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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