Ankita Bhati vs Dev Raj Singh Bhati

2023 INSC 643 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL/CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO. 1770 OF 2021

ANKITA BHATI Petitioner(s)

VERSUS

DEV RAJ SINGH BHATI Respondent(s)

WITH

TRANSFER PETITION (CRIMINAL) NO. 659 OF 2019

J U D G M E N T

ABHAY S. OKA, J.

1. Heard the learned counsel appearing for the

petitioner and the learned senior counsel appearing for

the respondent.

2. This is a usual case where a matrimonial dispute

which resulted in multiple cases being filed by the

parties. Though an effort was made to arrive at a

mediated settlement, perhaps the parties have not seen

the reason and therefore, the mediation has failed.

3. Both the Transfer Petitions are filed by the wife Signature Not Verified Digitally signed by Anita Malhotra Date: 2023.07.24 which are strongly opposed by the husband. There are 17:20:21 IST Reason:

multiple proceedings pending as stated above. The wife

Transfer Petition (C)No.1770/2021 1/7 has filed a maintenance petition under Section 18 of the

Hindu Adoption and Maintenance Act, 1956 which is pending

before the Additional District Judge at Solan, Himachal

Pradesh. Apart from that, there is a complaint filed by

her under the Protection of Women from Domestic Violence

Act, 2005 which is also pending in the Court of the

Judicial Magistrate at Solan. There is one more case

which is a petition under Section 125 of the Code of

Criminal Procedure, 1973 filed by the wife which is

pending in the Court of the learned Chief Judicial

Magistrate at Kasauli, District Solan, Himachal Pradesh.

Lastly, there is a criminal case pending in the Court of

the Chief Judicial Magistrate, Jaisalmer, Rajasthan which

is on the basis of a First Information Report lodged by

the wife for the offences punishable under Section 323,

341 and 498A of Indian Penal Code, 1860.

4. Transfer Petition (Civil)No.1770 of 2021 is in

respect of one more case which is filed by the husband,

which is pending in the Family Court at Jaisalmer,

Rajasthan, which is a petition for divorce. Transfer

Petition (Criminal) No. 659 of 2019 is filed by the wife

seeking transfer of the criminal case pending at

Jaisalmer which arises out of a First Information Report

lodged by her. Thus, there are more than one cases

pending in the Courts in District Solan, Himachal Pradesh

Transfer Petition (C)No.1770/2021 2/7 filed at the instance of the wife. The respondent-husband

is attending those cases and he has not sought transfer

of those cases.

5. The learned senior counsel appearing for the

respondent has not raised serious issue about transfer of

the petition for divorce filed by the husband. However,

his serious objection is to the transfer of the criminal

case which is pending in the Court at Jaisalmer,

Rajasthan to the Court of the learned Chief Judicial

Magistrate, Kasauli, District Solan, Himachal Pradesh.

His first submission is that the State Government is not

made a party to the Transfer Petition. The second

submission is that the trial has commenced in the sense

that the charge has been framed. His third submission is

based on a decision of this Court in Jyoti Mishra v.

Dhananjay Mishra1. His fourth submission is based on

another decision of this Court in the case of Nahar Singh

Yadav and Anr. v. Union of India and Ors.2

6. It cannot be disputed that the criminal case

pending in the Court at Jaisalmer arises out of the

matrimonial dispute. We must note here that as far as the

exercise of jurisdiction under Section 25 of the Code of

Civil Procedure, 1908 and Section 406 of the Code of

1(2010) 8 SCC 803 2(2011) 1 SCC 307

Transfer Petition (C)No.1770/2021 3/7 Criminal Procedure, 1973 is concerned, it all depends on

facts and circumstances of each case. The consistent view

taken by this Court is that normally the convenience of

wife is to be seen when the cases arise out of

matrimonial dispute. In exceptional cases where the facts

are glaring, a departure can be made from this normal

rule.

7. The decision in the case of Jyoti Mishra1 is in the

facts of the case. This Court noticed that that apart

from the husband, there were other accused in the case

which were not made parties to the Transfer Petition. The

second reason why this Court did not accede to the prayer

of transfer was that the respondent-accused will not be

in a position to attend the proceedings at Indore, Madhya

Pradesh where the case was sought to be transferred for

the various reasons. The Court discussed the consequences

of non-appearance of an accused in a criminal case.

8. In the facts of this case, it is not the contention

of the respondent that there are other accused who are

not impleaded as parties. Secondly, the respondent-

husband is attending to atleast two proceedings filed by

the wife in the Courts in District Solan, Himachal

Pradesh. Moreover, in a criminal case arising out of

matrimonial dispute, the Court can always grant exemption

from personal appearance to the accused and his presence

Transfer Petition (C)No.1770/2021 4/7 can be procured only when it is absolutely necessary. The

possible prejudice to the husband can be always minimized

by directing that as far as possible, all cases should be

kept on the same day.

9. Now coming to the case of Nahar Singh Yadav2, we may

note here that the transfer of case was sought in a

prosecution filed by Central Bureau of Investigation for

a very serious offences. Paragraph 21 relied upon by the

learned senior counsel appearing for the respondent deals

with the contingency where after transfer, the accused

may not get fair trial. In this case, there is nothing

placed on record to show that after the transfer of the

case, the respondent will not get a fair trial. In

Paragraph 22, this Court discusses the possibility of

sending wrong signals by transferring the trial, as it

may reflect on the Court in which the case was originally

pending. This becomes relevant when the transfer is

sought to be effected by making allegations against the

Court or the Judge. In this case, the transfer is sought

purely on the ground of the convenience of the

petitioner-wife. When there are multiple proceedings

between the husband and wife arising out of a matrimonial

dispute, in fact, such transfer is in the interests of

husband, as all cases between the parties will be heard

at the same place. Therefore, we cannot accept the

Transfer Petition (C)No.1770/2021 5/7 objections raised by the learned senior counsel appearing

for the respondent, while opposing the prayer for the

transfer of the criminal case.

10. Even if we pass order of transfer, the State will

hardly be affected, considering the nature of the

criminal proceedings. Therefore, in the facts of the

case, we do not agree with the submission that the State

is a necessary party. The complainant and accused are

before the Court.

11. Accordingly we pass the following order:

(i) Transfer Petition (C) No.1770 of 2021 is

allowed. Accordingly, Divorce Petition No.7 of

2021 titled "Dev Raj Singh Bhati v. Ankita

Bhati", pending before the Family Court,

Jaisalmer, Rajasthan is ordered to be transferred

to the District Judge, Family Court, Solan,

Himachal Pradesh;

(ii) Transfer Petition (Criminal)No.659 of 2019

is allowed. Accordingly, Criminal Case No.393 of

2019 titled "State v. Dev Raj Singh", pending

before the Chief Judicial Magistrate, Jaisalmer,

Rajasthan is ordered to be transferred to the

Chief Judicial Magistrate, Kasauli, district

Solan, Himachal Pradesh;

Transfer Petition (C)No.1770/2021 6/7

(iii)The Court to which criminal case mentioned

in clause (ii) above is transferred, shall

endeavour to fix the same date in the criminal

case which is fixed in the other matters pending

in the Courts at Solan, Himachal Pradesh; and

(iv) On a formal application being made by the

respondent-husband, the transferee Court will

grant exemption to the respondent-husband from

personal appearance, subject to the condition

that whenever the said Court passes an order

requiring his personal presence, he shall

personally remain present in the Court.

..........................J. (ABHAY S.OKA)

..........................J. (SANJAY KAROL)

NEW DELHI;

July 13, 2023.

Transfer Petition (C)No.1770/2021 7/7