Allowed

Balabhadra Chhotary v. Itishree Nayak

Orissa HC9 Dec 2024TRPCRL/5/2024

Case brief

AI extract

What is this about?

Petitioner husband filed a transfer petition to move the wife's Section 125 Cr.P.C. maintenance case from Nayagarh to Puri, where he has a pending Section 13 divorce petition under which the wife is contesting and also filed interim maintenance. The Court, finding overlapping reliefs and an unrepresented opposite party, allowed the transfer to ensure joint trial.

What did the court decide?

The Transfer Petition is allowed; the record in CRLMP No.268 of 2023 is to be transmitted to Family Court, Puri, to be tagged to C.P. No.384 of 2023 and tried together.

Balabhadra Chhotary Vs Itishree Nayak — Matrimonial and Divorce | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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TRPCRL No.5 of 2024

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Balabhadra Chhotary

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Petitioner

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Ms. D. Mohapatra, Adv.

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-versus-

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Itishree Nayak

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…. Opposite Party

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CORAM: JUSTICE SANJAY KUMAR MISHRA

ORDER

09.12.2024

Order No.

07.

This matter is taken up through hybrid mode.

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2. Learned Counsel for the Petitioner is present.

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3. Despite repeated notices, the Opposite Party goes unrepresented, when the matter is called.

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4. Heard learned Counsel for the Petitioner.

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5. This Transfer Petition has been filed by the Petitioner-Husband for Transfer of CRLMP No.268 of 2023, pending in the Court of Judge, Family Court, Nayagarh to the Court of Judge, Family Court, Puri on the ground that C.P. No.384 of 2023 has been filed by the Petitioner under Section 13 of the Hindu Marriage Act, 1955 before the Judge, Family Court, Puri for divorce, wherein, being noticed, the present Opposite Party-wife has appeared and is contesting the said case at Puri. Apart from the same, she has also filed an application under Section 24 of the Hindu Marriage Act, 1955 for interim maintenance in C.P. No.384 of 2023, which is still pending for consideration.

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6. A further ground has also been urged in the Transfer Petition that the prayer made in the application filed under Section 24 is similar to the prayer made in CRLMP No.268 of 2023, now pending in the Court of Judge, Family Court, Nayagarh, filed under Section 125 Cr.P.C. instituted by the Opposite Party-wife. Such an application has been moved as a counter blast, after receiving notice in C.P. No.384 of 2023.

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7. As it reveals from the record, despite giving sufficient opportunity to appear in this case to oppose the prayer made in this Transfer Petition, the Opposite Party has failed to appear in this case. Paragraph Nos.2 to 4 of the previous order dated 21.10.2024, being relevant, are reproduced below.

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“ 2. Pursuant to order dated 23.09.2024, the Judge, Family Court, Puri has submitted a status report in C.P. No.384 of 2023, which indicates that after failure of conciliation between the parties on 29.06.2024 now the case stands posted to 28.10.2024 for filing of Written Statement by the Respondent(Wife) so also for filing objection by the Petitioner(husband) in C.P. No.384/2023 in response to the application filed by the Opposite Party(wife) under section 24 of the Hindu Marriage Act, 1955 for interim maintenance from the Petitioner (husband).

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3. Learned Counsel for the Petitioner submits, the Opposite Party (Wife) has filed CRLMP No.268 of 2023 before the Judge, Family Court, Nayagarh under section 125 Cr.P.C. for interim maintenance and prayer made in the section 24 application being same and similar to the prayer made in the CRLMP No.268 of 2023, the prayer made by the Petitioner (husband) in the present transfer petition to transfer CRLMP No.268

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of 2023 to the Court of Judge, Family Court, Puri is justified.

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4. As per the office note, neither the unserved summon nor the A.D. showing service of summon has returned yet. However, tracking report on record indicates that the summon was duly served on the Opposite Party (wife) on 01.08.2024. The Opposite Party(wife) goes unrepresented when the matter is called.”

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8. Law is well settled that when two or more proceedings are pending in different Courts between the same parties, wherein common question of fact and law may arise, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.

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9. As pleaded, the Opposite Party-wife has filed an application under Section 24 of the Hindu Marriage Act, 1955 in C.P. No. 384 of 2023 for interim maintenance. She has also filed an application under Section 125 Cr.P.C. before the Judge, Family Court, Nayagarh for the self-same relief. Apart from the same, instead of approaching this Court to transfer the posting in C.P. No. 384 of 2023 to the Court of Judge, Family Court, Puri, she is contesting C.P. No. 384 of 2023 at Puri and has filed an application under Section 24 of the Hindu Marriage, Act, 1955.

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10. In view of the said reasons detailed in the order dated 21.10.2024 so also the grounds urged in the Transfer Petition, prayer made in the Transfer Petition is allowed.

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11. The Presiding Officer Judge, Family Court, Nayagarh is directed to transmit the record in CRLMP No.268 of 2023 to the Court of Judge, Family Court, Puri within a week from the date of production of the certified copy of this order.

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12. On receiving the case record in CRLMP No.268 of 2023 from the Court of Judge, Family Court, Nayagarh, the Judge, Family Court, Puri shall re-register the said case, if so required, and tag the said record to CP. No. 384 of 2023. Thereafter, the Court below shall proceed further in accordance with law giving due opportunity to both the parties and shall try to conclude the proceeding in CP. No. 384 of 2023 at the earliest.

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13. It is made clear that the parties will be at liberty to appear before the Judge, Family Court, Puri through virtual mode, with due permission of the concerned Court, in case they face any difficulty on any date to appear physically before the said Court. However, on the dates of effective hearing i.e. for examination and crossexamination of witnesses so also other purposes, if any, for which their presence will be required by the Court, the parties shall remain physically present before the Judge, Family Court, Puri.

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14. To avoid delay, the parties, either in person or through their Counsel, shall make a query with the Court of Judge, Family Court, Puri to ascertain the date and purpose of posting and participate in the said proceeding.

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15. With the said observation and direction, the Transfer Petition stands disposed of.

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16. Office is directed to communicate a copy of this order to the Judge, Family Court, Nayagarh so also the Judge, Family Court, Puri enabling the said Courts to act in terms of the observation made above.

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17. Urgent certified copy of this order be granted on proper application as per rules.

(S.K. MISHRA)

Mona

JUDGE

Signature Not Verified

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Digitally Signed Signed by: MONALISA SWAIN Designation: Junior Stenographer Reason: Authentication Location: High Court of Odisha Date: 10-Dec-2024 16:46:41

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Balabhadra Chhotary v. Itishree Nayak

Case brief

What is this about?

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Balabhadra Chhotary v. Itishree Nayak

Case brief

What is this about?

What did the court decide?

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