Kerala High Court
Sheney P vs Jayaprakash E.P on 25 March, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Tr.P.(Crl) No.11/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
TR.P(CRL.) NO. 11 OF 2025
AGAINST MC NO.89 OF 2018 OF FAMILY COURT,
PATHANAMTHITTA
PETITIONERS:
1 SHENEY P
AGED 47 YEARS
W/O JAYAPRAKASH E.P., HAVING PERMANENT ADDRESS AT
ANJALI HOUSE, THUVAYOOR SOUTH P.O., KADAMBANADU
VILLAGE, ADOOR TALUK, PATHANAMTHITTA- 691551, NOW
RESIDING AT ARA 25, CHAITHANYA GARDEN,
KONJIRAVILA, MANACAUD P.O., THIRUVANANTHAPURAM,
PIN - 695009
2 AMRITHA JAYAPRAKASH
AGED 26 YEARS
D/O JAYAPRAKASH, HAVING PERMANENT ADDRESS AT
ANJALI HOUSE, THUVAYOOR SOUTH P.O., KADAMBANADU
VILLAGE, ADOOR TALUK, PATHANAMTHITTA- 691551, NOW
RESIDING AT ARA 25, CHAITHANYA GARDEN,
KONJIRAVILA, MANACAUD P.O., THIRUVANANTHAPURAM,
PIN - 695009
BY ADVS.
KEVIN JAMES
ATHUL M.V.
ASWIN V. NAIR
RESPONDENT/RESPONDENT:
JAYAPRAKASH E.P
AGED 54 YEARS
S/O PADMANABHAN NAIR, RESIDING AT AMRITHSAGAR,
THENIPALAM P.O., KADAIKKATTUPARA ROAD, MUDRA
CORNER, MALAPPURAM DISTRICT, PIN - 673636
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THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 20.03.2025, THE COURT ON 25.03.2025 DELIVERED
THE FOLLOWING:
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ORDER
This transfer petition has been filed to transfer MC No.89/2018, which is pending on the files of the Family Court, Pathanamthitta, to the Family Court, Kollam apprehending bias on the part of the Judge.
2. The 1st petitioner is the wife of the respondent and the 2nd petitioner is the daughter born to the 1 st petitioner and the respondent. The petitioners filed MC No.89/2018 before the Family Court, Pathanamthitta claiming maintenance. The Family Court rejected the claim of the petitioners for maintenance as per the order dated 25/10/2023. The petitioner challenged the said order before this Court in RPFC No.16/2024. This court as per Annexure A3 order set aside the finding in the order of the Family Court that the 1st petitioner is not entitled to claim maintenance and held that she can claim maintenance from the respondent. MC was remitted to the Family Court to decide the quantum of maintenance with a direction to the parties to appear before the Family Court on 18/2/2025. It is thereafter the petitioners have filed the above transfer petition apprehending bias on the part of the Family Court Judge.
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3. I have heard Sri.Kevin James Manatharayil, the learned counsel for the petitioners.
4. The learned counsel for the petitioners submitted that the petitioners are not likely to have a fair adjudication before the Family Court, Pathanamthitta as they bonafidely believe that they will not get justice if the quantum of maintenance is decided by the learned Judge of the Family Court. The learned counsel further submitted that from the conduct of the Family Court Judge while the matter was decided earlier, the petitioners apprehend that they would not receive a fair and impartial trial from the Family Court, Pathanamthitta. The learned counsel placed reliance on the decisions of this Court in Rev.Fr.Punnen Thomas and Another v. Moran Mar Bassalios and Others (1963 KHC 360) and Renu Alex v. Alexander Muthalali [2012 (2) KHC 717] and submitted that when a transfer petition is filed for the reason that there is bias or prejudice on the part of the Court, concrete proof to such bias need not be insisted upon and mere apprehension of denial of justice is sufficient.
5. As stated already, the transfer has been sought mainly on the ground of apprehension of bias or prejudice on the part of the Judge of the Family Court. The following two incidents have been cited by the petitioners to substantiate their plea. Tr.P.(Crl) No.11/2025
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(i) On 18/8/2023, the petitioners filed Crl. M.P.No.6/2023 to strike off the defence of the respondent for non-payment of interim maintenance. No objection was filed by the respondent to the said petition. On 13/9/2023, when the matter came up before the Family Court, the Judge openly declared that he would not hear the petition for striking off the defence of the respondent. In the afternoon session, the learned counsel for the petitioners insisted on hearing the petition. Then the Family Court Judge sharply reacted to the counsel saying that he would not consider it. This has resulted in heated arguments between the counsel for the petitioners and the Judge. From there started the antagonistic approach of the Judge towards the petitioners. The Judge was not accepting any of the contentions of the petitioners' counsel and was openly repelling those arguments.
(ii) Though the MC was posted for orders on 28/10/2023, the order was passed on 25/10/2023 without intimating the petitioners.
6. I have called for a report from the learned Family Court Judge with respect to the above allegations. The learned Judge Tr.P.(Crl) No.11/2025 2025:KER:24871 :6: forwarded a report. The learned Judge in the report has made it clear that he has not shown any reluctance either to consider the application filed by the petitioners to strike off the defence of the respondent for non-payment of interim maintenance or to hear the petition for enforcement of interim maintenance. All the other allegations regarding heated arguments between the petitioners' counsel and the Judge are also denied. I see no reason to disbelieve the explanation of the learned Judge. The report would further show that Crl. M.P.No.6/2023 was heard on 21/9/2023 and dismissed on merits. So far as the second ground is concerned, the report would show that the MC was finally heard on 21/9/2023 and disposed of on 25/10/2023.
7. The explanation offered by the Judge of the Family Court shows that the apprehension of bias put forward by the petitioners is absolutely baseless. That apart, it is pertinent to note that the petitioners did not file any application for transfer before the remand. There is no case for the petitioners that after the remand was made, there was any conduct on the part of the Judge to apprehend bias or prejudice. As per Annexure A3 order, the parties were directed to appear before the Family Court on 18/2/2025. Even before that, the petitioners rushed to this court and filed the transfer petition.
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8. The law with regard to the transfer of cases is well settled. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of the trial. A three- judge Bench of the Supreme Court in Gurcharan Dass Chadha v. State of Rajasthan (AIR 1966 SC 1418) has held that mere allegation that there is apprehension that justice will not be done in a given case is not sufficient and the Court has further to see whether the apprehension is reasonable or not. In Abdul Nazar Madani v. State of T.N. [(2000) 6 SCC 204], the Supreme Court held that the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. In Nahar Singh Yadav and another v. Union of India and Others [(2011) 1 SCC 307], it was held that there has to be a real apprehension that there would be a miscarriage of justice. In Usmangani Adambhai Vahora v. State of Gujarat [2016 (1) KLT SN 117 (C.No.127) SC], it was held that seeking transfer at the drop of a hat is inconceivable. As stated already, the reason shown for the transfer and the apprehension expressed by the petitioners is absolutely mercurial and cannot remotely be stated to be reasonable.
9. The petitioners have also taken up a contention that Tr.P.(Crl) No.11/2025 2025:KER:24871 :8: the 1 petitioner is presently residing in a rented accommodation st at Thiruvananthapuram and working as a temporary employee in Matsyafed and it would be convenient for her if the case is transferred to Thiruvananthapuram. The purpose of remand is only to decide the quantum of maintenance. Not much evidence is required. The presence of the petitioners is required only if they want to give evidence, that too on a single day.
For the reasons stated above, I see no reason to transfer the case. Accordingly, the transfer petition is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE Rp Tr.P.(Crl) No.11/2025 2025:KER:24871 :9: APPENDIX OF TR.P(CRL.) 11/2025 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE CASE FILE OF TR.P. (C) NO. 844/2023 OF THE HON'BLE HIGH COURT Annexure A2 THE TRUE COPY OF THE JUDGMENT DATED 11/01/2024 OF THE HON'BLE HIGH COURT IN TR.P.(C) NO. 844/2023 Annexure A3 THE TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 27/01/2025 IN R.P.F.C. NO. 16/2024 Annexure A4 THE TRUE COPY OF THE FACE BOOK POST OF THE RESPONDENT DATED NIL THREATENING THE PETITIONER