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Judgment
Rahul Chaturvedi, J
Heard Shri Dharampal Singh, learned Senior Advocate, assisted by Sri Virendra Singh, learned counsels for the applicants, Shri Anoop Trivedi, learned Senior Counsel for the opposite party and learned A.G.A. representing State at length and perused the records.
There are two connected transfer applications, bearing Transfer Application No.225 of 2018 and 226 of 2018 between the same parties and thus for the sake of convenience, both the aforesaid transfer applications are being decided by one and common judgment.
By means of Criminal Misc. Transfer Application No. 225/2018, the applicant, Amit Kumar Patel, sought transfer of Case No.448/2016 (Smt. Manisha Patel Vs. Amit Kumar Patel) under Section 12 of the Protection of Women from Domestic Violence Act, 2005, pending in the court of Judicial Magistrate, Pilibhit to some competent court of judgeship of District Rampur, whereas by means of Criminal Misc. Transfer Application No. 226 of 2018, the said applicant, Amit Kumar Patel has sought transfer of Case No. 63/2016 (Smt. Manisha Patel and another Vs. Amit Kumar Patel) under Section 125 Cr.P.C. pending in the court of Principal Judge, Family Court, Pilibhit to the judge of competent jurisdiction in the judgeship at Rampur, keeping in view that Divorce Petition no. 630/2015 is also being tried before the same judge by the order of High Court dated 20.4.2018.
It is imperative to spell out the bare skeleton facts for the proper adjudication of present criminal controversy.
It is argued by the counsel for the applicant that the contesting parties got married on 3rd of December, 2011 at Allahabad according to the Hindu rites and customs. The applicant-Amit Kumar Patel is permanent resident of Shiv Puri Marg, Allapur, Allahabad, presently gainfully employed at Sr. Test Lead, Nucleus Software Pvt. Ltd., 300, Tamphines Avenue, 5 # 4-6 Tamphinies Junction, Singapore-529653. This wedlock blessed with a baby Mannya Patel(minor), who is with her mother. Unfortunately, this wedlock could not last for long and the parties came at the logger heads. Resultantly, the applicant Amit Kumar Patel has filed a divorce petition no. 630/2015 on 9.10.2015 in the court of Principal Judge, Family Court, Gautam Budh Nagar, seeking divorce from his wife. The wife Manisha Patel contested the same after putting her appearance on 22.8.17 and on 6.10.17 she moved an application U/s 24 of Hindu Marriage Act seeking interim maintenance from her husband. Thereafter, the wife Manisha Patel approached this court by filing Transfer Application (Civil) No. 24/2018 to get the above mentioned divorce suit transferred from Gautam Budh Nagar to District Pilibhit. The said Transfer Application was contested by the rivals and this court vide order dated 20.4.2018 has allowed the same, transferring the Divorce Petition No. 630/2015 (Amit Kumar Patel Vs. Manisha Patel), pending before Principal Judge, Family Court, Gautam Budh Nagar to the competent court at District Rampur judgeship forthwith, subject to the condition that Amit Kumar Patel would pay the opposite party Smt. Manisha Patel a sum of Rs. 3,000/- on each date of her appearance in the divorce proceeding before the transferee court.
Though during arguments, it was given to understand that the aforesaid judgment of this court was challenged before Hon'ble Supreme Court by means of SLP No. 17513/2018 but the same was withdrawn with liberty to file a review application before the said court. But the fact remains, that till today there is no interim order was passed in favour of Smt. Manisha Patel, either from Hon'ble Apex Court or from this Court and the divorce petition is still pending before competent family court and proceeding unabetted at Judgeship at Rampur.
In this backdrop of the case, the applicant Amit Kumar Patel is seeking a transfer of above mentioned two proceedings, i.e. U/s 12 of Protection of Women from Domestic Violence Act, 2005 as well as proceeding U/s 125 Cr.P.C. from District Pilibhit to District Rampur.
It is contended by the counsel for the applicant that on 2.3.2016, Smt. Manisha Patel filed an application U/s 12 of Protection of Women from Domestic Violence Act, 2005 against the applicant in the Court of Addl. Chief Judicial Magistrate, Court No.2, Pilibhit, as she is residing with her father, Shri Yashwant Singh, and Practising Advocate at Pilibhit. This was numbered as Complaint Case No. 672/2016 and was transferred before Judicial Magistrate, Pilibhit and was renumbered as Case No. 468/2016 in which the applicant has submitted his written statement on 22.8.2016 and 15.11.2016 respectively by the both respondents separately.
Not only this, the opposite party, Manisha Patel, also filed an application U/s 125 Cr.P.C. on 18.3.2016 claiming maintenance from her husband and the said application was registered as Case No. 63/2016 in the court of Principal Judge, Family Court, Pilibhit and the matter is pending before Principal Judge, Family Court, Pilibhit.
The grounds of transfer taken by the learned counsel for the applicant are:- (A) that since the divorce petition between the parties has already been transferred by coordinate bench of this court vide judgment dated 20.4.2018 to Principal Family Judge at Rampur Judgeship and thus in order to save the multiplicity and plurality of forums and for the sake of convenience of both the parties, let both the proceedings U/s 125 Cr.P.C. as well as proceeding U/s 12 of Protection of Women from Domestic Violence Act, 2005 may be transferred to District Rampur. (B) The father of the opposite party, Shri Yashwant Singh, Advocate is practicing Advocate at Pilibhit judgeship and his conduct is very insulting and he often indulged into slagging with the applicant and his father as and when they visit to Pilibhit and the applicant is not feeling comfortable and safe in appearing at Pilibhit judgeship. The father of Smt. Manisha Patel often yield pressure upon the court and submitted by the counsel for the applicant that a fair opportunity of an 'even play ground' should be provided to the contesting parties of the case.
Per-contra, Sri Anoop Trivedi, learned counsel for opposite party has refuted the submissions made by counsel for the applicant with vehemence. Shri Yashwant Singh, Advocate has filed counter affidavit on behalf of his daughter Manisha Patel, leveling number of counter allegations against the applicant, Amit Kumar Patel.
It was submitted by the respondent counsel in his counter affidavit that wife- respondent did not avail any relief on account of delaying tactics adopted by the applicant in the aforementioned proceedings. It is further submitted in the counter affidavit that it is wrong to say that her father has anywhere influenced the counsel or indulged in any short of pressure mounting tactics upon the presiding officer or any other person/counsel. Fact remains, her father is an aged old person/counsel. suffering from number of age related ailments. Medical Prescriptions is filed as Annexure No. CA-9 to the counter affidavit. It is difficult for her to carry her minor daughter to Rampur on every date.
Learned counsel for the opposite party has relied upon certain judgments that the convenience of wife should be taken in to account and is of the paramount consideration. The counsel for the applicant in support of his contention has cited number of judgments of Hon'ble Apex Court as well as different High Courts; namely; Vandana Sharma Vs. Rakesh Kumar Sharma 2008 (4) Civil Court Cases, 522, Swornjeet Singh Kaur Vs. Swornjeet Singh Sodhi and various cases of the High Courts in this regard.
I have perused the judgments and I am in complete agreement with the ratio lay down by the Hon'ble Apex Court in these cases, but I am afraid that the facts and circumstances of the present case is entirely different and distinct from those cases. In the present case, the divorce petition has already been transferred to Rampur Judgeship by the orders of this Court dated 20.4.2018 and pursuant to the aforesaid order, the cases have been transferred from Gautam Budh Nagar to Rampur and that judgment of this Court is still operational.
Learned Counsel for opposite party has further relied upon yet another judgment; Vaishali Shridhar Jagtap Vs. Shridhar Vishwanath Jagtap, reported in 2016 (4) Civil Court Cases, 210 with regard to the ratio that transfer of some cases to one judgeship would not be ground of transfer.
I have gone through the facts of the aforementioned case. The facts of the case are distinct and different. In the present case, the divorce petition was moved at Gautam Budh Nagar and the motion moved by the opposite party for the transfer, this coordinate bench of this Court after hearing the counsels for the contesting parties and after guadging the comparative hardship, thought it proper to transfer the case from Gautam Budh Nagar to Rampur judgeship. The distance between Pilibhit and Rampur is barely 100-110 Kms., a run of 2 hours by car. The applicant resides in Allahabad, he will have to visit Rampur to attend the cases of divorce and simultaneously he would also attend the cases of Domestic Violence Act and proceedings U/s 125 Cr.P.C. It is given to understand that 125 Cr.P.C. proceeding is also pending in Family Court Pilibhit and same would be transferred to Family Court, Rampur, where the divorce petition between the parties is pending. Besides this, both the parties would have a 'level play ground' to contest the case which is the basic and fundamental idea of 407 Cr.P.C. The provisions U/s 407(1)(a) Cr.P.C. reads thus:-
Whenever it is made to appear to the High Court :-
that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto;???
The Parliament has employed the word "fair and impartial trial" with the obvious objects that the accused should not be prejudiced, i.e. free from injustice, prejudice or favoritism. The law requires that the application for transfer can be moved when the applicant has every reason for apprehend that he would not get equal treatment with the opposite party or the opposite party stand on a advantageous position qua his opponent. This provision emanates from a Latin maxim "Actus Curiae Neminem Gravabit" which means that an act of the court shall prejudice no men. In the present case, the father of the opposite party is a practicing lawyer at Pilibhit Judgeship and the applicant has got a reasonable apprehension that by virtue of being Advocate at Pilibhit, he may not get justice or will face rough weather at Pilibhit during the trial of aforementioned two cases coupled with the fact, that the case i.e. Divorce Petition has already been transferred to Rampur vide order dated 20.4.2018 then in all fairness and fitness of the circumstance, these aforementioned two criminal cases namely; Case No. 448/2016 (Smt. Manisha Patel Vs. Amit Kumar Patel) U/s 12 of the Protection of Women from Domestic Violence Act, 2005 and Case No. 63/2016 (Smt. Manisha Patel and another Vs. Amit Kumar Patel) U/s 125 Cr.P.C. should also be tried along with divorce case within a specific time frame, provided the contesting parties fully cooperate and extend all desirable assistance to the court concern for the speedy disposal of the case.
Under the circumstances, the present two transfer applications stand allowed and both the cases are transferred to corresponding courts at Rampur Judgeship. It is given to understand that proceeding U/s 125 Cr.P.C. is pending before Principal Judge, Family Court, Pilibhit and same may be adjudicated by the Principal Judge, Family Court Rampur where the divorce petition between the parties is pending. So far as the proceeding U/s 12 of the Domestic Violence Act may also be transferred to the corresponding court of Rampur Judgeship. It is expected from the Presiding judges that they would gear up the trial and would make all necessary endeavor to conclude the same within a period of one year after the receipt of records from Pilibhit, provided contesting parties undertakes that they would render all necessary cooperation and assistance in the early conclusion of cases within aforementioned period and would not take unwarranted and unnecessary adjournments in the matter.
Both the transfer applications, accordingly, stand allowed.