Mohd. Shafi vs Iram Jaan on 29 December, 2017

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CRTA No. 15/2016 connected MPs

Date of decision:29.12.2017

Mohd. Shafi V Iram Jaan
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta

Appearing counsel:

For the petitioner(s) : Mr. K.L. Pandita, Advocate.
For the Respondents(s) : None.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal

1. The instant application has been moved under Section 526 of Code of
Criminal Procedure, 1989 with a prayer to transfer the application filed by
the respondent under
Section 489 of Code of Criminal Procedure, 1989
under titled, “Iram Jaan Vs. Mohd. Shafi” from the Court of learned
Chief Judicial Magistrate, Kishtwar to any other Court of equal jurisdiction
either at Banihal, Ramban or Jammu.

2. The grounds taken in the application are that one-Parveen Akhter got
married to petitioner and out of wedlock, the respondent namely, Iram Jaan
was born. It was because of some matrimonial dispute between the
petitioner and Parveen Akhter (mother of the respondent), the marriage
was dissolved after prolonged litigation and “Talaqnama” was presented
by the petitioner and accepted by the mother of the respondent. Before
that, a Suit was filed by the petitioner for restitution of conjugal rights in
the Court of learned Munsiff, Banihal and the respondent had also filed a
Suit of recovery on account of Dower in the Court of learned Additional
District Judge, Kishtwar though there was a constant threat given by the
mother and step-father of the respondent to the petitioner for his

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appearance in the Court of learned Additional District Judge, Kishtwar and
the petitioner had sought the transfer of the said Suit from the Court of
learned Additional District Judge, Kishtwar by filing a Civil Transfer
Application in the Hon’ble High Court of Jammu and Kashmir, which was
registered as CTA Nos. 28/2005 and 29/2005, which were finally decided
against the petitioner and thereafter, the said marriage was dissolved
between the petitioner and the mother of the respondent and the dower was
paid by the petitioner.

3. Now both the petitioner and the mother of the respondent have re-married
and the petitioner also requested the respondent to live with him, which
was not allowed by the mother and the step-father of the respondent and
now, the respondent by concealing and miss-stating the facts has presented
an application under
Section 489 in the Court of learned Chief Judicial
Magistrate, Kishtwar, in which the petitioner was summoned by the
learned Chief Judicial Magistrate, Kishtwar. The mother of the respondent
is also a working lady and is working in PHE Department and in addition
to that, she has no liability except the respondent, to whom she can
properly maintained.

4. The applicant/petitioner in the instant application under Section 488 has
consented to pay the amount, which was directed by the learned Chief
Judicial Magistrate, Kishtwar and the petitioner has paid the amount. Now
the respondent has presented another application under
Section 489 for the
enhancement of allowance. The petitioner is having a problem in the right
knee and is not in a position to walk and travel such a long distance, as has
been authenticated by the Medical Certificate (Annexure-C) dated 04th
April, 2016 issued by the Medical Officer, Banihal.

5. When the respondent was minor in the year 2010, the petitioner had also
presented an application before the learned District and Sessions Judge,
Ramban for the appointment of guardian of respondent under Section 7 of

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Guardians and Wards Act, which was decided by the learned District and
Sessions Judge on 26th September, 2011. The petitioner from time to time
has repeatedly approached the respondent, who is now major with a
request to live with the petitioner and she was ready to do so, but the
mother and step-father of the respondent did not allow her to live with the
petitioner and the monthly allowance, which is being received by the
respondent is being misused by the mother of the respondent and the
unfortunate part of this is that the respondent is not physically well and the
petitioner is ready to get her treated from a good medical institution, but
the mother and step-father of the respondent are not allowing her to join
with the petitioner and are unnecessarily threatening and harassing the
petitioner on each and every date of hearing in convenience with some
local goons

6. Objections have been filed on behalf of the respondent, stating therein that
the divorce of the petitioner with the mother of respondent is admitted,
however, it is denied that the mother of respondent and step-father gave
threat to the petitioner for his appearance in a Suit for recovery of dower
before the learned Additional District Judge, Kishtwar. On concocted,
false and frivolous facts of threat perception, the petitioner has filed the
aforesaid Transfer Applications before the Hon’ble Court, which were
dismissed by the Hon’ble Court vide its judgment (Annexure-R-1) dated
03rd March, 2006. The re-marriage between the petitioner and the mother
of the respondent is also admitted, however, it is stated that the petitioner
has not made any effort to keep his daughter with him on the pretext that
had it been son, he would have kept him with him. The petitioner also did
not perform his duty of a father by giving any maintenance for the welfare
of respondent, which compelled the mother of the respondent to approach
the learned Trial Court for maintenance of her minor daughter and the
Hon’ble Court of learned CJM, Kishtwar vide its order dated 23rd

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December, 2008 awarded maintenance by Rs.700/- per month to the
respondent, which was subsequently enhanced to Rs.1600/- per month in
National Lok Adalat on 23rd November, 2013 and now vide application
dated 11th September, 2015 under
Section 489 Cr.P.C, the respondent
sought enhancement of maintenance on the pretext that she has suffered
chronic disease of Cancer and is undergoing Chemotherapy, which is a
very costly affair and has produced medical record in this context. The
respondent in her application further submitted that the petitioner’s salary
has also been enhanced to more than Rs. 50,000/- and it is in fact
impossible for the respondent to save her life with the meager amount of
maintenance, coupled with the fact that she is reading in higher classes and
it is difficult for her to bear the expenses of treatment, livelihood and
studies. The order (Annexure R-2) dated 23rd November, 2013 and the
Communication (Annexure-R-3) dated 27th December, 2013 issued under
RTI Act, evidencing the salary of the petitioner in the year 2013 as about
Rs. 40,000/-.

7. It is further submitted in the objections that in the proceedings under
Section 488 Cr. P.C., the petitioner need not have to appear before the
Trial Court on each and every date and the proceedings in this regard, will
be conducted by duly appointed counsel. The knee problem is no excuse
in this regard. Moreover, the petitioner has enclosed a routine certificate of
Medical Practitioner and no such opinion has been given by the Standing
Medical Board. The said Certificate has been issued by the Assistant
Surgeon, who has no expertise in Orthopedics. During the period, when
the respondent was minor, the petitioner had not made any sincere and
honest effort to reside with her (respondent) and only her mother and
maternal uncles supported her during the period of crisis, but now, the
respondent is major and is wise enough to take conscious decisions
regarding her life and the mother of the respondent never forced her for

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anything. If the petitioner is so magnanimous, he instead of contesting the
litigation can give suitable amount for medicare and higher education of
respondent, but he is doing nothing except lip service. The respondent has
again reiterated the same contents of pressure from local goons and non-
acceptance of his brief by any local lawyer due to influence of
respondent’s mother and her relatives, which has already been taken by
him in the aforesaid Transfer Applications, which were dismissed by the
Hon’ble Court vide order dated 03rd February, 2006 and thereafter, the
petitioner visited Kishtwar number of times and attended the Court along
with his counsel, which is even evident from the orders (Annexure-D)
dated 23rd December, 2008 23rd November, 2013.

8. It is also submitted in the objections that the mother of the respondent and
her maternal uncles are petty employees and have no such influence over
anybody, which will deter any Advocate in Kishtwar to refuse to take brief
of the petitioner. The petitioner only intention to drag the proceedings and
nothing else. The petitioner has deliberately concealed the material fact
from the Hon’ble Court that he has already engaged an Advocate, namely,
Mr. I.J. Charak to contest his case before the learned CJM, Kishtwar, who
has also filed detailed objections (Annexure-R-5) dated 16th May, 2016 to
the application by the respondent under
Section 489 Cr.P.C.

9. In the objections, it has also been stated that the grounds of filing instant
Transfer Application is the repetition of the contents of various paras of
Transfer Application, which stand already replied in detail herein the
preceding paras and the same are reiterated herein as reply to the grounds
of challenge for the sake of brevity and to avoid repetition. As prayed by
the petitioner, if the case will be transferred to Banihal, Ramban or Jammu,
then it will cause substantial irreparable loss and great hardship to the
respondent, who is merely 20 years of age and is suffering from chronic
disease of cancer. The petitioner has lost sight of the fact that he is only

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suffering with a mild knee problem, but on the other hand, his daughter is
suffering from Cancer and he is seeking transfer of application of
respondent either to Banihal, Ramban or Jammu, which is far away from
Kishtwar.

10. I have considered the rival contentions and law on the subject.

11. High court has power to transfer criminal case from one sessions divisions
to any other sessions division in terms of
section 526 of CR.P.C. For
facility of reference,
Section 526 of CR.P.C is reproduced as under:-

“526. High Court may transfer case or itself try it.- (1) whenever
it is made to appear to the High Court-

(a) that a fair and impartial inquiry or trial cannot be had in any
Criminal Court subordinate thereto ; or

(b) that some question of law of unusual difficulty is likely to
arise; or

(c) that a view of the place in or near which any offence has been
committed may be required for the satisfactory inquiry into or
trial of the same; or

(d) that an order under this Section will tend to the general
convenience of the parties or witness ; or

(e) that such an order is expedient for the ends of justice, or is
required by any provision of this Code, it may order-

(i) that any offence be inquired into or tried by any Court not
empowered under Sections 177 to 184 (both inclusive), but in
other respects competent to inquire into or try such offence ;

(ii) that any particular case or appeal, or class of cases or
appeals, be transferred from. a Criminal Court subordinate to its
authority to any other such Criminal Court of equal or superior
jurisdiction ;

(iii) that any particular case or appeal be transferred to and tried
before itself; or”

12. Bare perusal of this Section, it is evident that High court has power to
transfer criminal case from one sessions division to another sessions
divisions on the grounds that a fair and impartial inquiry or trial cannot be

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possible in any subordinate criminal court; and for the general
convenience of the parties or witnesses; that Criminal case can be
transferred when it appears that an order about such transfer can be
expedient for ends of justice and for promotion of ends of justice. These
are some of valid grounds for transfer. There are also other grounds
which the High Court can think proper in the facts of circumstances of
particular case. But these powers are not to be exercised as a matter of
routine or at the wishes of party seeking transfer of case. These powers
have to be exercised sparingly by this court .

13. In family matter and especially in maintenance proceedings, the
convenience of claimant/s is utmost important. Because it is claimant/s,
who is/are sufferer; she/they cannot be further burdened for additional
charges for travelling from place of residence to another place far flung
from place of residence to prosecute the case; in present case respondent/
claimant is residence of District Kishatwar and District Ramban is
situated at a distance of more than 100 kms from Kishawar; and in case
petition u/s 489
Cr.P.C. filed by respondent/claimant is transferred from
Kishatwar to Ramban, then it is the respondent/claimant, who will suffer
more inconvenience than the petitioner.

14. Therefore this petition has no merit; it is thus dismissed. Stay, if any, is
vacated.

(Sanjay Kumar Gupta)
Judge
Jammu,
29.12.2017
Narinder

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This judgment is pronounced by me in terms of Rule 138(3) of the
Jammu Kashmir High Court Rules, 1999.

( Tashi Rabstan )
Judge
Jammu
29.12.2017
Narinder

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