S. No.61

Regular List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Trp.(Crl)No.10/2021

CrlM No.1055/2021

Mohammad Asif Malik

…..Petitioner(s)

Through: Mr.M.A.Thakur, Advocate

V/s

Dilshada Akhter and Ors

….. Respondent(s)

Through: Mr. Bilal Ahmad Malla

CORAM:

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

ORDER

03.03.2022

1. This is a petition filed by the petitioner-husband seeking transfer of

application under Section 125 Cr.P.C filed by the respondent-wife

against him before the Court of Chief Judicial Magistrate, Shopian.

2. The primary ground, on which the petitioner has sought transfer of

proceedings before the court below, is, that the petitioner is working

as a soldier in Indian Army and keeping in view the security situation

in District Shopian, it may be highly risky for him to appear before the

court below and defend his case.

3. Respondents have filed their reply to the petition. In their reply

respondent No.1, the wife and the respondent No.2, the daughter of

the petitioner have admitted that the petitioner is serving in Indian

Army. It has been contended that the petitioner, during his vacations,

moves freely in his native area and there is no threat to his life in the

said area. It is also averred that the petitioner is intentionally avoiding

SARVEEDA NISSAR

2022.03.07 12:57

I attest to the accuracy and

integrity of this document

2

Trp (Crl) No.10/2021

CrlM No.1055/2021

to appear before the court below so as to defeat the claim of the

respondents.

4. I have heard learned counsel for the parties and perused the record.

5. It is not disputed that the petitioner is working as a soldier in Indian

Army. It is a fact of common knowledge that security situation in and

around Shopian and other areas of south Kashmir is not conducive to

free movement of security personnel, particularly those of Indian

Army. There have been several incidents of attack of Army personnel

in the area and there have also been incidents when Army personnel

have been kidnapped and eliminated by militants during their transit

to their native places. In view of this situation, the apprehension by

the petitioner that it will be difficult for him to go to Shopian to attend

his case, cannot be termed as misplaced. Thus his prayer for transfer

of the case from the Court of CJM Shopian to any other Court in a

safe area appears to be justified. However, it has to be borne in mind

that the respondents, who are residents of District Shopian, in the

event of transfer of the petition out of District Shopian will have to

bear expenses to travel to the transferee court and for this the

petitioner has to compensate the respondents.

6. In view of the foregoing discussion, the petition is allowed and it is

directed that the subject proceedings under Section 125 Cr.P.C,

pending before the Court of CJM Shopian, be withdrawn from the

docket of the said court and be transferred to the Court of CJM

Srinagar. However, while considering the claim of respondents for

grant of maintenance, the CJM Srinagar shall take into account the

fact that the respondents will have to travel to Srinagar from Shopian

SARVEEDA NISSAR

2022.03.07 12:57

I attest to the accuracy and

integrity of this document

3

Trp (Crl) No.10/2021

CrlM No.1055/2021

for attending the case. He would, therefore, make adequate provision

for compensating the travel expenses of the respondents at the cost of

petitioner at the time of fixing the monthly maintenance.

7. The parties are directed to appear before the transferee court on 30^th

March, 2022. In the meanwhile, Chief Judicial Magistrate Shopian

shall transmit the record of the case t