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transfer petition, child visitations rights, exemption from personal appearance in criminal cases to the old couple accused.

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English: Hawa Mahal, Jaipur, India. Polski: Pa...

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REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO.5213 Of 2010

Deepti Bhandari … Petitioner

Vs.

Nitin Bhandari & Anr. … Respondents

WITH

TRANSFER PETITION (C) NO.856-857 OF 2010

O R D E R

ALTAMAS KABIR, J.
1. The Petitioner and the Respondent No.1 were married to

each other according to Hindu rites at Jaipur in the State

of Rajasthan on 20th February, 2007. A girl child, Mannat,
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was born prematurely to the couple on 3rd April, 2008, and

had to be kept in incubator for about three weeks. It is the

Petitioner’s grievance that while they were on their

honeymoon in Mauritius, the Respondent No.1, husband, began

to treat her with physical and mental cruelty. Even during

her pregnancy, she was ill-treated. Ultimately, being

unable to withstand the physical and mental cruelty

inflicted both on the Petitioner and her minor daughter, the

Petitioner was compelled to leave the matrimonial home and

return to her parents on 7th October, 2008.

2. On 6th December, 2008, the Respondent No.1, husband,

filed an application under Section 9 of the Hindu Marriage

Act, 1955 (Case No.609 of 2008) against the Petitioner, for

restitution of conjugal rights. Unable to bear the shock of

the incidents, which had taken place since the Petitioner’s

marriage with the Respondent No.1, the Petitioner’s

grandparents suffered heart and paralytic attacks, as a

result of which they have become completely bed-ridden.

According to the Petitioner, on account of the cruelty meted
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out to her and the child, the Petitioner filed FIR No.7 of

2009 complaining of offences alleged to have been committed

by the Respondent No.1 punishable under Sections 498-A and

406 IPC.

3. It is the Petitioner’s further case that in order to

settle the matter peacefully, the Petitioner entered into a

compromise with the Respondent No.1 on 25th February, 2009,

so that she could start her life all over again and to

acquire financial independence to provide for herself and

for providing proper care to the child on her own. Pursuant

to the terms of the compromise, the Petitioner withdrew her

complaint under Sections 498-A and 406 IPC, but the

Respondent No.1 failed to appear before the Family Court

No.2 at Jaipur on 2nd December, 2010, to present a Petition

for mutual divorce, as had been agreed upon in the

compromise.

4. At this stage, it may be mentioned that on 5th May, 2009,

the Petitioner filed a complaint against the Respondent No.1

and his family members under the provisions of the
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Protection of Women from Domestic Violence Act, 2005,

hereinafter referred to as `PWD Act’) before the Upper Civil

Judge (A,B) and Judicial Magistrate Serial No.18 Jaipur

City, Jaipur, being Criminal Legal Case No.13 of 2009.

Soon, thereafter, on 1st June, 2009, charge-sheet was filed

against the Respondent No.1 and his family members in FIR

No.7 of 2009 which had been filed by the Petitioner under

Sections 498-A and 406 IPC. The next day, on 2nd June, 2009,

the Respondent No.1, husband, moved an application under

Section 21 of the above Act for visitation rights, which was

dismissed by the learned Judge, Family Court.

5. The Respondent No.1 filed Criminal Appeal No.455 of 2009

on 25th August, 2009 against the aforesaid order dated 2nd

June, 2009, before the Court of Upper District Judge (Fast

Track) No.9, Jaipur City, Jaipur, which dismissed the same.

6. On 18th September, 2009, the Respondent No.1 filed a

Petition under Section 482 Cr.P.C. (S.B. Criminal Misc.

Petition No.1977 of 2009) for quashing of the charge-sheet
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in FIR No.7 of 2009 and further proceedings before the

learned Judicial Magistrate-I, No.15, Jaipur City, Jaipur,

were stayed therein. On 7th October, 2009, the Respondent

No.1 filed another Petition under Section 482 Cr.P.C. (S.B.

Criminal Misc. Petition No.2139 of 2009) for quashing of

Criminal Legal Case No.13 of 2009 filed by the Petitioner

under Section 12 of the PWD Act, 2005. The High Court also

stayed the said proceedings pending before the Upper Civil

Judge (A,B) and Judicial Magistrate, Serial No.18, Jaipur

City, Jaipur.

7. On 22nd January, 2010, when both the matters came up

before the High Court for consideration, the High Court

directed the Petitioner and the Respondent No.1 to settle

their disputes and to apply for divorce by mutual consent

within 15 days. The order was passed in the presence of

both the parties. While giving the aforesaid directions,

the High Court also passed orders allowing visitation rights

to the Respondent No.1, husband, in respect of the minor

child.
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8. On 17th February, 2010, the Respondent No.1 filed S.B.

Criminal Revision Petition No.1 of 2010 before the Jaipur

Bench of the Rajasthan High Court against the order dated

25th August, 2009 passed in Criminal Appeal No.455 of 2009

dismissing his application for visitation rights. The

Respondent NO.1 also filed Application No.3051 of 2010 in

S.B. Criminal Misc. Petition No.1977 of 2009 praying for

similar visitation rights. On 8th April, 2010, the said

application for visitation rights was allowed and the

Petitioner was directed to arrange for the meeting of the

Respondent No.1 with the Petitioner and their minor daughter

at the office of the learned counsel for the Respondent No.1

on every Saturday between 11.00 a.m. and 1.00 p.m.

9. This is the genesis of the problem which is the subject

matter of the present Special Leave Petition.

10. According to the Petitioner, on 14th April, 2010, the

Petitioner’s brother got admission with I.I.P.M. in Delhi,

which required him to shift to Delhi for his higher
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education and the Petitioner also decided to come to Delhi

to establish herself professionally to be able to maintain

herself and her minor daughter. According to the

Petitioner, since then she has been residing in Delhi and

the order directing visitation rights to the Respondent No.1

to meet the minor child at Jaipur in the office of the

learned counsel for the Respondent No.1 became extremely

difficult for her. The Petitioner thereupon moved an

application in the High Court on 30th April, 2010, for

modification of the order of 8th April, 2010, and instead of

Jaipur, to shift the place of visitation to Delhi. The said

application was disallowed by the High Court on 5th May,

2010, resulting in the filing of the Special Leave Petition

on 17th June, 2010.

11. During the pendency of these proceedings, the Petitioner

also filed Transfer Petition (Civil) Nos.856-857 of 2010 for

transfer of Case No.279 of 2009, which had been filed by the

Respondent No.1 under Section 9 of the Hindu Marriage Act

and Case No.65 of 2009 also filed by him under Section 25 of
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the Guardians and Wards Act, 1890, from the Family Court at

Jaipur to a Family Court of competent jurisdiction in Delhi.

One of the grounds taken in the Transfer Petitions is that

in the interest of the child, this Court had directed the

Respondent No.1 to visit the child on the 2nd and 4th Saturday

of each month at an address in New Delhi and the Petitioner

was directed to take the child on the 1st and 3rd Saturday of

each month to an address in Jaipur to enable the Respondent

No.1 to meet his minor daughter. It was also submitted that

the Petitioner had received threats that the case should be

pursued in Jaipur instead of Delhi and that fearing for her

safety and that of the minor child, she had prayed that the

proceedings referred to hereinabove pending before the Court

at Jaipur be transferred to a Family Court, having competent

jurisdiction, to hear and try the matter in Delhi.

12. As will be seen from the narration of facts which

intervened between the Petitioner and the Respondent No.1

during their brief matrimonial obligations towards each
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other, the child has now become the source of acrimony

between them.

13. Although, it was repeatedly urged on behalf of the

Respondent No.1 that the Petitioner was still residing in

Jaipur and not in Delhi and that the Transfer Petitions had

been filed only to cause harassment to him and the other

members of his family, such suggestions were strongly denied

on behalf of the Petitioner. It was submitted on her behalf

that on account of her minor child and the threats extended

to her, it would prove extremely difficult for her to defend

the case instituted against her by the Respondent No.1 or to

conduct the cases which she had filed against the Respondent

No.1 and his family members in FIR No.7 of 2009, in which

charge-sheet had been filed, in Jaipur. In any event,

considering the difficulties on either side in attending to

the several cases pending between them and in order to

balance the same, we are inclined to accept the submissions

made on behalf of the Petitioner and to modify the order

dated 8th April, 2010, whereby the Petitioner was directed to
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arrange for the meeting of the Respondent No.1 with herself

and their minor daughter in the office of the learned

counsel for the Respondent No.1 on every Saturday between

11.00 a.m. and 1.00 p.m. and also the subsequent order dated

5th May, 2010, passed by the High Court rejecting her prayer

to move the place of visitation from Jaipur to Delhi.

14. It is true that transfer of the several cases to Delhi

is likely to cause some inconvenience to the Respondent No.1

and his family members, but it cannot be denied that it

would be easier for the Respondent No.1 to attend to the

proceedings in Delhi than for the Petitioner to attend to

the same in Jaipur, while staying in Delhi with her minor

child. We, therefore, see no substance in the persistent

demand of the Respondent No.1 that he should be allowed to

meet the Petitioner and their minor child at Jaipur to

enable him and his family members to meet the child on a

regular basis. In our view, it is the Respondent No.1 who

should make an effort to meet his minor child in Delhi as

and when he wishes to do so. The Petitioner can have no
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objection whatsoever to such an arrangement and must also

ensure that the child is able to meet her father in terms of

the order of this Court on all weekends in New Delhi instead

of the second and fourth Saturday of each month.

15. As far as the difficulty expressed on behalf of the

parents of the Respondent No.1 is concerned, they will be

free to apply to the Trial Court for exemption from personal

appearance on the dates of the different cases and if such

applications are made, the same should be considered by the

Trial Court looking to the physical difficulties that may be

faced by the parents of the Respondent No.1, who are both

considerably aged. The visitation rights granted to the

Respondent No.1 will have equal application to his parents

and they too will be at liberty to visit the minor child in

Delhi, as and when they wish to do so, along with the

Respondent No.1.

16. The application for modification of the order dated

8th April, 2010, filed by the Petitioner before the High

Court on 30th April, 2010, which was dismissed by the High
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Court, is, accordingly allowed along with the Transfer

Petitions filed by the Petitioner. The order of 8th April,

2010, is modified to the extent indicated above, whereby the

Respondent No.1 and his parents will be entitled to meet the

minor child, Mannat, on every Saturday in New Delhi, between

10.00 a.m. and 6.00 p.m. In the event, the child is

willing, the Respondent No.1 may also take her out for the

day and return her to the custody of the Petitioner within

6.00 p.m. This arrangement will continue, until further

orders.

17. In addition, Transfer Petition (Civil) Nos.856-857 of

2010 filed by the Petitioner are allowed. Let Case No.279

of 2009, which had been filed by the Respondent No.1 under

Section 9 of the Hindu Marriage Act and Case No.65 of 2009,

also filed by him under Section 25 of the Guardians and

Wards Act, 1890, be transferred from the Family Court at

Jaipur to a Family Court of competent jurisdiction in Delhi.

The transferor Court is directed to send the records of the

aforesaid cases to the transferee Court, so that the matter
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may be heard and disposed of by the transferee Court with

the utmost expedition.

18. In view of the facts involved, the parties will each

bear their own costs in these proceedings.

……………………………………………………J.

(ALTAMAS KABIR)

……………………………………………………J.

(SURINDER SINGH NIJJAR)

……………………………………………………J.

(J. CHELAMESWAR)

New Delhi

Dated: 14.12.2011

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