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Sarbani Chakraborty vs Biswanath Chakraborty on 6 February, 2019

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06.02.2019. C.R.R. No. 3898 of 2015
rc.

In the matter of: Sarbani Chakraborty
…Petitioner.
-Versus
Biswanath Chakraborty

Mr. Shibaji Kumar Das
Mr. A. Ahmed …for the petitioner

Affidavit of service filed in the court today be kept on record. It reveals

from the service that the notice has been delivered to the local post office but the

postal department does not appear to have reported very well on the computer

track that whether the notice has been delivered to the addressee or not. Several

attempts have been made by the petitioner to effect service which is evident from

the record itself that steps have been taken for the service. However, the court is

of the view that it is not for the petitioner to see that it reached the addressee but

the duty is to only to post the notice under registered post with acknowledgement

due or the Speed Post.

This is a case by which the petitioner/wife has sought for transfer of

complaint case no. 25C/2015 being proceeding under Section 323, 494, 506/34

of the Indian Penal Code pending in the Court of learned Judicial Magistrate, 3rd

Court, Bishnupur, District – Bankura to the Court of the Additional Chief Judicial

Magistrate, Barrackpore, North 24-Parganas or to the court of any Judicial

Magistrate within the territorial jurisdiction of the residence of the petitioner. The

petitioner is legally wedded wife of the Opposite Party according to the Hindu
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Rites and Customs solemnized on 13.06.2011 and she has been blessed with a

female child on 31.08.2012 but due to souring relationship between the petitioner

and her husband there has been split ville. The petitioner has got to maintain her

daughter and herself and is presently living on the mercy of her father and elder

brother in Baranagar in the district of North 24-Parganas. It is her case that due

to physical and mental torture by her husband and in-laws she was compelled to

leave her matrimonial house and ultimately was driven out on 15.12.2013 along

with her daughter. During her stay in her parent’s house she lodged a written

complaint registered as Khanakul Police Case No. 524 of 2013 dated 18.12.2013

under Section 498A, 406/34 of the Indian Penal Code which is pending in the

court of Additional Chief Judicial Magistrate, Arambagh, District Hooghly in which

she is only supposed to attend to the court only on the date fixed for her

evidence. Mr. Shibaji Kumar Das, learned advocate for the petitioner, submits

that the husband / opposite party has filed a suit for restitution of conjugal right

on 19.03.2015 registered as Matrimonial Suit no. 28 of 2015 pending in the court

of the Additional District and Sessions Judge, Bishnupur, Bankura. The petitioner

after entering appearance in the said suit has filed Misc. Case No. 4 of 2015

under Section 24 of the Hindu Marriage Act, 1955 for alimony pendente lite for

herself and for her minor daughter and further submits that the said Matrimonial

Case has already been transferred to the Court of Additional District and

Sessions Judge, Barrackpore, North 24-Parganas, which case is being attended

by the husband.

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My attention is invited to the order of transfer so passed on 30.06.2015 by

the Hon’ble Mr. Justice Ashis Kumar Chakraborty in C.O.No. 221 of 2015 to

submit that inspite of notices sent through speed post the Opposite Party-

husband had not bothered to appear before the Court too. Application under

Section 125 of the Code of Criminal Procedure has also been filed by the present

petitioner on 05.05.2015 and is pending before the Additional Chief Judicial

Magistrate, Barrackpore, North 24-Parganas which case is also being contested

by her husband at Barrackpore. The said order reflects that it is not possible for

the petitioner wife to come back home on the same day after attending the court

at Bishnupur, Bankura where the suit of restitution of conjugal rights was pending

and she would be compelled to stay overnight at Bankura. It is also understood

that the hapless petitioner is helpless due to her poor financial condition and

unable to contest the matrimonial suit by travelling to Bisnupur Court being a long

distance from Baranagar. In the premises the Matrimonial Suit No. 28 of 2015

was transferred to the court of Additional District and Sessions Judge,

Barrackpore, North 24-Parganas.

It appears from the facts of the case that the opposite party also filed a

complaint registered under Section 323/394/506/34 of the Indian Penal Code

against the petitioner on 19.03.2015 registered as Complaint Case No. 25C/2015

on the date he had filed the said suit for restitution of conjugal rights. The said

complaint case is pending for hearing before the Judicial Magistrate, 3rd Court,

Bishnupur, District – Bankura and is sought to be transferred to the Court of

Additional Chief Judicial Magistrate, Barrackpore, North 24-Parganas or to any
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court of Judicial Magistrate within the territorial jurisdiction of the residence of the

petitioner.

I find that after case under Section 498A of the Code of Criminal

Procedure was registered in the year 2013 against the Opposite Party/husband,

the latter filed suit for restitution of conjugal right long after in the year 2015 in

order to save him from prosecution under Section 498A of the Indian Penal Code

and to take defensive plea that he is always interested in restitution of conjugal

right. Considering that the petitioner has to maintain a minor child it is not

possible for her to undertake journey on the date of trial of complaint case

pending in the Court of Judicial Magistrate, 3rd Court, Bishnupur, District –

Bankura which is 180 kilometers approximately away from the place of residence

of the petitioner. Accordingly, the case being complaint case no. 25C/2015 being

proceeding under Section 323, 494, 506/34 of the Indian Penal Code pending in

the Court of Judicial Magistrate, 3rd Court, Bishnupur, District – Bankura be

withdrawn and transferred to the Court of the Additional Chief Judicial Magistrate,

Barrackpore, North 24-Parganas.

Let a copy of this order be sent to the Additional District and Session

Judge, Bishnupur, Bankura for causing transfer of the case record to the court of

Additional Chief Judicial Magistrate, Barrackpore, North 24-Parganas with a copy

to the District and Sessions Judge, Barasat, North 24-Parganas.

Thus, CRR No. 3898 of 2015 is disposed of.

Urgent photostat certified copies of this order, if applied for, be made

available to the parties upon compliance of the requisite formalities.
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(Shivakant Prasad, J.)

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