Vishal Gayakwad vs Smt. Suparna

Sl.

No.","Case filed by petitioner and

respondent against each other","Petition pending or

disposal in Higher

Court

1,"M.C.No.37/2015 filed by

Petitioner against Respondent

seeking for dissolution of

Marriage under Hindu

Marriage Act on the file of

Family Court Judge,

Vijayapur and presently

stayed.","Petitioner filed

C.P.No.257/2015

seeking for transfer of

the petition from

Family Court Judge,

Vijayapur to Family

Court, Bengaluru.

2,"G&WC No.10/2014 filed by the

respondent seeking custody of

the daughter under Minority

and Guardianship Act read

with Guardian and Ward Act on

the file of Family Court Judge,

Vijayapur and presently stayed.","Petitioner filed

C.P.No.273/2015

seeking for transfer of

the petition from

Family Court Judge,

Vijayapur to Family

Court, Bengaluru.

3,"Criminal Miscellaneous

No.320/2014 filed by the

respondent seeking for

maintenance before the

Family Court Judge,

Vijayapur. The same is

disposed off and the

respondent has filed

Crl.Misc.No.361/2016 which

is pending for consideration.","The petitioner had filed

Criminal Petition

No.7536/2015 before

this Hon’ble Court and

the same came to be

(sic) dismissed vide

order dated 19.02.2016

rejecting the request of

the petitioner for

transfer. With

reference to Crl.Misc.

No.361/2016 and no

petition seeking

transfer is filed.

4.,"Petitioner has filed G & WC

No.14/2016 under Section 10

of G&WC Act seeking custody

of minor son before Family

Court Judge, Vijayapur.","The petitioner has not

filed any petition

seeking for transfer.

5.,"C.C.No.1784/2014 filed by

the Respondent against the

Petitioner before the III Addl.

Civil Judge (Jr.Dn.) Bijapur,

Vijayapura.","The petitioner has filed

Criminal Petition

No.7535/2015 and

seeking for transfer the

same is pending for

consideration.

The petition filed for restitution of conjugal rights by the husband came to be allowed in M.C.No.472/2013 and has attained finality but there has not,,

been any rapprochement between them. A criminal complaint had been filed in Crime No.10/2010 by the respondent for the offences punishable,,

under Section 498A of IPC read with Sections 4 and 6 of Dowry Prohibition Act, pending in C.C.No.1784/2014 before the III Additional Civil Judge",,

and JMFC at Bijapur. In the mean while, as is evident from the details furnished above, petition had been filed by the respondent in G & WC",,

No.10/2014 seeking custody of the daughter who is with the petitioner and the said proceedings are pending before the Family Court at Bijapur. A,,

petition has also been filed seeking dissolution of marriage under Section 13(1)(ia) and (ib) of the Hindu Marriage Act in M.C.No.37/2015 which is,,

also pending before the Family Court at Bijapur.,,

The petitioner submits that trial has commenced in M.C.No.37/2015 and Crl.Misc.No. 320/2014 and the petitioner had been partially cross-,,

examined. It is stated that during the pendency of the said proceedings, the petitioner was assaulted and abused by the counsel for the respondent in",,

the court hall itself in the proceedings in Crl.Misc.No.320/2014, a complaint in that regard has been filed against the advocate of the respondent. No",,

action being taken on the said complaint, the petitioner has also instituted proceedings before the Karnataka Bar council against the said advocate for",,

his alleged misconduct. Copies of the said complaint have been filed along with a memo dated 29.06.2017 in C.P.No.257/2015.,,

The petitioner further states that when he was to adduce evidence in C.C.No.1784/2014 in the Court of III Addl. Civil Judge & JMFC, Bijapur on",,

16.04.2016 at 8.30 a.m, the same Advocate of the respondent once again has abused him and threatened his life and in that regard, a complaint has",,

been lodged but the jurisdictional police have recorded the said complaint as NCR No.135/2008/2016.,,

It is the case of the petitioner that despite various complaints no action has been taken against the alleged offenders and that it has become difficult,,

for him to continue to conduct the proceedings. The petitioner further submits that the cases are now at a crucial stage and that there is an increased,,

threat to his life. It is also to be noticed that the petitioner has unequivocally asserted that the advocate representing him has indicated that it would not,,

be possible for him to represent the petitioner and conduct the cases in light of the incidents at the Court. The petitioner has submitted that the,,

respondent’s father is a former Member of Legislative Assembly, that he has contested for elections and has produced the affidavit filed before",,

the Returning Officer. The petitioner states that the declaration refers to the respondent’s father being involved in a number of cases which has,,

also created a heightened threat perception in the mind of the petitioner.,,

In the light of the above, the petitioner had filed W.P.No.42014/2015 before this Court seeking for a direction to the State Police Authorities to",,

afford adequate and effective police protection to enable the petitioner to attend and prosecute and defend the pending cases before the court at,,

Bijapur. This Court has disposed of the said Writ Petition, and has observed that while a direction to afford police protection was not an appropriate",,

remedy, which is as under:-",,

“4…….On assessment of threat perception and even if that be true, the protection being provided to the petitioner would not resolve the issue in",,

the petitioner effectively prosecuting the matter before the Court below, if he does not get legal assistance as alleged. Therefore, if in fact, there is",,

such threat and there are materials to indicate that the petitioner is unable to attend the proceedings before the Court below, appropriate course for the",,

petitioner is to seek for the relief of transfer of the petition. If such request is made the same would be considered based on the material that would,,

available thereto and the Court being satisfied in that regard. Hence, reserving liberty to the petitioner the petition stands disposed of.â€​",,

Copy of the said order is enclosed as Annexure-F. The petitioner submits that in the light of the observations of this Court, present petitions have been",,

filed.,,

The respondent, on the other hand, while opposing the said petition has filed the statement of objections and has denied the averments and",,

allegations made in the petition and has also pointed out that the petitioner has been represented in all of the proceedings before the Court at Bijapur.,,

The respondent has asserted that the allegations are baseless as against the respondent’s father as well as the respondent’s advocate at,,

Bijapur as also against the respondent and her family. The respondent states that if the petitions were to be allowed and the proceedings transferred to,,

Bengaluru, it would cause great hardship, as she would have to travel above 700 Kms to Bengaluru. Further, to travel alone with a minor male child to",,

Bengaluru would cause great hardship and expose the respondent to threats. The respondent has also relied on the order in Crl.P.No.7536/2015 dated,,

19.02.2016 wherein this Court has refused to entertain a petition seeking for transfer of Crl.Misc.No.320/2014 pending on the file of Family Court,",,

Bijapur to the Family Court at Bengaluru. The Court while disposing of the petition for transfer has observed that it would not be appropriate to ask,,

the respondent to come to Bengaluru from Bijapur to attend the case.,,

On such of the above grounds, the respondent has opposed the allowing of the petitions.",,

The point that arises for consideration is:-,,

“Whether a case has been made out for transfer of the proceedings as sought for, warranting exercise of power under Sec.24 of the Code of Civil",,

Procedure?â€​,,

Perused the pleadings and material on record and heard the submissions of both the counsel.,,

The primary consideration while exercising power under Section 24 of C.P.C. in the light of the facts that have been placed before this Court is as,,

to whether the petitioner’s right of a fair trial warrants transfer of the proceedings.,,

The following facts need to be kept in mind:-,,

(a) The petitioner has alleged of an attempt by the respondent’s counsel to assault him in court, on 11.09.2015. Complaint has been sent to Police",,

Authorities and complaint has been lodged before the Karnataka State Bar Council against the said advocate representing the respondent (page 16 to,,

18 of memo).,,

(b) Complaint against the respondent’s lawyer of having threatened the petitioner and tried to intimidate him in the Court premises on 16.04.2016,,

(page 19-21 of the memo along with complaint and acknowledgement).,,

The above material does indicate prima facie there have been violent altercations in the Court premises itself.,,

The apprehension of the petitioner as regards prejudice to a fair trial is also based on a perception as regards his father-in-law and is based on the,,

affidavit filed before the Returning Officer, which reveals his involvement in a number of criminal cases (memo extracted supra). The petitioner has",,

also averred that his advocate has expressed his inability to continue to represent him.,,

The above facts and circumstances would indicate that the apprehension of the petitioner as regards a fair trial cannot be said to be unfounded and,,

be considered to be an apprehension of a hypersensitive litigant. The observations of the Apex Court in the case of MRS. MANEKA SANJAY,,

GANDHI AND ANOTHER v.,,

MISS. RANI JETHMALANI reported in AIR 1979 SC 468 (at para 5) appear to have been made keeping in mind the present factual matrix and,,

reads as under:-,,

“5….... Turbulent conditions putting the accused’s life in danger or creating chaos inside the court hall may jettison public justice. If this vice is,,

peculiar to a particular place and is persistent the transfer of the case from that place may become necessary….â€​.,,

A litigant is to be afforded a congenial atmosphere of physical security and assurance of effective legal representation which are concomitants of,,

the right to a fair trial. The litigant looks up to a fair judicial process which involves a level playing field as regards his opponent. Often the concept of,,

justice as regards the litigant would be not necessarily the certainty of a desired result, but a level playing field with an opportunity to put forth his case",,

as law would afford. This procedural fairness constitutes a vital component of the substantive right of a fair trial.,,

The petitioner appears to have an apprehension of being denied a fair trial, this apprehension cannot be said to be unfounded or those of a",,

hypersensitive litigant. On a consideration of the pleadings and material on record, the apprehension appears to be based on objective material and",,

circumstances.,,

The facts of the present case are in consonance with observations in KULWINDER KAUR ALIAS KULWINDER GURCHARAN SINGH v.,,

KANDI FRIENDS EDUCATION TRUST AND OTHERS reported in (2008) 3 SCC 659; whereby broad propositions as to what may constitute,,

grounds for transfer were noted by the Hon’ble Supreme Court.,,

The frequent threats, if considered, cumulatively can be said to have created an atmosphere of insecurity in the petitioner which is sufficient to",,

vitiate the right to a fair trial. This Court in W.P.No.42014/2015 has rightly observed that when the petitioner had sought for police protection to enable,,

him to pursue legal proceedings, that the appropriate remedy would be to seek transfer of proceedings, if permissible under law.",,

The dismissal of Criminal Petition No.7536/2015 filed by the petitioner seeking for transfer of proceedings in a petition filed under Section 407 of,,

Cr.P.C. does not tie the hands of this Court to exercise power vested under Section 24 of C.P.C. as regards other proceedings between the same,,

parties. In the present petitions, the material placed are convincing enough to warrant exercise power under Section 24 of C.P.C.",,

Further, in Criminal Petition No.7536/2015 the Court has observed that transferring of proceedings from Bijapur to Bengaluru would not be",,

appropriate considering the inconvenience to the respondent. However, the petitioner in the present case has left it to this Court to determine the place",,

to where the proceedings could be transferred other than Vijayapura, Kalaburagi and Bagalkot. The petitioner is not insisting on transfer of",,

proceedings to the Court at Bengaluru.,,

However, it also needs to be noted that the inconvenience that the respondent would be put to by the transfer of the proceedings cannot eclipse",,

the light to a fair trial, the consideration of which is paramount and which right does not admit any compromise or tinkering.",,

Accordingly the petitions are allowed. The proceedings in G & WC. No.10/2014 pending on the file of Family Court at Vijayapura and M.C.,,

No.37/2015 pending on the file of Family Court at Vijayapura are withdrawn and transferred to be tried by the Family Court at Hubballi. The parties,,

are directed to appear before the Family Court, Hubballi on 28.11.2018.",,