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IN THE HIGH COURT OF DELHI AT NEW DELHI
Yashwant Varma, J.
Kinri Dhir - Appellant
Versus
Veer Singh - Respondent
Transfer Petition (C.) No. 5 of 2022, Civil Miscellaneous No. 4249 of 2022
Decided On : 19-04-2022
The petition sought transfer of proceedings titled GP No.16/2021 pending before the Court of the Principal Judge Family Court-Saket. The petitioner, who was married to the respondent as per Buddhist customs, filed an application for protective orders being passed referrable to Section 12 of the Protection of Women from Domestic Violence act, 2005 [PWDV]. The petitioner also simultaneously moved an application for interim protection of the person of the minor child under Section 12 of the Guardian and Wards act, 1980. The Family Judge passed an order restraining the respondent from removing the minor child out of the custody and care of the petitioner. On 06 april 2021, the respondents moved an application seeking modification of the visitation and guardianship as provided for in the order of 18 January 2021. The aforesaid application of the respondent was disposed of with the Family Judge permitting visitation rights to the respondent who was accorded permission to collect the child daily from the house of the petitioner for two hours everyday between 06.00 PM to 08.00 PM. The petitioner thereafter moved an application under Section 18 read with Sections 23 and 26 of the PWDV seeking various directions including orders of restraint injuncting the respondent from alienating assets, operating bank lockers or bank accounts without the leave of the court, and for further passing an order restraining the respondent from alienating, disposing of and/or creating third party interest in his immovable properties ad alienating and/or disposing of his movable properties. The petitioner thereafter came to institute the present application for transfer on 22 January 2022.
Fact of the Case:
The petitioner, who was married to the respondent as per Buddhist customs, filed an application for protective orders being passed referrable to Section 12 of the Protection of Women from Domestic Violence act, 2005 [PWDV]. The petitioner also simultaneously moved an application for interim protection of the person of the minor child under Section 12 of the Guardian and Wards act, 1980. The Family Judge passed an order restraining the respondent from removing the minor child out of the custody and care of the petitioner. On 06 april 2021, the respondents moved an application seeking modification of the visitation and guardianship as provided for in the order of 18 January 2021. The aforesaid application of the respondent was disposed of with the Family Judge permitting visitation rights to the respondent who was accorded permission to collect the child daily from the house of the petitioner for two hours everyday between 06.00 PM to 08.00 PM. The petitioner thereafter moved an application under Section 18 read with Sections 23 and 26 of the PWDV seeking various directions including orders of restraint injuncting the respondent from alienating assets, operating bank lockers or bank accounts without the leave of the court, and for further passing an order restraining the respondent from alienating, disposing of and/or creating third party interest in his immovable properties ad alienating and/or disposing of his movable properties. The petitioner thereafter came to institute the present application for transfer on 22 January 2022.
Finding of the Court:
The Court held that the observations of the Family Judge as appearing in the order of 11 august 2021 clearly would not meet the threshold as enunciated. The mere fact that the Family Judge chose to observe that courts are not powerless and do not need to seek concession from parties or counsels must be viewed in light of the prayer of the petitioner seeking rectification of the record. The Family Judge undoubtedly is the master of the record. Recitals as appearing in judicial orders are not liable to be opened or reviewed based on a bald allegation of parties. However, the Court cannot lose sight of the admitted fact that the remedy of rectification is duly recognised and one which a party is entitled to invoke if circumstances so warrant. The order of 02 august 2021 embodied the decision of the Family Judge to not permit the child to leave the jurisdiction of the Court. That order prefaces that direction with the Family Judge observing that it was being made after due deliberation. The Family Judge has further noted in the order of 11 august 2021 that counsels for respective parties had agreed to the aforesaid arrangement. This recital as appearing in that order was neither questioned nor assailed before this Court. Similarly, the mere use of the word contemptuous, while perhaps intemperate, would also not sustain an apprehension of bias. It appears to have been made solely to place parties on caution of the well settled principle that recitals appearing in judicial orders of what transpires in court are sacrosanct and cannot be lightly reopened or questioned. all that may be observed in this respect is that while the Family Judge may have overstepped in choosing to describe the application as contumacious, this observation when viewed independently and divorced from the contents of the subsequent orders passed would not justify transfer.
Issues: Whether the judicial bias was established.
Ratio Decidendi: The Court held that the petitioner could reasonably apprehend the ability of the Family Judge to undertake a fair and impartial trial of her case. at the cost of appearing to be repetitive it becomes pertinent to observe that bias need not be established as a proven fact. all that is ultimately required to sustain a challenge on the ground of judicial bias is whether when viewed from the standpoint of a reasonably instructed person, the specter would appear to be justified and thus disqualify the arbiter from proceeding further. The facts of the present case would clearly justify such a conclusion being recorded.
Final Decision: The Transfer Petition is accordingly allowed. Let the records of G.P. No. 16/2021 pending before the Principal Judge, Family Court, South East, Saket Courts, New Delhi be placed before another Judge of the Family Court. The Principal Family Judge is requested to take appropriate steps in this regard and in light of the directions issued hereinabove.
JUDGMENT
Yashwant Varma, J. - a. BRIEF OUTLINE
1. This petition has been preferred seeking transfer of proceedings titled GP No.16/2021 pending before the Court of the Principal Judge Family CourtSaket. The petition itself has come to be preferred in the backdrop of disputes having arisen between the parties as a consequence of the breakdown of matrimonial relations.
2. The respective parties are stated to have married as per Buddhist customs on 04 December 2018 in Taipei, Taiwan. a male child was born from that union on 13 april 2019. The parties stayed at Dehradun between December 2018 to March 2019. The petitioner further discloses that she also stayed at Chandigarh during her pregnancy. She presently resides at C-99, Defense Colony, New Delhi. The relations between the parties appears to have soured immediately or soon after the child was born. The Court finds it inexpedient to either notice or deal with the various allegations which have been levelled by respective parties against each other. This since the present petition is concerned only with the issue of whether the prayer for transfer is liable to be granted.
3. The petitioner here is stated to have moved an application dated 16 January 2021 for protective orders being passed referrable to Section 12 of the Protection of Women from Domestic Violence act, 2005 [PWDV]. The petitioner also simultaneously moved an application for interim protection of the person of the minor child under Section 12 of the Guardian and Wards act, 1980. along with the main petition preferred under PWDV, the petitioner also moved applications for ex parte and ad-interim directions. On 18 January 2021, the Family Judge passed an order restraining the respondent from removing the minor child out of the custody and care of the petitioner. On 23 February 2021, the Family Judge called upon parties to file their disclosures with respect to assets and income in terms of the judgment of the Supreme Court in Rajnesh v. Neha [ (2021) 2 SCC 324].
4. On 06 april 2021, the respondents moved an application seeking modification of the order of 18 January 2021 with the prayer that the respondent be declared the sole guardian and custodian of the minor child and to allow uninterrupted visitation rights. The proceedings thereafter did not move forward since the Court of the concerned Family Judge fell vacant on account of his untimely and sudden demise. It came to be transferred to the Court of the present judge on 23 June 2021. On 09 July 2021, the petitioner moved a further application purporting to be under Section 18(1)(e) of the PWDV seeking various directions including orders of restraint injuncting the respondent from alienating assets, operating bank lockers or in any manner diluting or transferring his interest in various business ventures. The petitioner thereafter asserting a failure on the part of the respondent to comply with the directions issued on 23 February 2021 moved a further petition seeking compliance and for the Family Judge commanding the respondent to furnish all particulars with respect to income and assets. On 02 august 2021, the Family Judge called upon the respondent to file his written statement and for parties to complete pleadings. The matter was posted for 11 November 2021 for the purposes of admission and denial of documents as also for framing of issues. While posting the matter for that date, the Family Judge directed that the petitioner would not take the child outside its jurisdiction and without its permission.
5. The petitioner thereafter moved an application seeking correction of the aforesaid order contending that the concession as recorded for the child not being removed from the jurisdiction of the Court was only to be till the next date of hearing and which fact the Court had overlooked. She is stated to have thereafter and more particularly on 05 august 2021 moved a further application seeking permission to travel to Dehradun along with the minor child. The applicat
Transfer of a case cannot be ordered merely on a perceived notion of bias, and there must be substantial and compelling reasons for a transfer.
Point of Law : One of principles of administration of justice is that justice should not only be done but it should be seen to have been done.
The discretionary nature of the power to transfer proceedings, the need for reasonable apprehension of bias to transfer a case, and the duty of the Family Court to make efforts for settlement under S....
Point of law: A petition filed under Section 24 of Code seeking transfer of case shall not be based on conjectures and mystic maybes - The onus is on the person who alleges bias to substantiate that ....
Allegations of bias against a judicial officer should be supported by substantial evidence and not made lightly, and requests for transfer should be based on justified reasons and not tantamount to f....
Allegations of bias against a judicial officer must be substantiated with genuine evidence and not mere dissatisfaction with proceedings to maintain judicial integrity.
The judgment emphasizes the need for impartiality and fair trial, and discusses the reasonableness of the apprehension of bias affecting the decision.
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