Kerala High Court
Jain Paul Kuriakose vs Asha Babu on 18 January, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934
Tr.P(C).No. 368 of 2012 ()
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(SEEKING TO TRANSFER O.P. NO.115/2011 of FAMILY
COURT,ERNAKULAM TO THE FAMILY COURT, MOOVATTUPUZHA
OR TO ANY OTHER COURT)
PETITIONER(S):
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JAIN PAUL KURIAKOSE, AGED 32 YEARS
S/O. LATE KURIAKOSE, PARUTHIVAYALIL HOUSE,
KEEZHILLAM.P.O., PERUMBAVOOR.
BY ADVS.SRI.G.SREEKUMAR (CHELUR)
SRI.K.RAVI (PARIYARATH)
RESPONDENT(S):
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ASHA BABU
D/O. A.P. BABU, ATHANICKAL HOSUE, RAVIPURAM.P.O.
ERNAKULAM-682016.
R1 BY ADV. SRI.K.RAMAKUMAR (SR.)
R1 BY ADV. SRI.S.M.PRASANTH
R1 BY ADV. SMT.SMITHA GEORGE
THIS TRANSFER PETITION (CIVIL)HAVING BEEN FINALLY HEARD
ON 10-10-2012, ALONG WITH TPC.369/2012, TPC.370/2012,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Tr.P(C).No. 368 of 2012
APPENDIX
PETITIONER(S) EXHIBITS
Annexure-I A true copy of the O.P No.115 of 2011 before the
Family Court at Ernakulam dated 18.1.2011.
Annexure-II A true copy of the Order passed in M.P No.32 of
2012 in M.C No. 18 of 2012 on the file of the
Family Court, Ernakulam dated 8.2.2012.
Annexure-III A true copy of the Commissioner's report filed as
per the proceedings in I. A. No.5944 of 2011 in
O.P No.2048 of 2011 on the file of the Family
Court, Ernakulam dated 13.7.2012.
Annexure-IV A true copy of the application filed as
I.A. No. 2185 of 2012 in O.P. No. 2048 of 2011
dated 23.7.2012.
Annexure-V Copy of affidavit filed by the petitioner before
this Hon'ble Court in O.P.(FC) No. 3664 of 2011
RESPONDENTS' EXHIBITS : NIL
//TRUE COPY//
P.A. TO JUDGE
ss/
C.R
A. V. RAMAKRISHNA PILLAI, J.
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Tr.P.C.Nos.368, 369 & 370 of 2012
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Dated this the 10th day of October, 2012
ORDER
In these petitions, three separate proceedings viz, O.P Nos.115/2011, 888/2011 & 2048/2011 relating to matrimonial dispute between the petitioner and his wife pending before the Family Court, Ernakulam, are sought to be transferred to the Family Court, Muvattupuzha, alleging bias against the Presiding Officer.
2. O.P.Nos.115/2011 and 888/2011 were filed by the petitioner seeking custody of the minor child and for dissolution of marriage. O.P.No.2048/2011 was filed by the wife of the petitioner seeking recovery of ornaments and realisation of money from the petitioner. Petitioner's wife figures as the sole respondent in Tr.P.C.No.368/2012 and as the first respondent in the other transfer petitions.
3. The marriage between the parties was solemnized on 15/02/2008 and their wedlock is blessed with a girl child. The petitioner's wife is an Advocate by profession who is practicing before various courts at Ernakulam, including this Court as well as the neighbouring sub centres. The strained relationship between the parties led to the proceedings before the Family Court, Ernakulam.
Tr.P.C.368,369&370/2012 :2:
4. The grievance of the petitioner is that in the adjudication process before the court below his wife is misusing her profession as an Advocate and is attempting to make benefits out of the same standing in a position as a lawyer practicing in the same court as well. According to the petitioner his interest is being sidelined and he seriously apprehends that the proceedings may have a tendency to be one sided i.e., against him. He would state that his apprehension is reasonable and thus, seeks transfer of the aforesaid three petitions now pending before the Family Court, Ernakulam to the Family Court, Muvattupuzha.
5. Arguments have been heard and the records as well as the impugned orders were perused.
6. This Court obtained remarks from the Presiding Officer of the Family Court, Ernakulam, as regards the contents of the transfer petitions through the Registry. The learned Family Court Judge has reported that more than 4500 cases are pending before her and cases at an average rate of three to five are being taken to her Chambers for counseling on almost all days, that too, at the request of both parties. She would state that, it is for the first time in her official career of thirty four years, such an allegation was made against her. She has emphatically denied the allegation as false and frivolous. It was stated that there are a good number of cases pending before that court where Advocates practicing before difference courts are parties and the Tr.P.C.368,369&370/2012 :3:
respondent is only one among them. Though the learned Judge has stated that she has no objection in transferring these cases from that court, it was asserted by her that she has the confidence to dispose of the cases pending before her with utmost impartiality and without any bias.
7. Following are the allegations raised in these petitions:
i) The respondent was given undue importance whenever the issues between the parties were deliberated. The respondent's status as a practicing lawyer is given much importance.
ii) Direction to provide interim maintenance to the respondent was given by the Judge, though it was submitted that the petitioner was broken financially.
iii) An Advocate Commissioner who was deputed to verify the deposits in the bank and certain other things did not file the report in time and in spite of pressing urgency pointed out by the petitioner, no direction was given to the Advocate Commissioner to file the report within a reasonable time.
iv) An application was filed by the respondent in which the prayer made is to advance the case and to post the same in the Chambers of the Judge for counselling.
8. These circumstances, according to the petitioner, reflect the partisan attitude of the Presiding Officer and he suspects that he will not Tr.P.C.368,369&370/2012 :4:
get substantial justice and the adjudication could be one sided, the respondent being a lawyer practicing in the said court and also being a women.
9. From the apparent tenor it appears that the petitioner is imputing personal bias against the Presiding Officer. The word "bias" according to the Oxford dictionary is "any opinion or feeling that strongly follows one side in an argument or one thing in a group, sometimes unfairly ; a prejudice". That means anything which tends or may be regarded as tending to cause a Judge to decide a case otherwise than on evidence must be held to be biased. In other words,"a predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias." (see Secretary to The Government, Transport Department, Madras v. Munuswamy Mudaliar (AIR 1988 SC 2232). A number of circumstances may give rise to personal bias. A Judge may be a relative, friend or associate of a party. He may have some personal grudge, enmity or grievance or professional rivalry against one of the parties. In view of these factors, there is every likelihood that the Judge may be biased towards one party or prejudiced towards the other. (see Griffith and Street: Principles of Administrative Law, 4th Edn., p.156).
10. The test is whether there is "a real likelihood of bias" in the Judge. In the words of Lord Hewart, the answer to the question whether Tr.P.C.368,369&370/2012 :5:
there was a real likelihood of bias, depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice (R. V. Sussex Justices (1923) ALL ER.233).
11. Lord Denning says:-
"The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right- minded people go away thinking 'the judge was biased'."
(see Metropolitan Properties Ltd. v. Lannon (1968) 3 All E.R. 304)
12. In Manak Lal v Dr. Prem Chand (AIR 1957 SC 425) Justice Gagendragadkar speaking for the court observed -
"In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the Tribunal. "
13. Here, I would also like to remember the following observation of Frank, J (Linahan, Re(1943 138 F. IInd 650):-
"If, however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial, and no one ever will. The human mind, even at infancy, is no blank Tr.P.C.368,369&370/2012 :6:
piece of paper. We are born with predispositions and the processes of education, formal and informal, create attitudes which precede reasoning in particular instances and which ,therefore, by definition are prejudices."
Therefore, where bias is alleged it becomes necessary to consider whether there is a reasonable ground for assuming bias and whether it is likely to cast a reasonable doubt in the mind of a reasonable man about the fairness of the trial. In other words, the test of real likelihood of bias must be based on the reasonable apprehension of a reasonable man wholly appraised of the facts. These are questions of facts to be decided on the facts and circumstances of each case.
14. In the case on hand, certain orders passed by the learned Family Court Judge which were not comfortable to the petitioner are pointed out as the circumstances to hold that the respondent is having an upper hand in the proceedings before the court below. I could not find anything unusual in the orders passed against the petitioner. The mere fact that the respondent who is the wife of the petitioner is an Advocate practicing in different courts in the district including the Family Court is not a valid reason to attribute bias against the Presiding Officer.
15. Since the family matters are sensitive in character the Judges of the Family Court have to play a greater participatory role.
Tr.P.C.368,369&370/2012 :7:
Parties will have to be called to the Chambers at times and this is only to achieve the object contemplated by the statute. Going through the report submitted by the Family Court Judge, I do not think that she would indulge in any type of illegal practices. Attempts to settle the matter by the court or mediators could only be taken as a part of business of the court. Such sincere efforts by the Presiding Officer cannot be branded as prejudicial by the parties. As observed by this Court in Balachandran v. Meena (1999 (1) KLT 769), Family Courts Act constitutes the Judge to some extent also a conciliator of the dispute. In that process the Judge is forced to talk to the parties and try to bring them together. There is nothing wrong in the respondent's request to have the conciliation talk in the Chambers of the Judge. The very request of the respondent to advance the case and to post the same for counselling reveals her wish to have an early verdict, that too, through the path of peace and harmony. It appears that it is not palatable to the petitioner.
16. Going through the allegations made mention of in these petitions, I do not find any justifiable reason for transferring these petitions from the Family Court, Ernakulam, to the Family Court, Muvattupuzha. The mere apprehension of the petitioner that the final result of the lis would be against him as the respondent is an Advocate practicing before different courts at Ernakulam District, is not sufficient Tr.P.C.368,369&370/2012 :8:
to warrant a transfer. I am given to understand that the respondent is appearing before the courts at Muvattupuzha also. That being the case, a transfer to Family Court, Muvattupuzha is not going to remove the apprehension of the petitioner. If such frivolous requests based on adulterated reasons and misapprehensions are heeded to, it will pave way to the likelihood of making uncharitable allegations by like minded persons against honest judicial officers which will only shatter their morale leaving the justice delivery system at its peril. Though the learned Family Court Judge has no objection in transferring the case, the very assertion made by her that she has the confidence to dispose of the cases impartially would dissuade this Court from allowing these petitions. I am of the definite view that the Presiding Officer has to be given an opportunity to honour the assertions made by her. If these petitions are transferred, she will be denied of that opportunity.
In the result, these petitions fail and accordingly they are dismissed.
Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE //TRUE COPY// P.A TO JUDGE krj