minor children from her custody and left her in her parental

house. The correctness of allegation levelled against each other by

both the parties is to be decided by jurisdictional Court before

whom the applications have been filed by both the parties. Issue

before this Court is only with respect to transfer of proceedings

pending before Additional Principal Judge, Family Court, Bilaspur

in Civil Suit No.77-A/2021 to the Family Court at Janjgir-Champa.

Submission of learned counsel for petitioner with respect to

pendency of application under Section 125 of Cr.P.C. and

application under Section 9 of the Act of 1955 before Family Court

at Janjgir-Champa is not disputed. In fact it was admitted by

respondent in his reply. During course of arguments, it is pointed

out by learned counsel for petitioner that aforementioned both the

proceedings was filed on 23.2.2021 and respondent also made his

appearance on 24.8.2021. Respondent made his appearance in

Civil Suit No.77-A/2021 filed by him under Section 13 (1) (i-a) of

the Act of 1955 before Family Court, Bilaspur on 20 January 2021

and presumably, before filing 'vakalatnama' after receiving copy of

this Transfer Petition under notice, it came to his knowledge that

two proceedings one under Section 125 of Cr.P.C. and another

under Section 9 of the Act of 1955 filed by the petitioner are

pending before the Family Court at Janjgir-Champa. Respondent is

having no grievance of pending two cases before Family Court

Janjgir-Champa as it is not pleaded nor argued that respondent

has taken any steps of getting those proceedings transferred to

any other Court. Respondent appeared before the Family Court

Janjgir-Champa of which he has received notice. He appeared

before the Family Court Janjgir- Champa on 24.8.2021, then, in the

opinion of this Court, it will not cause any inconvenience to

respondent if Civil Suit No.77-A/2021 filed by him is also

transferred for hearing to Family Court at Janjgir Champa. It will

also be appropriate that both the applications i.e. application under

Section 13 (1) (i-a) and another under Section 9 of the Act of 1955

for restitution of conjugal rights is tried by the same Court. Apart

from aforementioned two proceedings, petitioner has also filed

application under Guardians and Wards Act, 1980 and Protection

of Women from Domestic Violence Act, 2005 as submitted by

counsel for the petitioner, which are also pending before

jurisdictional Court at Janjgir-Champa. With respect to judgments

relied upon by learned counsel for respondent, the ruling of Hon'ble

Supreme Court is to be applied based on facts of each case.

8. True it is that only because the party seeking relief is a lady,

leniency is not to be shown but at the same time, the other grounds

raised are to be considered.

9. In case of Kulwinder Kaur (supra), Hon'ble Supreme Court while

considering application under Section 24 of CPC, observed

multiple instances which could be germane for considering the

prayer of transfer of suit, apart from other proceedings, in which

Hon'ble Supreme Court has considered balance of convenience or

inconvenience to the plaintiff or defendant or witnesses and

convenience or inconvenience of a particular place of trial having

regard to the nature of evidence amongst other. In case at hand, it

is not disputed by counsel for the respondent with respect to

pendency of two other proceedings i.e. one under Section 125 of

Cr.P.C and another under Section 9 of the Act of 1955 filed by the

petitioner-wife before Family Court at Janjgir-Champa and from the

data supplied by counsel for petitioner it is appearing that both the

proceedings were filed on 23.2.2021 in which petitioner caused his

appearance on 24.8.2021 without any objection to the pendency of

proceedings before Family Court Janjgir-Champa. When the

respondent is appearing in two proceedings as mentioned in this

petition and admitted by respondent in his reply and further two

more proceedings have been filed subsequently by the petitioner

with the Court at Janjgir-Champa, no inconvenience will be caused

to respondent if Civil Suit No.77-A/2021 pending before the

Additional Principal Judge, Family Court, Bilaspur is transferred to

the Family Court at Janjgir-Champa. Respondent can make

request to the Court to get all the cases fixed on one date for

hearing.

10.In view of aforementioned discussions, I find it appropriate to allow

the petition and it is accordingly allowed. It is directed that Civil Suit

No.77-A/2021 between Deepak Kumar Sahu Vs. Sandhya Kumari

Sahu shall stand transferred from Additional Principal Judge,

Family Court, Bilaspur, Chhattisgarh, to the Family Court at Janjgir-

Champa, Chhattisgarh.

11. The concerned Family Court at Bilaspur is hereby directed to send

records of Civil Suit No. 77-A/2021 to the Family Court at Janjgir-

Champa forthwith.

Sd/-/---/-/-/-

(Parth Prateem Sahu) Judge

Praveen