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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
