SARMILA KAR vs ABHINAV ACHARYA
- Court
- Odisha High Court
TRP(C)/255/2026
ODHC010624852026
2026:OHC:208
IN THE HIGH COURT OF ORISSA, CUTTACK
TRP(C) No.255 of 2026
CNR No. ODHC010624852026
Abhinav Acharya ....... Petitioner
-Versus-
Sharmila Kar ....... Opposite Party
TRP(C) No.240 of 2026
CNR No. ODHC010601522026
Sharmila Kar ....... Petitioner
-Versus-
Abhinav Acharya ....... Opposite Party
Advocates for the parties
For Petitioner : Mr. Om. Swarup, Advocate
(In TRP(C) No.255 of 2026)
For Petitioner : Mr. L. Mohanty, Advocate
(In TRP(C) No.240 of 2026)
For Opposite Parties : Mr. L. Mohanty, Advocate
(In TRP(C) No.255 of 2026)
For Opposite Parties : Mr. Om. Swarup, Advocate
(In TRP(C) No.255 of 2026)
----------------------------
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing & Judgment: 13.10.2026
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S.K. MISHRA, J.
1. Learned Counsel for the Opposite Party-wife (in TRP(C)
No.255 of 2026) files a Counter Affidavit in the Court after
handing over a copy thereof to the learned Counsel for the
Petitioner in TRP(C) No.255 of 2026, which is taken on record.
2. Since the pleadings are complete and the parties as well
as the issues involved in both the transfer petitions are the same,
with the consent of learned Counsel for the parties, both the
transfer petitions are taken up together for hearing and disposal
at the stage of admission vide this common judgment.
3. TRP(C) No.255 of 2026 has been preferred by the
Petitioner-husband (Opposite Party in TRP(C) No.240 of 2026)
seeking transfer of C.P. No.462 of 2023, instituted by the
Opposite Party-wife, pending before the learned Judge, Family
Court, Cuttack, to the Court of learned Judge, Family Court,
Bhubaneswar, on the grounds stated therein.
4. Similarly, TRP(C) No.240 of 2026 has been preferred by
the Petitioner-wife (Opposite Party in TRP(C) No.255 of 2026)
seeking transfer of C.P. No.1187 of 2022, pending before the
learned Judge, Family Court-I, Bhubaneswar, to the Court of
learned Judge, Family Court, Cuttack, or to the Court of learned
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Judge, Family Court-II, Bhubaneswar. In the alternative, she
seeks transfer and consolidation of all matrimonial proceedings
pending between the parties before different Courts to one
competent Court having jurisdiction.
5. Heard learned Counsel for the parties.
6. Admittedly, the Petitioner-husband, who has preferred
TRP(C) No.255 of 2026, had earlier approached this Court in
TRP(C) No.243 of 2024, seeking the selfsame relief. The Opposite
Party-wife had also preferred TRP(C) No.118 of 2024, seeking
transfer of proceeding in C.P. No.1187 of 2022 from
Bhubaneswar to Cuttack. Both the aforesaid transfer petitions
were dismissed by coordinate Bench vide a common order dated
07.05.2025. The relevant paragraphs of the said order are
extracted below:-
“3. Both the TRP (C)s have been tagged
and taken up together. By order dated
11.09.2024 of this this Court, the matter
was referred for Mediation to the Court
annexed mediation center. The reports of
the mediator dated 12.11.2024, 16.12.2024
indicates that mediation has failed.
4. Apparently, the parties do not agree
for any settlement even for selecting a place
of prosecuting the litigations one by the
husband under section 13(1) of the Hindu
Marriage Act, the other by the wife under
section 9 of the Hindu Marriage Act.
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5. In such scenario, no purpose would
be served in keeping both the matters
pending before this Court. Both the matters
are pending about more than a year without
achieving any objective of resolution rather
the process of adjudication before the
learned Judge, Family Court in both the
matters have been stalled.
6. On being asked by the Court if the
parties can agree for choosing a place of
litigations of both the cases, the learned
counsel appearing for the parties are on
instruction submit that they cannot agree.
Cuttack and Bhubaneswar being Twin
Cities separated by a distance of about only
20 kilometers. Both the parties having
selected their places of prosecuting the
respective matters are allowed to prosecute
the matters.
7. Both the TRP(C)s stands dismissed.
Interim orders passed earlier in both the
cases stand vacated.”
7. As is further revealed from the record, after dismissal of
the TRP(C) No.243 of 2024 vide the aforesaid common order, the
Petitioner-husband preferred W.P.(C) No.697 of 2026 for
expeditious hearing of C.P. No.1187 of 2022, which was
dismissed by the coordinate Bench vide order dated 15.01.2026,
solely on the ground that there is a large pendency of cases
before the learned Judge, Family Court, Bhubaneswar and the
Court is not inclined to pass orders for expediting trial of any
matter at the cost of other litigants and litigations pending before
self-same Court.
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8. Being aggrieved by the said order, the Petitioner-
husband preferred SLP(Civil) Dairy No.26867 of 2026 before the
Supreme Court. The Supreme Court, vide order dated
15.05.2026, disposed of the said SLP with the following
observation:-
“ Delay condoned.
Though we are not inclined to interfere with the
impugned order of the High Court, we only direct
the Trial Court to expedite the hearing of the
Divorce Petition and dispose of the same
accordingly.
The Special Leave Petition is disposed of,
accordingly. Pending application(s), if any, shall
also stand disposed of.”
(Emphasis supplied)
9. It further appears from the record in TRP(C) No.240 of
2026, filed on 05.08.2026, that although the Opposite Party-wife
disclosed regarding filing and disposal of TRP(C) Nos.118 and
243 of 2024 by the common order dated 07.05.2025, she did not
disclose the subsequent order passed by the Hon’ble Supreme
Court directing the learned Judge, Family Court-I,
Bhubaneswar, to expedite the hearing of C.P. No.1187 of 2022
pending at the instance of the husband.
10. However, upon hearing the submissions advanced on
behalf of the Petitioner-wife in TRP(C) No.240 of 2026 regarding
changed circumstances as well as common trial, and upon
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consideration of the judgments of the Hon’ble Supreme Court
relied on by the learned Counsel for the Petitioner-wife in
Amruta Ben Himanshu Kumar Shah v. Himanshu Kumar
Pravinchandra Shah , reported in AIR 2021 SC 688, and N.C.V.
Aishwarya v. A.S. Saravana Karthik Sha , reported in 2022
SCC OnLine SC 1199, this Court was pleased to issue notice to
the Opposite Party-husband (in TRP(C) No.240 of 2026) and
stayed the further proceedings in C.P. No.1187 of 2022 pending
before the learned Judge, Family Court-I, Bhubaneswar.
11. On the other hand, TRP(C) No.255 of 2026 has also
been preferred by the Petitioner-husband seeking the same relief
as was sought in the earlier TRP(C) No.243 of 2024 on the
ground that the civil proceeding at the instance of the petitioner-
husband and criminal proceeding, as well as execution
proceeding at the instance of the opposite party-wife are pending
before the learned Judge, Family Court-II, Bhubaneswar. In all
the cases trials have already commenced. The opposite-party
wife is attending the said proceedings at Bhubaneswar.
Accordingly, a prayer has been made seeking transfer of C.P.
No.462 of 2023, pending before the learned Judge, Family Court,
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Cuttack, to the Court of the learned Judge, Family Court,
Bhubaneswar on the ground of changed circumstances.
11.1. It is also contended by the learned Counsel for the
Petitioner-husband that the child of the parties has since grown
up and that, while the Petitioner-husband is employed in a
private company, the Opposite Party-wife is not employed and
would have no difficulty in attending the Court at Bhubaneswar,
since she is attending three proceedings at Bhubaneswar before
the concerned Courts, situated inside the Judicial Complex,
Bhubaneswar.
12. As held by the Hon’ble Supreme Court in N.C.V.
Aishwarya (supra), where two matrimonial proceedings initiated
by the husband and the wife are pending before different Courts,
it is desirable that both proceedings be tried together so as to
avoid multiplicity of proceedings and the possibility of conflicting
judgments. Paragraph No.10 of the said judgment being relevant
is extracted below:-
“10. Further, when two or more
proceedings are pending in different Courts
between the same parties which raise
common question of fact and law, and when
the decisions in the cases are
interdependent, it is desirable that they
should be tried together by the same Judge
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so as to avoid multiplicity in trial of the
same issues and conflict of decisions.”
(Emphasis supplied)
13. Admittedly, in TRP(C) No.240 of 2026 preferred by the
wife, one of the alternative prayers is to transfer of proceeding in
C.P. No.1187 of 2022 to the Court of learned Judge, Family
Court-II, Bhubaneswar, where Cr.P. No.229 of 2017, so also
Criminal Execution Case Nos.92 of 2022 and 28 of 2024 are
pending at her instance. The Opposite Party-husband is
appearing and contesting the said proceedings at Bhubaneswar.
14. That apart, the order dated 15.01.2026 passed by the
coordinate Bench in W.P.(C) No.697 of 2026, being challenged
before the Supreme Court, a direction has been given in
SLP(Civil) Dairy No.26867 of 2026 to the learned Judge, Family
Court-I to expediate the hearing of the divorce petition and
dispose of the same accordingly. Further, C.P. No.1187 of 2022
under Section 13(1) of the Hindu Marriage Act,1955 was
preferred by the Petitioner-husband first at Bhubaneswar,
followed by C.P. No.462 of 2023 under Section 9 of the Hindu
Marriage Act,1955 by the Opposite-party-wife at Cuttack.
15. Admittedly, the Opposite Party-wife is attending
various proceedings before the learned Judge, Family Court-II,
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Bhubaneswar, so also the divorce proceeding in C.P. No.1187 of
2022 before the learned Judge, Family Court-I, Bhubaneswar.
That apart, the Supreme Court has directed the Family Court-I,
Bhuabaneswar to expedite hearing of C.P. No.1187 of 2022 and
trial has commenced substantially in the said proceeding,
wherein the Petitioner-husband has already deposed as P.W.
No.1. Further, one of the alternative prayer of the Opposite
Party-wife in TRP(C) No.240 of 2026 is to transfer the proceeding
in C.P. No.1187 of 2022 from the Court of learned Judge, Family
Court-I, Bhubaneswar to the Court of learned Judge, Family
Court-II, Bhubaneswar, which is situated inside the same
building, i.e., Judicial Complex, Bhubaneswar. That apart, as
per the settled position of law, both Section-9 application and
Section-13(1) application are to be tried together.
16. Though, earlier, the transfer petitions of both the parties
were rejected vide a common order, in view of settled position of
law and changed circumstanced, as detailed above, supported
with the judgments of Supreme Court in Amruta Ben
Himanshu Kumar Shah (supra) and N.C.V. Aishwarya (supra),
this Court is of the view that there would be no bar to reconsider
the prayer of the Petitioner-husband in TRP(C) No.255 of 2026,
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to transfer the proceeding in C.P. No.462 of 2023 from Cuttack
to Bhubaneswar for common trial with C.P. No.1187 of 2022.
That apart, though the settled position of law is convenience of
wife is to be looked at, while considering the application for
transfer of matrimonial proceedings, this Court is of further
view that opposite party-wife would no way be prejudiced, if the
matrimonial proceedings in C.P. No.462 of 2023 is transferred to
Bhubaneswar for common trial along with C.P. No.1187 of
2022, pending in the Court of learned Judge, Family Court-I,
Bhubaneswar, which Court has been directed by the Supreme
Court to expedite the trial in C.P. No.1187 of 2022.
17. So far as desirability of a common trial, it would be
appropriate to refer to the judgment of Supreme Court in Guda
Vijayalakshmi v. Guda Ramchandra Sekhara Sastry , (1981)
2 SCC 646 AIR 1981 SC 1143, wherein it was held that
matrimonial proceedings may appropriately be brought together
so as to avoid conflicting decisions and observed, in substance,
that it will ordinarily be expedient to have a joint or consolidated
hearing/trial of closely connected matrimonial proceedings,
including husband's petition for restitution of conjugal rights
and the wife's petition for judicial separation. The said decision
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also confirms that Section 21A of the Hindu Marriage Act, 1955
is not to be read as excluding the broader procedural power of
transfer/consolidation where justice requires it.
18. Hence, the learned Judge, Family Court, Cuttack, is
directed to transmit the case record in C.P. No.462 of 2023 to the
Court of the learned Judge, Family Court-I, Bhubaneswar at the
earliest, preferably, within a period of seven days from the date of
production of certified copy of this Judgment for common trial of
the said case along with C.P. No.1187 of 2022.
19. On receiving the case record in C.P. No.462 of 2023
from the Court of learned Judge, Family Court, Cuttack, the
Court of learned Judge, Family Court-I, Bhubaneswar shall re-
register the said case, if so required, and proceed further in
accordance with law giving due opportunity to both the parties.
20. At this stage, it is submitted at the Bar that, in C.P.
No.1187 of 2022, the evidence of the Petitioner-husband, who
deposed as P.W. No.1, was closed on 10.09.2024. After availing
several adjournments, the Opposite Party-wife ultimately filed
her affidavit evidence on 13.10.2025. Thereafter, she filed an
application for amendment of her written statement, which has
already been allowed. The matter now stands posted to
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14.10.2026 for further examination and cross-examination of the
Opposite Party-wife, who has filed her Affidavit Evidence as
R.W.1.
21. Hence, the learned Judge, Family Court-I,
Bhubaneswar is directed to conduct a common/consolidated
trial of C.P. No.1187 of 2022, instituted by the Petitioner-
husband under Section 13(1) of the Hindu Marriage Act, 1955,
and C.P. No.462 of 2023, instituted by the Opposite Party-wife
under Section 9 of the said Act. The learned Court below shall
make an endeavour to avoid recording separate evidence on the
same facts in both proceedings. Wherever legally permissible, the
evidence shall be recorded once and made available for
consideration in both proceedings, subject to the procedural
rights of the parties. Since the proceedings in C.P. No.1187 of
2022 have substantially progressed, the evidence already
recorded shall be preserved and utilised to the extent legally
permissible, with further evidence being recorded only to the
extent necessary to address any genuinely new facts or issues
arising in the later proceeding. Such an approach would
reconcile procedural fairness with expeditious disposal, avoid
duplication of evidence and minimise the possibility of conflicting
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findings, consistent with the principles laid down in Guda
Vijayalakshmi (supra).
22. It is made clear that, during common/consolidated trial,
the existing evidence recorded in C.P. No.1187 of 2022 should be
treated as evidence in the earlier petition; the learned Judge
Family Court shall permit the parties to adopt/read that
evidence in the later petition to the extent legally permissible and
relevant, subject to the other party's right to cross-examine on
matters newly introduced by the later petition, i.e., C.P. No.462
of 2023, if so prayed for. If C.P. No.462 of 2023 contains
genuinely new facts or a distinct issue requiring proof, additional
evidence should be confined to those matters.
23. In view of the direction of the Supreme Court to
expedite the hearing and disposal of the divorce petition, the
learned Judge, Family Court-I, Bhubaneswar shall make an
endeavour to conclude both proceedings through a common or
consolidated trial, as observed above.
24. Both the parties are directed not to seek for
unnecessary adjournments and cooperate with the learned
Judge, Family Court-I, Bhubaneswar for early disposal of both
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the said proceedings in C.P. No.1187 of 2022 and C.P. No.462 of
2023, as observed above.
25. Accordingly, both the transfer petitions stand disposed
of. Interim orders, if any, stand vacated. All the pending I.As. in
both the transfer Petitions stand disposed of accordingly. No
order as to costs.
26. Office is directed to communicate a copy of this
Judgment to the Court of learned Judge, Family Court-I,
Bhubaneswar enabling the said Courts to act in terms of the
observations made above.
Urgent certified copy of this Judgment be granted on
proper application as per rules.
….………..……………
S.K. Mishra, J.
Orissa High Court, Cuttack .
th
Dated, 13 October, 2026/ Banita
Signature Not Verified
Digitally Signed
Signed by: BANITA PRIYADARSHINI PALEI
Designation: SR. STENOGRAPHER
Reason: AUTHENTICATION
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 16-Oct-2026 10:39:33
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