Full Judgment Text
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
17:20:21 IST
Reason:
which are strongly opposed by the husband. There are
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.
1
Dhananjay Mishra . His fourth submission is based on
another decision of this Court in the case of Nahar Singh
2
Yadav and Anr. v. Union of India and Ors.
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.
1
7. The decision in the case of Jyoti Mishra 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.
2
9. Now coming to the case of Nahar Singh Yadav , 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