Gauhati High Court
Page No.# 1/8 vs Kewelo U. Krome on 21 January, 2025
Page No.# 1/8
GAHC010070532024
2025:GAU-AS:585
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Tr.P.(Crl.)/32/2023
UTPAL JYOTI SUT
S/O SRI DANDADHAR SUT
R/O AMONI
NO. 4 AMLOKI
P.S. SAMAGURI
DIST. NAGAON
ASSAM
VERSUS
KEWELO U. KROME
D/O LT. HESHU KROME
R/O HOUSE NO. 15 (B)
SEITHEKE BASA
CHUMUKEDIMA
NAGALAND
PIN-797103
------------
Advocate for : MR SARFRAZ NAWAZ
Advocate for : MR. S M ABDULLAH P appearing for KEWELO U. KROME
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
21.01.2025
Heard Mr. S. Nawaz, learned counsel petitioner. Also heard Ms. F. Hussain,
learned counsel for the respondent.
2. This application is filed under Section 407 of the Code of Criminal
Procedure, 1973 praying for the transfer of Maintenance Case No.07/2023, from
the Court of learned Family Court, Dimapur to the Court of learned Chief Judicial
Magistrate, Nagaon or any other Competent Court in Assam, nearest to
Dimapur, Nagaland.
3. It is contended by the petitioner that previously he worked in New Delhi at
Effizert Pvt. Ltd., where he became acquainted with the respondent.
Approximately four years ago, the respondent borrowed Rs. 1,00,000 from the
petitioner, claiming it was for her mother’s treatment. Subsequently, she
borrowed another Rs. 2,50,000/- on two separate occasions. By 2020, the
respondent owed the petitioner a total of Rs. 3,50,000/-. Despite the petitioner
lending the money in good faith, during the COVID-19 crisis, he urgently
needed funds and requested repayment from the respondent. However, she
expressed her inability to repay, citing her own financial difficulties. Instead of
repaying, the respondent continued to ask for more money, and her demands
turned into harassment. She frequently visited the petitioner’s workplace,
causing embarrassment. As a result of the persistent pressure and financial
strain, the petitioner moved to Assam in November 2020 and started working
odd jobs while managing his family business. He continued requesting
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repayment but was refused.
4. In addition to the petitioner’s contention, Mr. Nawaz, learned counsel for
the petitioner, has submitted that in October 2022, the petitioner gave the
respondent an ultimatum to repay or face legal action. In response, the
respondent filed an application under Section 12 of the Protection of Women
from Domestic Violence Act, alleging that they had been in a live-in relationship,
later engaged, and that the petitioner had fathered her child. This led to
Domestic Violence Case No. 07/2022 in Dimapur, Nagaland.
5. Upon receiving the notice, the petitioner confronted the respondent but
was threatened. He filed a complaint with Samaguri Police Station on
10.02.2023 but was told the police could not investigate the case since it
occurred in Dimapur. On 28.02.2023, the petitioner learned of a conspiracy to
abduct him upon his arrival in Dimapur, which he reported to the Samaguri
Police. The petitioner feared for his life and filed a transfer petition seeking to
move the case from Dimapur to a Court in Assam. This petition was registered
as Transfer Petition (Crl.) No. 09/2023, and proceeding was stayed by this Court
on 27.04.2023. Despite the stay, the respondent filed another case under
Section 125 of the Cr.P.C., demanding monthly maintenance of Rs. 40,000. The
case, Maintenance Case No. 07/2023, is pending before the learned Family
Court in Dimapur. The petitioner, fearing for his safety, requested a transfer of
the case to a court in Assam.
6. Mr. Nawaz, learned counsel for the petitioner, accordingly prays for the
transfer of Maintenance Case No.07/2023, from the learned Family Court,
Dimapur to the Court of learned Chief Judicial Magistrate, Nagaon or any other
Competent Court in Assam, nearest to Dimapur, Nagaland, as the petitioner and
his mother feel unsafe attending the trial in Dimapur. He further submitted that
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the petitioner is ready to bear all the traveling expenses of the respondent if his
prayer is allowed. In addition to his submission, he also submitted that the
Hon’ble Gauhati High Court has the authority to transfer the case, as affirmed
by the Supreme Court in Shah Newaz Khan and Ors. v. State of Nagaland
and Ors., reported in 2023 SCC OnLine SC 203.
7. Ms. Hussain, counsel for the respondent, submitted that both the petitioner
and respondent are husband and wife, having married on 21.11.2021. She
stated that she endured physical, mental, verbal, and financial abuse from the
petitioner and his mother. In 2021, the petitioner began exploiting her
financially, demanding more money to invest in his business. During this time,
the respondent became pregnant, and the petitioner encouraged her to go to
Nagaland for the delivery. After the baby’s birth, the petitioner ignored her and
failed to provide financial support, even stopping her calls. The respondent
further stated that she sold property in Nagaland to support the petitioner
financially. In 2020, she invested Rs. 9,63,000/- in M/s Moitree Enterprises,
owned by the petitioner’s mother, but has not received any return on the
investment. Additionally, she paid Rs. 50,000/- on 21.02.2021 for a generator
delivery, and in 2021, she took a loan of Rs. 3,00,000/-, which was credited to
the petitioner’s account. The petitioner also used her HDFC credit card to buy an
iPhone worth Rs. 69,900/-, leaving a balance of Rs. 57,100/-. The respondent
has taken several loans on the petitioner’s behalf, leading to the blocking of all
her credit cards and accounts. As a result, she is unable to apply for jobs. She
cares for her ailing mother and child and has filed a maintenance case for
support. The petitioner has remarried, and the respondent now lives with her
son and mother in a rented house, selling CTC tea leaves to meet daily
expenses. She faces significant financial hardship, making it difficult for her to
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travel outside Dimapur for the case proceedings due to the need to care for her
child and old ailing mother.
8. In addition to her submission, she relied on the case decided by the Hon’ble
Supreme Court in Harita Sunil Parab vs. The State (NCT of Delhi) and
others, reported in (2018) 6 SCC 358, wherein it was observed that while
exercising the power under this section, the court must be fully satisfied that an
impartial trial is not possible. Equally important is the need to verify that the
apprehension of not having a level playing field is based on credible materials
and not just conjecture or surmise. Thus, she submits that the statements made
in the instant petition are omnibus in nature, not based on credible materials,
and the facts enumerated are insufficient to substantiate the allegations of
threats made to the petitioner and his mother.
9. She further submitted that the petitioner has cited the case of Shah
Nawaz Khan (supra), which deals with the interpretation of Sections 24 and 25
of the CPC in relation to interstate transfer of proceedings. The facts of the case
do not arise from maintenance proceedings. In the case of Rajneesh v. Neha,
reported in (2021) 2 SCC 324, the Hon’ble Supreme Court observed that the
remedy of maintenance is a measure of social justice as envisaged under the
Constitution, to prevent wives and children from falling into destitution and
vagrancy, as set forth in the Preamble and Articles 39 and 15(3) of the
Constitution of India. Thus, she raised objections regarding the transfer of
Maintenance Case No. 07/2023 from the learned Family Court, Dimapur, to any
other court, citing financial hardship and the fact that there is no one to take
care of her two-year-old son and her old ailing mother.
11. In this context, Mr. Nawaz, learned counsel for the petitioner, has
submitted that the petitioner is the respondent in both the maintenance case
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and the Domestic Violence case, while his mother is also a respondent [D. V.
Case]. Therefore, not only is the life of the petitioner at risk, but his mother’s
life is also in danger if they appear before the learned Court below in Dimapur.
If they do not appear, the case may proceed ex-parte, in which event the
respondent may not be benefitted. He further submitted that initially, when he
received threats from the respondent’s side, he approached the Samaguri Police
Station. Although the case was not registered due to jurisdictional issues, a GD
entry (GD No. 198 dated 10.02.2023) was made. Subsequently, he received
further threats from the respondent’s side, which led him to approach the
Samaguri Police Station again. As a result, another GD entry (GD No. 547 dated
28.02.2023) was registered. He also submitted that the petitioner is ready and
willing to bear all travel expenses if the case is transferred to a competent court
nearest to Dimapur, such as the Bokajan or the Diphu Court, both of which are
approximately 1 to 1.5 hours from Dimapur. However, at this stage, he and his
mother are unable to appear before the learned Court below in Dimapur.
12. In response, Ms. Hussain, learned counsel for the respondent, has
submitted that there is no material to substantiate the threat allegations except
for the two GD entries, which she claims are lodged with vague allegations
intended to harass the respondent. She further submits that the respondent has
a two-and-a-half-year-old child and she resides with her old, ailing mother. As
such, she is not in a position to travel to the Court in Assam, leaving her minor
child and mother behind. Accordingly, she raised an objection and submitted
that it is not a suitable case to transfer the case from Dimapur to any other
court, as prayer by the petitioner.
13. After hearing the submissions made by the learned counsels for both sides,
I have perused the case record and the annexures filed along with the petition.
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It is a fact that there were some monetary transactions between the parties.
According to the respondent, there was also a husband-wife relationship
between them. Both parties have made allegations and counter-allegations.
However, it is evident that the petitioner approached the Samaguri Police Station
on two occasions after receiving life-threatening threats from the respondent’s
side, and to substantiate his claims, the petitioner has provided copies of the
two GD entries registered at the Samaguri Police Station. While these were
denied by the respondent, and the respondent claims that the petitioner, in an
attempt to harass the respondent, filed the petition for transfer and stated that,
leaving her minor child and mother behind, she is not in a position to appear
before any trial court in Assam. She also stated that she cannot bear the
expenses of her travel. However, the petitioner has already stated in his petition,
and the learned counsel for the petitioner has reiterated before this Court, that
the petitioner is willing to bear all the travel expenses that may be incurred by
the respondent or her witnesses.
14. The plea of threatening cannot be outrightly rejected, as the petitioner has
approached the Samaguri Police Station on two occasions, and two GD entries
have been registered, it must be noted that the petitioner has requested the
case be transferred to a court in Assam nearest to Dimapur and he is also ready
to facilitate the travel expenses to the respondent for her appearance. Mr.
Nawaz, learned counsel for the petitioner, has submitted that the case may be
transferred to either the Bokajan Court or the Diphu Court, both of which are
considered to be the nearest courts to Dimapur.
15. Considering the entire facts and circumstances of the case, and also taking
into account the view of the Hon’ble Apex Court in the case of Shah Nawaz
Khan (supra), I find it appropriate to transfer Maintenance Case No. 07/2023
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from the learned Family Court, Dimapur, to the Court of the learned JMFC,
Bokajan, Assam. Accordingly, the learned Family Court, Dimapur, is hereby
directed to transfer the case records to the Court of the learned JMFC, Bokajan,
with a direction for the parties to appear before the learned learned JMFC,
Bokajan, on a date fixed by the concerned court. The learned JMFC, Bokajan,
Assam, will fix a date after receiving the records of Maintenance Case No.
07/2023 from the Court of the learned Family Court, Dimapur.
16. In terms of above, this Transfer petition stands disposed of.
17. Sent a copy of this order to the respective learned Courts below.
JUDGE
Comparing Assistant
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