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R.Vembu vs Bhuvaneswari on 27 February, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 27.02.2018
Reserved on:18.01.2018

Pronounced on:27.02.2018

CORAM

THE HON’BLE MR.JUSTICE P.RAJAMANICKAM

Crl.O.P.(MD) No.13707 of 2017
and
Crl.M.P.(MD).No.9229 of 2017

R.Vembu … Petitioner/Petitioner

-Vs-

Bhuvaneswari … Respondent/Respondent

Prayer: Criminal Original petition filed under Section 407 of Code of
Criminal Procedure, to transfer the case in Cr.M.P.No.1361 of 2017 in
M.C.No.11 of 2003 on the file the Chief Judicial Magistrate, Thanjavur at
Kumbakonam to any other competent Judicial Magistrate Court, situated in
another District.

!For Petitioner : Mr.M.Suri

^For Respondent : Mr.S.Gokulraj

:ORDER

This Criminal Original petition has been filed to transfer the
case in Cr.M.P.No.1361 of 2017 in M.C.No.11 of 2003 from the file the Chief
Judicial Magistrate, Thanjavur at Kumbakonam to any other Court, situated in
another District.

2.Heard both sides.

3.The learned counsel for the petitioner has submitted that the
petitioner is the husband and the respondent is the wife and their marriage
was solemnized on 04.12.1989 and they have lived together hardly for 7 months
and thereafter, she left the matrimonial home on 12.07.1990. In spite of
sincere efforts taken by the petitioner to bring back the respondent, the
respondent refused to live with the petitioner. After exchange of notices,
the respondent herein has filed a divorce petition in H.M.O.P.No.65 of 1993
on the file of the Sub-Court, Kumbakonam, in which, the petitioner herein has
filed a detailed counter. The respondent herein did not pursue the said case
for several years and hence, it was dismissed for default on 05.09.2000.
During pendency of the said H.M.O.P., the respondent herein has filed an
application in I.A.No.420 of 1993, claiming interim maintenance of Rs.3,000/-
per month and Rs.800/- towards litigation expenses and the trial court has
passed an order on 11.08.1994, directing the petitioner to pay a sum of
Rs.1,120/- towards interim maintenance per month and Rs.400/- towards
litigation expenses and the same was affirmed by this Court by an order dated
08.12.1998. He further submitted that after dismissal of the H.M.O.P.No.65
of 1993 for default, the petitioner herein has filed a divorce petition on
the file of the Sub-Court, Virudhunagar and the same was transferred to the
Principal Sub-Court, Trichy and numbered as H.M.O.P.No.36 of 2002, in which a
decree of divorce was granted on 13.09.2010.

4.The learned counsel for the petitioner further submitted that
the respondent herein has filed a petition under Section 125 of Cr.P.C,
claiming maintenance in M.C.No.11 of 2003 on the file of the Chief Judicial
Magistrate, Thanjavur at Kumbakonam, wherein, it was ordered that the
petitioner has to pay a sum of Rs.2000/- per month towards maintenance to the
respondent. Aggrieved over the said order, the respondent herein has filed
Crl.R.C.(MD).No.26 of 2004 before this Court and this Court has passed an
order to enhance the maintenance from Rs.2,000/- to Rs.3,000/- by the
order dated 08.06.2007. As on date, there is no arrears of maintenance.
When the fact remains so, the respondent herein has filed a case alleging
that the petitioner herein has committed an offence under Section 494 of
I.P.C and based on that, the case was taken on file in C.C.No.415 of 2013 on
the file of the Chief Judicial Magistrate, Kumbakonam. In that case, the
petitioner and other accused were acquitted on 12.11.2005. Thereafter, the
respondent herein has filed Crl.A.(MD).No.228 of 2006 before this Court and
the same was dismissed on 08.10.2012. Now, the respondent herein has filed a
petition under Section 127 of Cr.P.c and the same was taken on file in
Cr.M.P.No.1361 of 2017 in M.C.No.11 of 2003 on the file of the Chief Judicial
Magistrate, Thanjavur at Kumbakonam, seeking for enhancement of maintenance
from Rs.3,000/- to Rs.50,000/- per month.

5.The learned counsel for the petitioner further submitted that
the respondent herein has completed Law Degree course and practising as an
advocate at Kumbakonam. Since she is practising at Kumbakonam, if the
aforesaid case is conducted before the Chief Judicial Magistrate, Thanjavur
at Kumbakonam, the petitioner apprehends that he may not get justice and
hence, he requests to transfer Cr.M.P.No.1361 of 2017 in M.C.No.11 of 2003
from the file of the Chief Judicial Magistrate, Thanjvur at Kumbakonam to any
other Court, situated in another District. In support of his contention, he
relied upon the decision in Renuga Devi Vs. Superintendent of Police reported
in (2017) 4 MLJ (Crl.) 5.

6.The learned counsel for the respondent has submitted that the
respondent is not having sufficient income and the sum of Rs.3,000/-, which
was awarded by this Court in Crl.R.C.(MD).No.26 of 2004 in the year 2007 is
not sufficient for her basic needs. Hence, she has filed a petition under
Section 127 Cr.P.C in Cr.M.P.No.1361 of 2017 in M.C.No.11 of 2003 on the file
of the Chief Judicial Magistrate, Thanjavur at Kumbakonam, seeking to enhance
the maintenance amount. Merely because the respondent is practising as an
advocate, the petitioner cannot seek transfer of maintenance case. He
further submitted that the respondent being a lady, if the maintenance case
is transferred to some other District, that would cause inconvenience to her
to go to that Court and therefore, he strongly opposed this petition. He
further submitted that in the case of Renuga Devi Vs. Superintendent of
Police (supra), the Bar Association has passed a resolution that no advocate
shall appear for the particular person, but in this case, it is not the case
of the petitioner that the Bar Association of Kumbakonam has passed any such
resolution and as such, the said decision will not apply to the facts of the
case. He has also filed written arguments.

6. In the case of Renugadevi Vs Superintendent of Police (cited
supra), based on the complaint given by one advocate , practising in
Coimbatore, a case was registered in Cr.No.1565 of 2011 under Sections 323,
324 and 326 I.P.C against the police personnel and charge-sheet has been
filed in C.C.No.114 of 2012. Likewise, one Woman Police attached to the
Karamadai Police Station also gave a complaint against the advocate and
others and based on that, a case has been registered in Cr.No.1564 of 2011
and subsequently, charge-sheet has been filed and case has been taken on file
in C.C.No.115 of 2012 on the file of the Chief Judicial Magistrate,
Coimbatore. The woman police Constable , who is the defacto-complainant in
C.C.No.115 of 2012 has filed Crl.O.P.Nos.14695 and 14680 of 2012 before this
Court at Principal Seat under Section 407 Cr.P.C to transfer the cases in
C.C.Nos.114 and 115 of 2012 to some other District. In those cases, it was
argued on behalf of the petitioner that under Section 303 of Cr.P.C, she has
right to engage a counsel on her choice and since no advocate has come
forward from Coimbatore Bar to conduct her case, she was forced to engage a
counsel from neighbouring District and the atmosphere at Coimbatore was not
conducive for conducting fair trial. Considering the aforesaid submissions,
this Court allowed those petitions and transferred the cases in C.CNos.114
and 115 of 2012 from the file of the Chief Judicial Magistrate, Coimbatore to
the Chief Judicial Magistrate, Thiruppur. In the case on hand, as rightly
contended by the learned counsel for the respondent that the petitioner has
not stated in his petition that since the respondent is practising as an
advocate at Kumbakonam, the advocates who are practising at Kumbakonam are
not coming forward to defend the petitioner. Therefore, the aforesaid
decision will not apply to the facts of this case.

8.According to the petitioner, the respondent herein is
practising as an advocate in the Courts at Kumbakonam and if the aforesaid
maintenance case is allowed to conduct in the Court of the Chief Judicial
Magistrate at Kumbakonam, he apprehends that the enquiry may not be conducted
in a fair manner.

9.It is immaterial that the respondent herein is an Advocate. All
are equ al before the law. So far as Court is concerned, she is a party to
the proceedings like any other persons. There is no basis for the
petitioner’s apprehension. No one can influence the Court. Therefore, I do
not find any merit in this petition.

10.In the result, this petition is dismissed. Consequently,
connected miscellaneous petition is closed.

To

The Chief Judicial Magistrate,
Thanjavur at Kumbakonam.

.

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