The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK TRPCRL No.91 of 2021 Prafulla Kumar Hati …. Petitioner Mr. Goutam Kumar Acharya, Senior Advocate instructed by Mr. S. Sahoo, Advocate -versus- Subhasini @ Subasini Jena @ Hati & Others …. Opp. Parties Mr. J.K. Mishra-2, Advocate CORAM: JUSTICE M.S. SAHOO Order No.
Decision
ORDER 19.04.2023 Hybrid Mode 05. 1. It has been indicated in the cause list that in the order no.4 dated 05.04.2023, the case number has been wrongly typed as “TRPCRL No.91 of 2022” instead of “TRPCRL No.91 of 2021”. Accordingly, it is directed the said typographical error be corrected in the order no.4 dated 05.04.2023 in the heading TRPCRL No.91 of 2021 to be mentioned. Correction in the order sheet be carried out accordingly. 2. The petitioner-husband has filed the petition under Section 24 of the C.P.C. seeking transfer of the Criminal Proceeding No.46 of 2021 pending in the court of learned Judge, Family Court, Jagatsinghpur to the court of learned Judge, Family Court, Jharsuguda or the court of learned S.D.J.M., Jharsuguda. The said petition pending before the learned court at Jagatsinghpur has been filed by the wife // 2 // and two children, aged 13 years and 5 years respectively, being minors represented through their mother guardian under Section 125 of the Cr.P.C. for receiving maintenance from the petitioner-husband/father. 3. It is contended by the learned Senior Counsel on behalf the petitioner that several cases have been filed by the opposite party-wife against the petitioner-husband and his mother and elder brother such as under Section 498(A)/34 of the IPC read with Section 4 of the Dowry Prohibition Act which has been registered as Jharsuguda P.S. No.0488 of 2020, petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 has been filed by the opposite party-wife pending in the court of learned S.D.J.M., Jharsuguda numbered as C.M.C. No.123 of 2020. In the petition filed before this Court, it has been contended by the petitioner-husband that there has been no marriage between the parties and the petitioner and the opposite party no.1 are live-in-relationship since 2007 for which they have been blessed with two sons (opposite party nos.2 and 3). Learned Senior Counsel in his submissions reiterates grounds stated in the petition seeking transfer of the Criminal Proceeding No.46 of 2021 that the opposite party no.1 has given her address in certain cases before the courts to be at Jharsuguda. It is submitted that on the said grounds, the petition is to be allowed directing transfer of the proceeding. However, it is also not disputed that the place of marriage has been shown to be at Jagatsinghpur. 4. It is submitted by the learned counsel for the opposite party-wife that the case referred above said to have been filed under the provisions of the Protection of Women from Domestic Violence Act, 2005 has been withdrawn since Page 2 of 7 // 3 // 08.02.2022. It is submitted that the opposite party-wife is without any employment and income has to fend for herself and she has to maintain the minor children born out of their wedlock. 5. It would be profitable to refer to the relevant Sections of the Cr.P.C., i.e. Sections 125 and 126 of the Cr.P.C. Section 125 of the Cr.P.C. provides as follows: “125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 12- 1978 ). (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,- (a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority; (b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. time direct: Provided time that to Page 3 of 7 // 4 // to comply with (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) If any person so ordered fails without sufficient the order, any such cause Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him. (4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. Section 126 of the Cr.P.C. provides as follows 126. Procedure. (1) Proceedings under section 125 may be taken against any person in any district- (a) where he is, or (b) where he or his wife, resides, or Page 4 of 7 // 5 // (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons- cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper. (3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.” 6. Hon’ble Supreme Court in the decision, Nahar Singh Yadav and another –vs.-Union of India and Others; (2011) 1 SCC 307, dealt with the provisions of Section 406 (2) Cr.P.C. which can be profitably referred to here (Paragraph-29 of SCC) “ xx xx xx 29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 of the Cr.P.C. should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be in exceptional exercised cautiously and Page 5 of 7 // 6 // situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:- (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may the prosecution influence witnesses or cause physical harm to the complainant; (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and non-official witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that the some persons are so hostile that to interfere either directly or indirectly with the course of justice.” interfering or are prosecution they are likely and [Emphasis Supplied] 7. In the considered opinion of this Court and in view of the specific provisions contained in Section 126 of the Cr. P.C., no case is made out by the petitioner for transfer of the proceeding, i.e. Criminal Proceeding No.46 of 2021 pending in the court of learned Judge, Family Court, Jagatsinghpur. Accordingly, the petition is dismissed. Page 6 of 7 // 7 // It is hoped that the parties shall cooperate in resolution of all the cases pending between them. Issue urgent certified copy as per rules. (M.S. Sahoo) Judge jyostna Page 7 of 7