* THE HON’BLE Dr. JUSTICE SHAMEEM AKTHER
+ Transfer Civil Miscellaneous Petition No.229 of 2019
% Dated 23.01.2020
#Smt. Pooja Tipirneni
… Petitioner
Vs.
$ Sri Tipirneni Harsha
..Respondent
! Counsel for the Petitioner: Sri Prabhakar Sripada,
^ Counsel for the Respondents: Sri T.Bala Mohan Reddy
HEAD NOTE:
? Cases referred
1. 2001 AIHC 1310
2. (1998) 4 SCC 577
3. (1994) 6 SCC 19
2
THE HON’BLE Dr. JUSTICE SHAMEEM AKTHER
TRANSFER C.M.P.No.229 of 2019
ORDER:
This Transfer Civil Miscellaneous Petition, under Section
24 of the Code of Civil Procedure, 1908, is filed by the
petitioner/wife, seeking to withdraw F.C.O.P.No.367 of 2018
from the file of the Family Court, City Civil Court,
Secunderabad, and transfer the same to the Family Court, City
Civil Court, Hyderabad, for trial and disposal in accordance with
law.
2. Heard the submissions of Sri Prabhakar Sripada, learned
counsel for the petitioner/wife, Sri T.Bala Mohan Reddy, learned
counsel for the respondent/husband and perused the record.
3. The learned counsel for the petitioner/wife would contend
that the marriage between the petitioner/wife and the
respondent/husband was performed on 05.02.2003 at
Secunderabad. Out of the wedlock, the couple was blessed
with a male child. Subsequently, disputes arose between the
couple and the petitioner/wife is residing separately from the
respondent/husband for the last five and half years. The
respondent/husband is a homosexual and he had sexually
abused the minor child in the past. The petitioner/wife had
filed a complaint against the respondent/husband regarding the
same. Subsequently, the respondent/husband filed the subject
F.C.O.P.No.367 of 2018 before the Court below under Sections
7, 10 and 25 of the Guardians and Wards Act, 1890, read with
3
Section 6 of Hindu Minority and Guardianship Act, 1956,
seeking custody of the minor child. In the said F.C.O.P., the
respondent/husband had earlier filed I.A.No.680 of 2018
seeking custody of the minor child and the Court concerned
granted custody of minor child from 15.06.2018 to 30.06.2018
in favour of the respondent/husband. The petitioner/wife
challenged the said order by filing C.R.P.No.4055 of 2018
before this Court, wherein, this Court had set aside the said
order and restored the custody of the minor child to the
petitioner/wife. The order passed by this Court in CRP No.4055
of 2018 was upheld by the Hon’ble Apex Court in
S.L.A.(C)No.7536/2019, dated 29.03.2019. Thereafter, the
respondent/husband filed another application in I.A.No.470 of
2019 before the Court below seeking custody of the minor
child. In that application, the Court below summoned the child
and interrogated him in a frightening manner. The minor child
had not made the statements which were recorded by the Court
below in the order, dated 06.06.2019, passed in the said
interlocutory application. When the petitioner/wife asked the
minor child as to what he stated before the learned Judge of
the Court below, the minor child denied the statements
recorded by the Presiding Officer of the Court below. The Court
below, though recorded a finding that the minor child had
expressed his disinterest to go to his father, allowed the said
I.A.No.470 of 2019 and thereby, exhibited biased nature in
favour of the respondent/husband. The Court below also
overlooked the video footage of the examination of the minor
4
child by a woman police officer and ignored to look into the
report lodged by the petitioner/wife under POCSO Act. These
aspects show the biased attitude of the Court below. If the
subject FCOP continues to be on the file of the Family Court,
City Civil Court, Secunderabad, it may cause great prejudice to
the petitioner/wife in view of the biased attitude of the
Presiding Officer of the said Court and ultimately prayed to
withdraw F.C.O.P.No.367 of 2018 from the file of the Family
Court, City Civil Court, Secunderabad, and transfer the same to
the Family Court, City Civil Court, Hyderabad, for trial and
disposal in accordance with law.
4. The respondent/husband filed a detailed counter and
contended that this transfer petition is filed without valid
grounds and reasons and is devoid of merit. The
petitioner/wife is trying to cast aspersions on the learned
Presiding Officer of the Court below. A complaint was lodged
by the petitioner/wife under POCSO Act against the
respondent/husband with false and ulterior motives. The said
complaint was closed due to lack of evidence. The
respondent/husband is not homosexual. He has not tutored the
child at all. In fact, in CRP No.4055 of 2018, this Hon’ble High
Court interacted with the minor child and was pleased to
observe that the child was extremely happy with the father
(respondent herein) and he was not tutored at all. The
petitioner/wife is in the habit of making allegations against the
learned Presiding Officers of the Courts. The petitioner/wife
5
has no respect towards the Courts and the orders passed by
the Courts. She never complied the directions of the Courts
and would approach higher Courts on every petty issue. The
personal opinions of the petitioner/wife cannot be attributed to
the learned Presiding Officers of the Courts. Casting aspersions
on the Presiding Officer of the Court below is most unwarranted
and are made with ulterior motives. The petitioner/wife cannot
seek transfer of the case according to her own whims and
fancies. If transfers are made as sought in this case, every
unsatisfied litigant would resort to the same practice. The
grounds on which the petitioner/wife is seeking transfer of the
subject case are untenable and ultimately prayed to dismiss the
Transfer Civil Miscellaneous Petition.
5. In view of the above submissions, the point that arises
for determination in this Transfer Civil Miscellaneous Petition is
as follows:
“Whether F.C.O.P.No.367 of 2018 pending on the
file of the Family Court, City Civil Court, Secunderabad,
be withdrawn and transferred to the Family Court, City
Civil Court, Hyderabad?”
POINT:-
6. The basic principle governing the grant of relief under
Section 24 of C.P.C. is that it should not be granted readily,
according to the whims and fancies of a litigant, or on the
ground that it casts doubt on the integrity, competence and
reputation of the concerned Judge. Unless and until a
6
sufficiently cogent ground is shown for transfer of a case from
one Court to another, transfer should be not allowed as a
matter of course. The High Court has every power to transfer
the matters pending in any Tribunal or Court subordinate to it
by exercising powers under Section 24 of CPC either suo motu
or at the request of either of the parties. When it is at the
request of either of the parties, the High Court may transfer the
matter only when there is sufficient material to show that the
party is not likely to get justice before the Presiding Officer of a
particular Court and it is essential in the interest of justice to
transfer such a matter to any other Court. But unless there are
specific instances of bias and unless the Presiding Officer has
personal interest in the subject matter of the case, he cannot
be branded as a biased Officer. This would demoralize the
officers in the eye of the public and it becomes very difficult for
such officers to work in a free and unbiased atmosphere. The
mere apprehension of the petitioners on imaginary grounds
cannot be accepted.
7. In Smt.Zohra Begum and others V. Additional
District Judge, Bareilly and others1, it has been held as
follows:
“If every such apprehension is to be accepted, in that
event, all cases in which a lawyer is involved, have to
be transferred outside the Courts or districts in which
he /she is practising. This apprehension that has been
expressed is a subjective one. It cannot be
substantiated objectively. Subjective apprehension is a1
2001 AIHC 1310
7particular state of mind of a particular person. Such
ground of subjective satisfaction cannot be accepted. It
is settled principle of law that if there is sufficiently
reasonable suspicion, however little it may be, in the
mind of the litigant, in such circumstances, the same
has to be taken into account and weighed with, as a
factor for the purpose of deciding an application under
Section 24 of C.P.C. But such suspicion must have
some nexus or some objectivity. If some one comes
and says that he has some suspicion and apprehension
in his mind, in that event, it will be too general a
proposition and will destroy the entire infrastructure of
the judicial system. Defeat of a case in the trial Court
cannot be a ground for suspicion. If such a proposition
is accepted, whenever a litigant losses a case, then he
will be asking for transfer of his appeal, and in that
event, all appeals are to be transferred simply on the
basis of subjective suspicion on the part of the
appellant. It will be too wide a proposition, which is
very difficult to accept. In view of the settled principle,
a suspicion should be accepted under the judicial norms
and principles to be a suspicion, which could be
reasonably harbored by a litigant. The Court has to find
out the situation and the circumstances whether the
suspicion so harbored, could be harbored reasonably by
a sensible man.
8. In Chetak Construction Limited Vs. Om Prakash and
others2, the Hon’ble Apex Court deprecated the practice of
making allegations against the Judges and observed as under:
“Indeed, no lawyer or litigant can be permitted to
browbeat the court or malign the presiding officer with
a view to get a favourable order. Judges shall not be
able to perform their duties freely and fairly if such
activities were permitted and in the result
administration of justice would become a casualty and2
(1998) 4 SCC 577
8rule of law would receive a setback. The Judges are
obliged to decide cases impartially and without any
fear or favour. Lawyers and litigants cannot be
allowed to “terrorize” or “intimidate” Judges with a
view to “secure” orders which they want. This is basic
and fundamental and no civilised system of
administration of justice can permit it……..”
9. In Bhajan Lal, Chief Minister, Haryana Vs. M/s.
Jindal Strips Limited and others3, the Hon’ble Supreme
Court of India observed that there may be some consternation
and apprehension in the mind of a party and undoubtedly, he
has a right to have fair trial, as guaranteed by the Constitution.
The apprehension of bias must be reasonable, i.e. which a
reasonable person can entertain. Even in that case, he has no
right to ask for a change of Bench, for the reason that such an
apprehension may be inadequate and he cannot be permitted
to have the Bench of his choice. The Court further held as
under:-
“Bias is the second limb of natural justice. Prima facie
no one should be a judge in what is to be regarded as
`sua causa’, whether or not he is named as a party.
The decision-maker should have no interest by way of
gain or detriment in the outcome of a proceeding.
Interest may take many forms. It may be direct, it
may be indirect, it may arise from a personal
relationship or from a relationship with the subject-
matter, from a close relationship or from a tenuous
one.”
10. Casting aspersions upon the character, ability or integrity
of the judge/judicial officer/authority undermines the dignity of
3
(1994) 6 SCC 19
9
the court/authority and tends to create distrust in the popular
mind and shakes the confidence of the people in the
courts/tribunals, which is of prime importance to the litigants in
the protection of their rights and liberties.
11. In the instant case, the petitioner, in paragraph No.13 of
the affidavit filed in support of this petition, averred as follows:
“I do not believe that my child has stated what the judge has
recorded. I have spoken to my son after reading the order of
the Hon’ble Court and he has denied telling the Judge what was
reflected in the order……the Court itself has made sweeping
remarks against me as if I have tutored my son……My son told
me that he was scared of disobeying the directions of the Judge
and he acted as per the directions of the Judge, he gave ‘high
five’ to his father and hugged him.” The petitioner further
averred that the Presiding Officer of the lower Court has
exhibited her bias attitude against the petitioner by making
some observations and thereby pre-judged the case.
12. As seen from the material on record, except making these
bald allegations, the petitioner/wife could not substantiate her
apprehension. Every person has his own way of interacting the
others. The Presiding Officer of the Court below, in discharge
of her judicial functions, interacted with the child and recorded
the findings. There is no need for the presiding officer of the
Court below to record adverse/favourable findings against
either of the parties. Even otherwise, the petitioner/wife did
not adduce even a piece of evidence to substantiate her
10
apprehension that she may not get justice in the Court where
the subject FCOP is pending. In the cases of this nature, a
party has to have a ‘reasonable’ apprehension in his/her mind
that he might not get justice in the Court in which the case is
pending. The petitioner has failed to substantiate her
apprehension, which seems to be more imaginary than real.
She has failed to mention a single instance where the learned
Judge has disclosed her biased mind or partial outlook against
the petitioner. The order which the learned Judge has passed or
the procedure which she has followed in dealing with the
petition for custody of the child do not suffer from any short
falling or suffer from little lack of power of expression and by
no means constitute any act or conduct, which is indicative of
bias or which may lead to a reasonable apprehension that the
petitioner may receive injustice at the hand of the Presiding
Officer. Mere suspicions and presumptions prevalent in the
mind of the petitioner/wife that she would not get fair trial are
baseless.
13. Be it noted that if there is a deliberate attempt to
scandalize a judicial Officer of subordinate Court, it is bound to
shake confidence of the litigating public in the system and has
to be tackled strictly. The damage is caused not only to the
reputation of the concerned Judge, but, also to the fair name of
judiciary. Veiled threats, abrasive behaviour and use of
disrespectful language are often designedly employed with a
view to tame a Judge into submission to secure a desired order.
11
The foundation of our system is based on the independence and
impartiality of the men having responsibility to impart justice
i.e. Judicial Officers. If their confidence, impartiality and
reputation is shaken, it is bound to affect the very
independence of judiciary. Any person, if allowed to make
disparaging and derogatory remarks against a Judicial Officer,
with impunity, is bound to result in breaking down the majesty
of justice.
14. Under these circumstances, this Court finds that the
apprehension in the mind of the petitioner/wife cannot be
termed as a reasonable apprehension and therefore, the ground
on which the subject F.C.O.P. is sought to be transferred
cannot be acceded to. The Transfer Civil Miscellaneous Petition
is devoid of merit and is liable to be dismissed.
In the result, the Transfer Civil Miscellaneous Petition is
dismissed.
Dr. Shameem Akther, J
23rd January, 2020.
Note:-
Mark LR Copy
(B/O)
Bvv
