Sarika Dhiman vs State Of J&K And Others
2021 Latest Caselaw 752 j&K

                                                   S.No.229
      IN THE HIGH COURT OF JAMMU AND KASHMIR
                     AT JAMMU


                          TrP (Crl) No.31/2019

                           CrlM No.891/2019


Sarika Dhiman                                       ...PETITIONER(S)

          Through: Mr. A.K.Sawhney, Advocate

Vs.

State of J&K and others                           ....RESPONDENT(S)

          Through: None


CORAM:HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                JUDGMENT

1. Through the medium of this petition, the petitioner seeks transfer

of the criminal challan/charge-sheet titled State v. Rakesh Dhiman and

others under Sections 498-A, 323 & 109 RPC pending in the Court of

learned Munsiff, Jammu to any other Court of competent Jurisdiction at

Rajouri on the ground that the petitioner is residing at Rajouri with her

parents and, therefore, it is difficult for her to pursue her complaint at

Jammu.

2. On 30.06.2021, learned senior counsel appearing for respondent

Nos. 2 to 4 submitted that he will seek instructions from his clients and

accordingly, the matter was adjourned for 6th July, 2021. On 6th July,

2021, respondents remained unrepresented, therefore, arguments of

learned counsel for the petitioner were heard in absence of respondents

and the matter was kept for arguments by the respondents on 13 th July,

2021. On 13.07.2021, there was no representation on behalf of the

parties and the matter was directed to be listed on 19 th July, 2021. On

19th July, 2021, again there was no representation on behalf of the

parties, therefore, awaiting appearance of the counsel for the

respondents, the matter was adjourned to 26th July, 2021. Today also,

no one appeared on behalf of the respondents when the case was called

out.

3. It is pleaded by the petitioner that respondent Nos. 2 to 4 have

thrown her out of her in-laws house after inflicting cruelties upon her.

The petitioner was, thus, left with no option but to take shelter at her

parental house which is in district Rajouri. The petitioner lodged a

complaint in the Police Station, Rajouri but they did not register the

FIR, whereafter she moved a complaint before the learned Chief

Judicial Magistrate, Rajouri, in which SHO, Police Station, Rajouri was

directed to take action under law. The SHO, Police Station, Rajouri

after recording statement of the petitioner transferred the case to SHO,

Police Station, Gandhi Nagar on the ground that the occurrence is of

Jammu. Accordingly, FIR No.5/2016 under Sections 498-A, 323 RPC

was registered in Police Station, Gandhi Nagar, Jammu and the

investigation was set in motion. After completing the investigation,

charge-sheet stands filed in the Court, which is now pending in the

Court of Judicial Magistrate 1st Class (Munsiff), Jammu.

4. It is submitted that not only the petitioner but all other witnesses

are based in Rajouri and it is not possible for the petitioner to pursue

her case at Jammu while residing at Rajouri. The petitioner has also

placed on record a copy of order dated 01.07.2019 passed by this Court

in CTA No.47/2018, whereby divorce petition filed by respondent

No.2, stands transferred to Rajouri.

5. It is well settled that in matrimonial disputes, while considering

transfer petitions, the convenience of the wife has to be preferred over

the convenience of the husband.

6. In a recent judgment rendered in the case of Rupali Devi v. State

of Uttar Pradesh and others, AIR 2019 SC 1790, Hon'ble the

Supreme Court has held that the wife has a right to file criminal

complaint at any place she resides after leaving matrimonial home.

7. A perusal of order dated 01.07.2019 passed in a transfer petition

filed by the petitioner seeking transfer of divorce petition from Jammu

to Rajouri reveals that no objection was conveyed by the husband for

transfer of the divorce petition from Jammu to Rajouri.

8. In view of the above discussion, it would be appropriate to

transfer the criminal challan from the file of Judicial Magistrate 1st

Class (Munsiff), Jammu to the Chief Judicial Magistrate, Rajouri, who

shall try the same itself or assign it to any other Magistrate of

competent jurisdiction.

Ordered accordingly.

9. The application stands allowed. Learned Judicial Magistrate 1st

Class (Munsiff), Jammu shall transmit the record of the case to the

Chief Judicial Magistrate, Rajouri forthwith.

(Vinod Chatterji Koul) Judge Jammu 26.07.2021 "Vinod, PS"

                                        Whether the order is speaking:          Yes/No
                                        Whether the order is reportable:        Yes/No




VINOD KUMAR
2021.07.27 10:40
I attest to the accuracy and
integrity of this document