Sidrathul Munthaha vs Tharik

C.S.Dias, J

The petitioner seeks transfer of O.P. No.511/2021 from the file of the Family Court, Malappuram, alleging bias against the learned Judge.

The relevant facts in the memorandum of transfer petition are:

(i) The petitioner is the wife of the 1st respondent. They have a 12-year-old daughter born in their wedlock. The 1st respondent has filed O.P.No.511/2021 (Annexure-A1) against the petitioner and the 2nd respondent for the permanent custody of their daughter. The 1st respondent has alleged that the petitioner is living with the 2nd respondent. Along with Annexure-A1, the 1st respondent had filed I.A. 2 of 2021 (Annexure-A2) for the interim custody of the child• The petitioner objected to the application by filing Annexure-A3 counter statement. The Family Court allowed Annexure-A2 application by Annexure-A4 order, granting the 1st respondent interim custody of the child for five days, i.e., from 13.8.2021 to 18.8.2021.

(ii) The learned Judge of the Family Court directed the child to be produced again on 26.8.2021. On that day, the learned Judge ordered the Principal Counsellor to record the child’s statement. Then, the learned Judge forwarded the statement with Annexure-A5 letter to the Station House Officer, Manjeri and sent the child with the 1st respondent. A crime was registered against the petitioner, alleging that she had beaten the child. Again on 02.09.2021 another statement of the child was recorded and a crime was registered against the 2nd respondent alleging that had committed an offence against the child under the Protection of Children from Sexual Offences Act. Subsequently, the Family Court passed Annexure- A8 order granting the interim custody of the child to the 1st respondent.

(iii) On 16.2.2022, the child gave a statement to the school authorities alleging that the 1st respondent had beaten her and she was unwilling to reside with him. The child was produced before the Child Welfare Committee (in short, CWC), Kakkanad.

(iv) The petitioner had submitted an application for the custody of the child, but the same was rejected, and the child was sent to a Children’s Home. Again, the petitioner filed Annexure-A9 application for the custody of the child. The Family Court sought a report from the CWC. Even though, as per Annexure-A10 report, the child expressed her desire to go with the petitioner, the Family Court sent the child to SOS Children's Village, Aluva.

(v) Aggrieved by the action of the Family Court, the petitioner preferred O.P(FC) No.119/2022 before this Court. By Annexure-A11 order, this Court handed over the custody of the child to the petitioner. Subsequently, Annexure-A12 order and Annexure-A13 judgment were passed, permitting the child to be with the petitioner. The child has stated to the CWC that it was at the instance of the learned Judge that the child gave the statement against the petitioner.

(vi) Annexure-A1 proceeding is being jointly tried with O.P.No.767/2019 and MC No.24/2020. The cases were posted for trial on 13.4.2022. The petitioner sought an adjournment on the ground that she was filing the transfer petition.

(vii) In addition to the above incident, despite the petitioner's objection, the learned Judge has lifted an order of attachment before judgment passed in O.P.No.767/2019.

(viii) The petitioner does not repose confidence in the learned Judge. She is definite that she will not get justice. Hence the transfer petition.

The 1st respondent has filed a counter affidavit denying the allegations in the transfer petition. He has, inter alia, contended as follows:

(i) The passing of an order by the court cannot be treated as a ground or foundation to transfer a case. The learned Judge had granted the 1st respondent interim custody to secure the paramount welfare of the child. The Family Court has not exceeded its jurisdiction as alleged in the transfer petition.

(ii) On 26.8.2021, the child told the learned Judge and the Counsellor that the petitioner assaulted her with a wooden reaper for going with the 1st respondent. The petitioner threatened to murder the child. The learned Judge forwarded the statement of the child to the Police in discharge of his judicial functions.

(iii) It is unfortunate that the petitioner has attributed bias against the learned Judge of the Family Court.

(iv) This Court has, in O.P (FC) No. 119/2021, issued a series of directions against the petitioner for violating the interim orders. Even though this Court had directed the petitioner not to take the child outside the jurisdiction of the Ernakulam District, she flouted the direction and took the child to Malappuram.

(v) The  petitioner  is  residing  with  the  2nd respondent, and they have a child born in their relationship. The transfer petition is nothing but a frivolous litigation filed with the ulterior intention to protract the determination of the cases. Hence, the transfer petition may be dismissed.

The petitioner has filed a reply affidavit denying the allegations in the counter affidavit. She has stated that she has filed a complaint against the learned Judge before the Registrar of this Court, and an enquiry is in progress.

The 1st respondent has filed an additional counter affidavit and placed materials to establish the antecedents of the petitioner.

When the transfer petition came up for admission on 31.5.2022, this Court had called for a report from the learned Judge regarding the allegations in the transfer petition. The learned Judge, by communication dated 17.6.2022, has stated as follows:

In compliance with the official memorandum I submit the following report:

“All the allegations raised against me in Tr.P(C) No.244/2022 with respect to the conduct of proceedings in OP No.511/2021 are false and denied. Child was produced on 13.8.2021.

On that day she expressed the desire to go with her father as well but insisted that her wish shall not be revealed to the petitioner-mother. She had expressed the apprehension that her mother-petitioner will punish her if her wish was revealed to the mother-petitioner. Apart from Principal Counselor, I had interacted with child on that day. The child had also revealed that her mother was putting pressure on her to speak against the father. Considering the wish of the child, the child was handed over to the father until 18.8.2021 with a direction to produce the child on 18.8.2021. On 18.8.2021 child was produced and was handed over to the petitioner-mother with a direction to produce her on 26.8.2021. While handing over the child to the petitioner on 18.8.2021 I had orally warned petitioner not to punish the child in any way. That was made considering the fear expressed by the child on the first day. petitioner-mother had produced the child on 26.8.2021. While the case was kept over for consideration, through officers of the Court child had informed me that she wanted talk to me. I had sent child to the Principal Counsellor. After interaction with child Principal Counselor informed me that child wanted to make a complaint. During lunch break I had interacted with the child in the presence of Principal Counsellor; child complained that petitioner-mother had assaulted her with a wooden stick. Child was aggrieved and was not in a mood to forget it. It was evident that child desired some action on her complaint. I had got her complaint recorded by the Principal Counsellor. It was forwarded to the concerned police officer for ncessary action. The child preferred to stay with the father. Considering the complaint made by the child and her preference she was sent along with the father.

Child was produced on 2.9.2021. On that day, for final disposal of the interim petition, the wish of the child was further ascertained through Principal Counsellor. Report of Principal Counselor, among other things stated that child had said that present husband of petitioner-mother used to kiss and hug her. By a speaking order passed on 7.9.2021 the child was handed over to the father. The petitioner had not challenged that order until the making of alleged complaint by the child on 16.2.2022.

I am not aware of the statement if any given by the child under section 164 of the Cr.P.C. The statement given against me if any can only be false. It is not true that I had ventured to extract false statement from the child and initiated police case against the petitioner.

The lifting of attachment of in OP No.767/2019 was made in the normal course of judicial proceedings as sufficient security was furnished. That order happened to be vacated on production of further materials by petitioner on a subsequent day. OP 767/2019 and connected MC 24/2020 filed by the petitioner-mother were listed for trial to 2.3.2022. The order to list the case was passed on 10.3.2022. However, the petitioner had not filed any petition for transferring the case until 13.4.2022. OP 767/2019 and connected MC 24 of 2020 were old cases pending in this court included in the target category and had to be disposed of before 31.5.2021. Those petitions happened to be dismissed as petitioner was not ready to adduce evidence nor had taken any timely action for transferring the case.

The petitioner was never getting ready for trial. Several lawyers of the petitioner have relinquishing vakalaths. Lastly petitioner had appeared in person.

I will be much relieved if OP 511 of 2011 and connected cases are transferred to some other court. OP 767/2019 and connected MC 24 of 2020 can be restored and transferred on restoration”.

Heard; Sri.Ahamed Fazil, the learned counsel appearing for the petitioner and Sri.Babu Karukapadath, the learned counsel appearing for the 1st respondent.

The point is whether sufficient grounds are established to transfer O.P.No.511/2021 from the Family Court, Malappuram, to the Family Court, Tirur.

The petitioner has sought transfer of the case on two acts of bias committed by the learned Judge (a) the learned Judge made the Principal Counsellor record the statement of the child and forwarded it to the Police and, thereafter, handed over the custody of the child to the 1st respondent (b) the learned Judge lifted an order of attachment before judgment in O.P.No.767/2019 and permitted the 1st respondent to substitute the security. Indisputably, both are judicial orders.

This Court in Abraham Thomas Puthooran v. Manju Abraham and another [2022 (1) KHC 360] held thus:

“30. The appellant has no case that the Family Court has passed any orders contrary to the law on the point. Passing of an erroneous order by a court is not a ground for transfer under Section 24 of the Code, and it is for the aggrieved party to challenge that order before the appellate or revisional court by filing an appeal or revision or by invoking the supervisory jurisdiction under Article 227 of the Constitution of India”.

The petitioner had challenged the order granting interim custody of the child to the 1st respondent by filing O.P (FC) No.119/2022. It is apposite to extract the observations made by a Division Bench of this Court in Annexure-A11 order, which reads thus:

“We interacted with the child. The child expressed her desire to be with the mother. On interaction with the child by one of us namely, Justice Sophy Thomas, we are sure that, both parents used the child for their own personal gain. We take serious exception to the attitude and conduct of the parents. We make it clear that, we will be constrained to take action against them, if they make any attempt to explicit the child's innocent mind for their own personal gain.

With the above observation and clear warning to the mother as well, now we give custody of the child to the mother”.

Subsequently, this Court, by Annexure-A13 judgment, disposed of the original petition as follows:

“4. Today, the child is present. Again we ascertained her willingness. She wants to be with her mother.

The Family Court has given the custody to the father noting certain ill-treatment meted out to the child by the mother while she was with the mother. There are allegations against the mother. The second respondent is said to be the paramour of first respondent. As of now we are not in a position to go into the merits of the case because the same would affect the on going trial before the Family Court. Taking note of the fact that the child is comfortable with the mother, we let the child to be with the mother till the conclusion of the proceedings before the Family Court. Mother is also permitted to take the child to Malappuram. We direct the Child Welfare Committee, Malappuram to have an overall supervision of the child, while the child is in the custody of the mother at Malappuram and report time to time before the Family Court, Malappuram. We also direct the Family Court, Malappuram to conclude the trial within a period of two months after hearing both sides. No further directions are required in this matter. This original petition is disposed of with the above observations”.

Thus, the order passed by the Family Court granting interim custody of the child to the 1st respondent was set aside by this Court by Annexure A-13 judgment and the Family Court was directed to conclude the proceedings within two months.

Annexure-A13 judgment was passed on 5.4.2022, and the transfer petition is filed on 21.4.2022, i.e., within two weeks. This Court admitted the transfer petition and stayed all further proceedings in O.P. No.511/2021 pending disposal of the transfer petition.

On a reading of the report of the learned Judge, it is apparent that it was as per the wishes of the child that she was handed over to her father ― the 1st respondent. Subsequently, the child complained about the petitioner, and her statement was recorded by the Principal Counsellor, which prima facie constituted an offence. The learned Judge forwarded the statement to the jurisdictional Police. The said deed can never be categorised as an act of bias. Instead, it can only be said that the learned Judge acted with due diligence.

The other act of bias is that the learned Judge had lifted an order of attachment before judgment in O.P.No.767/2019. The learned Judge has stated in the report that on the 1st respondent furnishing sufficient security, the order of attachment was lifted. If the petitioner was aggrieved by the same, her remedy was to challenge it in appeal.

In R.Balakrishna Pillai v. State of Kerala [(2000) 7 SCC 129], the Honourable Supreme Court held as follows:

“3. …………....It is true that one of the principles of administration of justice is that justice should not only be done but it should be seen to have been done. However, a mere allegation that there is the apprehension that justice will not be done in a given case is not sufficient. Before transferring the case court has to find out whether the apprehension appears to be reasonable. To Judge the reasonableness of the apprehension, the state of mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must appear to the court to be reasonable, genuine and justifiable. In the present day scenario, if these types of applications are entertained, the entire judicial administration would be polluted with frivolous petitions for various reasons”.

Almost on the above lines, the Honourable Supreme Court in Harita Sunil Parab v. State of NCT of Delhi and Others, [(2018) 6 SCC 358] has reiterated the proposition on law of the transfer of a case on the ground of bias as follows:

“8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard and fast rule can be prescribed for deciding a transfer petition which will always have to be decided on the facts of each case.”

This Court in Berely v. Xavier and another [1986 KLT 1078] has observed thus:

“13. This Court has noticed an increasing tendency to file such transfer petitions on the basis of unfounded allegations against Criminal Courts. Sessions Judges and Magistrates had occasion to complain that they are facing considerable difficulties in the conduct of trials. Very often they are told to their face “you may dismiss the petition. I will go to the High Court” (In this case also, the defence counsel told the Sessions Judge that when he makes a particular averment in the transfer petition before the High Court, the Sessions Judge should not deny it). Such actions have a demoralising effect on the criminal judiciary and seriously affect administration of criminal justice. No person, not a litigant, not a counsel, not a prosecutor, not a court should contribute anything to the demoralisation of the criminal judiciary. Apparently, threat of filing transfer petition is being held as Damocles sword against judicial officers. I see only a reaction, perhaps an avoidable one, on the part of the learned Sessions Judge to this situation. Viewed in the background of the findings recorded in the order dismissing the transfer petition, there is no doubt that the allegation of bias against the learned Sessions Judge was baseless and unfounded.”

Another Division Bench of this Court in Dr.Sini v. B.Suresh Jyothi [AIR 1996 Ker 160] has held that mere apprehension of a petitioner is insufficient to transfer a case from the file of one court to another.

The above precedents crystalise the law that an allegation of bias should not be on conjectures and mystic maybes.

An allegation of bias is a serious issue that is to be dealt with, with due caution and circumspection because its truth and falsity are separated by a narrow margin. The bias should be real and not mere surmises or morbid suspicions. If the allegation is true, it calls for immediate transfer of the case; if not, it has to be sternly dealt with an iron hand; otherwise, it will shatter the confidence of the Presiding Officer and rattle the justice delivery system. Accepting an allegation of bias without substantial material puts the judiciary's credibility and independence at stake. The onus is on the person who alleges bias to substantiate that his apprehensions are reasonable, genuine and justifiable.

It  is  common  knowledge  that  Family Courts function in a charged atmosphere, with emotions running high. Even casual observations made by Presiding Officers are misconstrued, misinterpreted and perceived as remarks passed against the litigants.

The Honourable Supreme Court in Buvan Mohan Singh v. Meena & Others [AIR 2014 SC 2875] observed as follows:

“14. ………………. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc. xxx”.

The litigation between the petitioner and the 1st respondent commenced in 2019, with the petitioner filing O.P No.767/2019. Subsequently, the petitioner filed MC No.24/2020 and the first respondent filed O.P. No.511/2021. The three cases were consolidated and are being jointly tried. The petitioner did not have any complaint of bias till the passing of Annexure A-13 judgment by this Court. It was immediately after this Court directed the cases to be disposed of within two months from 05.04.2022 that the petitioner has come up with the allegation of bias and filed the transfer petition. If there was any truth or substance in her assertion, she would have certainly raised the allegation before this Court when Annexure A-13 was being passed. I am unable to draw any inference of reasonable apprehension of bias based on the allegation in the transfer petition. The insinuation against the learned Judge is unfortunate, unwarranted and nothing but a ruse to get over the time frame fixed by this Court and protract the determination of the cases. On the basis of the interim order passed in the transfer petition, the petitioner has, in a way, been successful in getting the time frame prolonged. The transfer petition is groundless and devoid of any merits. It is accordingly dismissed with a cost of Rs.15,000/- to be deposited by the petitioner before the Family Court within two weeks from today, which shall be paid to the 1st respondent as his cost for the proceeding.