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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
GOUTAM BHADURI, RADHAKISHAN AGRAWAL, JJ.
Sukhnath Ahirwar S/o Amritlal Ahirwar – Appellant
Versus
Varsha @ Rma Ahirwar W/o Sukhnath Ahirwar – Respondent
F.A. (MAT) No. 280 of 2023
Decided On : 23-01-2024
Transfer - Family Court Proceedings - Section 125 of Cr.P.C., Section 9 of Hindu Marriage Act - Section 2(a), Section 4(2)(c) of Family Courts Act - The court discussed the power of the Principal Judge Family Court to transfer cases to other Additional Principal Judge of the Family Court under Section 4(2)(c) of the Family Courts Act. It highlighted the importance of ensuring confidence in judicial proceedings and the need to avoid any perception of prejudice or bias. The court also referenced relevant case law to support its decision.
Fact of the Case:
The husband appealed seeking transfer of proceedings pending before the Principal Judge Family Court, Raipur, citing prejudice and undesirable comments made against him. The wife had filed for maintenance under Section 125 of Cr.P.C. and restitution of conjugal rights. The High Court had directed the Trial Court to decide the husband's application to set aside the ex-parte order.
Finding of the Court:
The court found that the Principal Judge Family Court had followed the issue for seeking clarification from the appellant, which made the issues open to public glare. It emphasized the importance of ensuring confidence in judicial proceedings and avoiding any perception of prejudice or bias.
Issues: The issues included the husband's appeal for transfer of proceedings, the power of the Principal Judge Family Court to transfer cases, and the need to address any perception of prejudice or bias in the judicial process.
Ratio Decidendi: The court held that the Principal Judge Family Court is empowered to transfer cases from one Court to another under Section 4(2)(c) of the Family Courts Act. It emphasized the need to address any perception of prejudice or bias in the judicial process and referenced relevant case law to support its decision.
Final Decision: The court allowed the appeal and directed the transfer of the three cases pending between the parties to another Additional Principal Judge Family Court from the court of Principal Judge Family Court, Raipur.
JUDGMENT :
GOUTAM BHADURI, J.
1. This appeal is under Section 19 (1) of the Family Court Act, filed by the husband seeking a transfer of proceedings which is pending before Principal Judge Family Court, Raipur.
2. The facts of this case are that the appellant and respondent got married on 16.05.2010. After sometime of marriage they cannot go along which led to various disputes between the parties. Consequently, an application was filed by the wife before the Principal Judge, Family Court Raipur, claiming maintenance under Section 125 of the Criminal Procedure Code. According to the wife-respondent and the order of the Court, the husband-appellant did not appear despite notice. The service of the notice, however, has been vehemently disputed by the husband-appellant to say that no notice was served and the place of posting was elsewhere from the issuance of place of notice. Be that as it may, the Family Court passed an ex-parte order on 19.01.2023, whereby, an amount of Rs. 40,000/- was ordered to be paid per month as interim maintenance.
3. Being aggrieved by the said order, the husband, thereafter filed an application to set aside such ex-parte order before the Principal Judge Family Court Raipur. During the pendency of the said application, the execution was drawn. Consequently, a criminal revision bearing No. 389 of 2023 was filed before the High Court. The High Court by its order dated 08.05.2023 directed the Trial Court to decide the application of the husband, which was for setting aside of the ex-parte order as early as possible.
4. Thereafter, on 27.05.2023 (Annexure-A/7), the ex-parte order was set aside. According to the appellant-husband, he appeared on 24.06.2023 and the transaction and the business of the Court took place on 24.06.2023. He separately filed an application for transfer of the case on 26.06.2023 before the Principal Judge, Family Court Raipur. The transfer was sought in respect of proceeding No. 278 of 2023, which was under Section 125 of Cr.P.C. and a separate proceeding for transfer of petition for restitution of conjugal rights to other Family Court than the Principal Family Judge.
5. The husband had also filed a petition for divorce which was pending before Family Court, Mungeli and by order of this Court dated 26.07.2023 in TPC No. 163 of 2022, the said case was also transferred to the Court of Principal Judge, Family Court Raipur. The application for transfer of two cases to other Principal Judge Family Court was filed on 26.06.2023. The Family Judge by its order dated 04.07.2023 rejected the application for transfer of cases pending between the parties to the other Family Court at Raipur. Being aggrieved by such order, this appeal by the husband.
6. Learned counsel for the appellant would submit that by application of Section 24 of C.P.C. the Principal Judge Family Court, could have transferred the case to other Additional Family Court as it would not have caused any prejudice. He would submit that the transaction and business of the Court and even the Principal Judge, since appeared to be prejudiced for the reasons that the appellant on the earlier occasion approached the High Court and the Trial Court acted in prejudicial manner. He would submit that undesirable comment were made against appellant taking into sweep the High Court. Therefore, under these circumstances, there is a strong apprehension that prejudice would be caused to the appellant-husband if the case is adjudicated by the Principal Judge, Family Court, Raipur (Hemant Saraf).
7. He refers to a letter filed as an additional document, wherein, the letter was addressed by the Principal Judge Family Court to the Chief Secretary seeking some clarification and was directed to be served through its department. Learned counsel for the appellant would further submit that after the stay order was passed by this Court on 02.11.2023, the letter was addressed by the Principal Judge, which prima facie would reflect overwriting in the dates were made
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The court established that transfer applications must be filed in the appropriate jurisdictional bench as per the territorial division of the High Court.
The Court established that the balance of convenience is a critical factor in transferring cases under Section 24 of the CPC, prioritizing the plaintiff's right to choose a suitable forum.
High Courts have the authority under Section 24 of the Civil Procedure Code to transfer proceedings to subordinate courts, prioritizing parties' convenience and children's interests.
The convenience of the wife in matrimonial matters is a relevant consideration for transfer petitions, and transfer should be based on sufficiently cogent grounds and the balance of convenience of th....
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