Heard Mr. Manish Pandey, learned Counsel appearing on behalf of the applicant and Mr. Mukesh Joshi, learned Counsel appearing for the opposite party.
This transfer application seeks transfer of Suit No.1232 of 2018, Mohd. Akil Vs. Smt. Anjum from the Family Court at Moradabad to the Family Court at Sambhal. This application has been made by the wife, who is the defendant to the suit. It is argued by the learned counsel for the applicant that the suit instituted at Moradabad is one for restitution of conjugal rights. The applicant appeared in the suit on 14.03.2020 and 16.04.2020, at considerable risk to her life. The applicant has filed Complaint Case No.4266 of 2018, under Section 12 of the Domestic Violence Act, before the Magistrate at Sambhal, which is pending. It has been averred in paragraph No.8 that the applicant went over to Moradabad to attend the date fixed on 01.12.2018, which was a date scheduled for mediation. The opposite party in the company of one Ishtiyaq Munshi, and four others surrounded the applicant and assaulted her. They threatened her with death. In this connection, the applicant has lodged an FIR giving rise to Crime No.619 of 2018, under Sections 498-A, 323, 504, 506, 406, IPC, and Section 3/4 Dowry Prohibition Act, wherein the police, after investigation have filed a charge-sheet on 14.02.2019.
Once again on 17.06.2019, when the applicant went to attend the scheduled mediation at Moradabad with her father, the opposite party along with one Yaqoob and another Yasmeen, waylaid the applicant and her father. Both the applicant and her father were assaulted with brickbats. The applicant rushed to the Police Station, Civil Lines, Moradabad, along with her injured father where Case Crime No.525 of 2019, under Sections 323, 325 IPC was registered. The police after investigation have filed a charge-sheet into the said crime on the basis of which, the Court has taken cognizance and a case under Sections 323, 324, and 325 IPC is pending before the competent Court. It is also pointed out thatthe applicant has filed an application for maintenance with the Family Court at Sambhal, Chandausi. Thus, two cases inter partes are already pending at Sambhal arising out of the matrimonial dispute between parties, in the submission of learned counsel for the applicant. It is also urged that the applicant stays in her father's house since long time as the opposite party would not pay her a rupee in maintenance. The applicant is staying with her father at Sambhal. Sambhal and Moradahad are separated by a distance of 100 Kms. and given the feeble financial and physical circumstances of the applicant, it would not be possible for her to defend proceedings at Moradabad.
The Court has perused the counter affidavit filed on behalf of the opposite party. Lodging of the two FIR's by the applicant as a result of assault when the applicant went to attend scheduled dates at Moradabad are not denied. It is rather said about one of these FIR's in paragraph No.12 of the counter affidavit that the Investigating Officer has submitted a charge-sheet against the opposite party without doing a fair investigation and the Magistrate has taken cognizance without application of mind. It has further been said in paragraph No.11 of the counter affidavit that the opposite party's mother has lodged a complaint against the applicant, her father and two others on 08.12.2018, wherein the applicant, her father and her brothers have been summoned vide order dated 09.05.2019. It is also said that the applicant's case is a counterblast to the said complaint laid before the Magistrate by the opposite party's mother.
Be it as it may, so far this Transfer Application is concerned, from the material on record, it appears that the applicant has been threatened, if she attends the proceedings at Moradabad. She has been assaulted twice on scheduled dates at Moradabad and on one of the two occasions, her father has also been assaulted. The factum of assault has been vindicated upon an investigation by the police where charge-sheets have been laid against the opposite party. The inevitable inference from these state of things is that in the event the applicant is forced to attend at Moradabad, she might face peril to her life and limb. At the same time, there are atleast two cases arising out of the matrimonial discord between parties pending before the Magistrate and/or the Court at Sambhal. The opposite party, who appears to be an able-bodied man can conveniently attend at Sambhal where the applicant resides with her parents and the parties' young daughter. In the above conspectus of fact, this Court finds it to be a fit case for the grant of transfer.
This Transfer Application, accordingly, succeeds and is allowed. The proceedings of Suit No.1232 of 2018, Mohd. Akil Vs. Smt. Anjum pending before the Principal Judge, Family Court, Moradabad shall stands withdrawn and transferred to the file of the Principal Judge, Family Court, Sambhal at Chandausi. The Principal Judge, Family Court, Sambhal at Chandausi shall proceed to try the suit either himself or may assign it to an Additional Principal Judge in the Family Court, if one is available in his discretion.
Let this order be communicated to the Principal Judge, Family Court, Moradabad by the Registrar (Compliance) by Tuesday.
Order Date :- 27.8.2021 NSC