Orissa High Court

Anshuman Pradhan vs Lulipta Beura on 4 August, 2022

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                              IN THE HIGH COURT OF ORISSA AT CUTTACK
                                            TRPCRL No. 37 of 2022

               An application under Section - 407 Cr.P.C for transfer of D.V. Case
               No.38 of 2022 from the Court of the learned S.D.J.M., Talcher, Angul
               to the Court of learned S.D.J.M., Cuttack.

                         Anshuman Pradhan                ....                   Petitioner

                                                      Versus
                         1. Lulipta Beura                ....                  Opp. Party

                         2. Nilamani Pradhan
                         3. Meerarani Pradhan            ....       Proforma Opp. Parties


                    Advocates appeared in this case through Hybrid Mode :

                    For Petitioner                  : Mr. A.P. Bose, Advocate


                    For Opp. Party No.1             : Mr. S.C. Samal, Advocate


                  CORAM:
                       JUSTICE SAVITRI RATHO
               ..................................................................................

Date of Judgment : 04.08.2022 ...................................................................................

Savitri Ratho, J. I have heard Mr. A.P. Bose, learned counsel for the

petitioner and Mr. S.C. Samal, learned counsel for the opp. party

no.1.

2. This transfer application under section 407 of Cr.P.C. has

been filed by the petitioner-husband Anshuman Pradhan for

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transfer of D.V. Case No.38 of 2022 filed by the opp. party No.1 -

wife under Section 12 of the Protection of Women from Domestic

Violence Act (in short "DV Act") in the Court of learned S.D.J.M.,

Talcher, Angul to the Court of learned S.D.J.M., Cuttack.

3. Mr. Bose, learned counsel for the petitioner-husband

submits that the petitioner had earlier filed MAT Case No.125 of

2021 in the Court of learned Civil Judge (Senior Division), Talcher

for a decree of divorce. After receiving notice in the said case,

TRP(C) No.183 of 2021 was filed by the opp. party No.1-wife in

this Court for transfer of the MAT case to the Court of learned

Judge, Family Court, Cuttack. By order dated 08.06.2021, this

Court has allowed the prayer taking note of her submission that

she was staying in Chowdwar with her widow mother and brother

and is dependent on them and it would be difficult for her to move

150 K.Ms. to Talcher to attend the case. But in fact the petitioner is

staying in Talcher by forcibly occupying one room of the house

where the petitioner and his parents were staying. He further

submits that although she had plans of moving to Talcher, the opp.

party No.1 had made false averments and submissions in TRP (C)

No.183 of 2021 in order to cause inconvenience and harassment to

the petitioner. After transfer, the case has been re-registered and

numbered as C.P. No.390 of 2021 in the Court of the learned

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Judge, Family Court Cuttack. The case has been listed on a

number of occasions, but the opp. party No.1 has remained absent

on many dates for which the case is getting adjourned causing

difficulty and inconvenience to the petitioner as he has also to

appear and contest the DV case before the S.D.J.M., Talcher. As it

would be convenient if both the cases are taken up at one place, so

the DV Case should be transferred to the Court of the SDJM

Cuttack. In the alternative, the Civil Proceeding No. 390 of 2021

should be retransferred to Talcher.

4. Mr. Sarat Chandra Samal, learned counsel and his associate

have appeared for the opposite party no.1-wife waiving notice. A

counter affidavit has been filed by her and copy of the same has

been served on learned counsel for the petitioner . This objection

has been sworn before Sri B.K. Nayak, Notary Cuttack Town on

28.06.2022. But instead of filing the certified copy of the order

dated 21.07.2022 in C.P. No.390 of 2021 as undertaken on

25.07.2022, the learned counsel for the opp. party No.1 on

28.07.2022 has filed the true copy of the report of the Counselor ,

Family Court Cuttack alongwith citations. He has submitted that

the opp. party No.1 has not made any false averments or

submissions in the transfer application filed by her earlier and she

not filed the DV case in Talcher to harass the petitioner but because

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she is interested for reunification. In the counter affidavit it has

been interalia stated that at the time of filing of TRP(C) No. 183 of

2021, she has spent five six months phase wise in Choudwar and

she and her daughter were staying there with her widow mother and

brother. But after that , she has moved to Talcher and is staying in

her in laws house with her daughter, as her mother and brother are

now residing in Bangalore where he is working and it would have

been cumbersome and hazardous for her to reside in her parental

house with her young daughter. It has been further averred that she

is residing in her in laws house since 29.12.2021 till date and four

sessions of counselling have been done after which the concerned

counselor has come to the conclusion that the opp. party is

interested for re-unification and one more home visit was necessary

and on. 21.07.2022, the conciliation process has been closed basing

on the report of the counselor and the case was posted to

03.08.2022 for hearing of the I.A. filed by her. It has also been

averred that the petitioner is not co-operating and in order to harass

her has locked the other rooms in his house and left the house with

other family members. He has also submitted that the petitioner and

opp. parties No. 2 and 3 permanently residing within the territorial

jurisdiction of the learned S.D.J.M., Talcher and the opp. party no.1

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is also residing there for which the case should not be transferred to

Cuttack .

5. Perusal of the order dated 08.06.2021 passed in TRP(C)

No.183 of 2021 indicates that transfer has been granted on the

ground that opp. party No.1-wife is an un-employed lady and is

dependant on her parents residing at Tinikonia Bazar, Parida Sahi,

P.O./P.S.-Chowdar, District : Cuttack and with a one year girl

child and it is difficult on her part to bear the travelling expenses

and other related expenditure for attending the proceeding pending

in the Court of the learned Civil Judge (Senior Division), Talcher

and in view of the financial status of the opp. party No.1-wife, this

Court observed that there would be no difficulty, if the case of the

petitioner-husband is transferred to the Court of the learned Judge,

Family Court, Cuttack.

Perusal of Annexure-A/1 series of the counter affidavit filed

on behalf of opp. party No.1 reveals that the opp. party No.1 had

not appeared in the case on 02.12.2021 and 22.12.2021 and on

21.4.2022 the case was fixed "To sort out the dispute as far as

reunion is concerned". Thereafter the case was posted to

21.07.2022 for counselling. But learned counsel for the opp. party

No.1 has not filed the copy of the order.

6. The DV Act is "An Act to provide for more effective protection of the rights of women guaranteed under the

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Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto" ...

Section 2 (i) of the DV Act defines "Magistrate" to be

" the Judicial Magistrate of the first class or as the case may be the Metropolitan Magistrate exercising under the Code of Criminal Procedure 1973 ( 2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place ."

The petitioner is a permanent resident of Talcher and the

opp. party No.1 claims to be residing in Talcher. The opp. parties

No.2 and 3 are also residents of Talcher.

7. After hearing the learned counsels for the parties and

keeping in view the object for which the DV Act has been enacted,

I do not think this to be fit a case to direct for transfer of the DV

Misc Case to the Court of the learned Judge, Family Court, Cuttack

at present as the petitioner is a resident of Talcher and the opp.

party No.1 claims to be permanently residing in Talcher and she

will face inconvenience if she has to come Cuttack to contest the

case.

8. But it is apparent that the petitioner is facing inconvenience