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Ankit Upadhyay vs The District Judge, Family Court & … on 23 March, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. Civil Transfer Appl. No. 104 / 2017
Ankit Upadhyay S/o Shri Kailash Chandra Upadhyay, Aged About
29 Years, By Caste Upadhyay, Resident Of- Behind Jat Hostel,
Senti, District- Chittorgarh.

—-Petitioner
Versus

1. The District Judge, Family Court, Bhilwara.

2. Smt. Pritipriya W/o Shri Ankit Upadhyay, D/o Smt. Sharda
Sharma, Resident Of- C/o Shri Gopal Sharma, H- 42, R.K. Colony,
Behind Liqour Goodown, Bhilwara (Raj.)

—-Respondents
__
For Petitioner(s) : Mr S.L. Jain, Mr Abhinav Jain
For Respondent(s) : Mr B.S. Charan
__
HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment
Date of Pronouncement: (26) /10/2017

This Transfer Application under sec.24 CPC has been filed for

transfer of Civil Case No.28/2015 {Smt Pritipriya v. Ankit

Upadhyaya} pending in the court of Family Court, Bhilwara to any

other court.

Briefly stated, marriage between the parties was solemnized

on 19.11.2013 as per Hindu rites and customs. The non-petitioner

wife preferred a petition under sec.13 of the Hindu Marriage Act

on 21.02.2015 on the ground of cruelty by petitioner towards the

non-petitioner. After service of summons, the petitioner appeared

and filed reply to the petition. The non-petitioner filed an

application under sec.24 of the Act for grant of interim
(2 of 8)
[CTA-104/2017]

maintenance during pendency of petition under sec.13 of the Act.

A reply to said application was submitted by the petitioner and

controverted the averments made in the application.

During pendency of the application under sec.24 of the Act,

the non-petitioner moved an application on 14.12.2015 praying

therein that record of statement of Bank account of petitioner be

called from ICICI Bank, Nimbaheda and the service record of the

petitioner be also called from the company where he is in service

i.e. J.K. Cement. A reply to said application was filed by the

petitioner, stating that the application is not maintainable and

therefore, the same be dismissed.

The matter was posted for arguments on the application

under sec.24 of the Act on 01.03.2017. On said date, arguments

on the application were heard, order was reserved and next date

given in the matter for pronouncement of the order was

02.03.2017. On said date, petitioner and so also his amicus curiae

were not present but the non-petitioner filed an application, no

copy whereof was furnished to petitioner or his amicus curiae.

However, on the very day i.e. 02.03.2017 decided said application

and passed directions in this regard.

When petitioner came to know of aforesaid order, he

preferred a writ petition being SBCWP No.3645/2017, however,

the same was withdrawn with a view to challenge the order

impugned by preferring a review or order recalling application.

The petitioner thereafter preferred a recalling application before

the trial court but the trial court dismissed the same vide order

dated 19.04.2017.

(3 of 8)
[CTA-104/2017]

It was also contended that the non-petitioner had also

instituted a petition under sec.125 CrPC before same court, which

is pending adjudication and the same officer, vide its order dated

05.01.2017 passed similar directions. The petitioner challenged

said order before Hon’ble High Court, wherein the High Court

pleased to stay further proceedings in said petition.

The order passed by the non-petitioner No.1 dated

19.04.2017 was challenged before Hon’ble High Court by filing

writ petition being SBCWP No.4845/2017, wherein Hon’ble High

Court vide order dated 15.05.2017 observed as follows: “Of

course, the manner in which the application is dealt with by the

Family Court, can not be appreciated”. This observation of the

High Court is sufficient example of the manner of prejudicial trial

held to the detriment of petitioner.

It was also contended that the petitioner has also preferred a

petition under sec.13 of the Hindu Marriage Act against non-

petitioner No.2, however, the non-petitioner No.1 has directed the

non-petitioner No.2 not to file any reply in that petition. Thus, the

manner of proceeding being carried out by the non-petitioner No.1

are alien to system of law prevailing in India.

It was also contended that in view of apparent undue favour

shown to one party and bias towards him, the petitioner has no

hope of justice from present Presiding Officer. On the basis of

averments mentioned above, transfer of the petition is sought.

Notices were issued to respondents and report of Judge,

Family Court, Bhilwara was also called. The respondents are

represented through counsel.

(4 of 8)
[CTA-104/2017]

Heard learned counsel for the parties.

In the present case, the respondent No.1 preferred an

application under sec.13 of the Act of 1955 seeking divorce on the

ground of cruelty. During pendency of the petition, the respondent

preferred an application under Section 24 of the Act of 1955,

claiming maintenance pendente lite. The application is being

contested by the petitioner by filing a reply thereto. On 1.3.17,

the arguments of the parties on the application were heard and

the matter was posted for decision on 2.3.17. On 2.3.17, the

respondent preferred an application for summoning the pay

certificate of the petitioner from his employer M/s. J.K.Cement,

Nimbahera. After due consideration, the court below while

directing the parties to furnish the information regarding their

employment, salary, statements of their bank account as also the

income tax returns of the preceding three years, further directed

the petitioner’s employer M/s. J.K. Cement Ltd., Nimbahera to

produce his salary certificate along with PAN .

The petitioner preferred an application for recalling the order

dated 2.3.17 passed by the court below stating that the effective

order passed by the court as aforesaid in his absence is not

unjustified. It was contended that the application under Section 24

of the Act of 1955 must be decided on the basis of the documents

produced on record by the parties and thus, ignoring this aspect of

the matter, the court has erred in summoning the documents from

petitioner’s employer. After due consideration, the application was

rejected by the court below observing that the court is well within

its jurisdiction in summoning the documents for just decision of
(5 of 8)
[CTA-104/2017]

the application preferred under Section 24 of the Act of 1955. The

court also observed that it was responsibility of the petitioner

herein to produce necessary documents on record regarding his

financial status and thus, he cannot be said to be aggrieved by the

order passed to ascertain the correct status of his financial

position and accordingly, the application was rejected.

It was contended that the copy of the application preferred

on behalf of the respondent was not supplied to the petitioner and

thus, the order passed by the court below in absence of the

petitioner, is absolutely unjustified. It was also argued that the

respondent had already filed an application for summoning the

documents, which was contested by the petitioner by filing a reply

thereto, however, instead of deciding said application, the order

passed by the court below on the fresh application filed by the

respondent is gross abuse of the process of the law. It was further

argued that the court below was not justified in directing to issue

Tehreer to S.P., Chittorgarh for collecting information sought by

the court and to produce the same on record.

On perusal of the order-sheets submitted before this Court,

it is relevant to mention that on 02.03.2017, the petitioner or his

next friend Kailsh Upadhyay were not present but petitioner’s

other next friend Shivlal Sharma was present. Therefore,

contention of the petitioner that the order was passed ex parte, is

factually incorrect. The petitioner can not be permitted to withhold

information regarding his income and therefore, taking into

consideration the facts circumstances of the case, the direction

issued by the Family Court, Bhilwara for summoning requisite
(6 of 8)
[CTA-104/2017]

information including Salary certificate of petitioner from his

employer can not be said to be without jurisdiction. The Family

Court is empowered to requisition information, which in its opinion

is necessary to assist the court to deal with the matter in hand

effectually. The Family Court has passed identical order in

proceedings under sec.125 CrPC, the legality whereof was

challenged by the petitioner by way of SBCWP No.3645/2017,

which was dismissed by this Court vide order dated 04.04.2017 as

withdrawn. It is not case of the petitioner that Shivlal Sharma,

who was present before the court on 02.03.2017, was not

authorized to appear on his behalf. Thus, it can not be said that

the order passed by the court below was ex parte.

Even without there being an application, a Family Court is

empowered to receive as evidence any report, statement,

documents, information or matter that may, in its opinion assist

the court to deal with the matter effectually. By virtue of

provisions of sub-section (3) of sec.9 of the Act, the Family Court

is empowered to lay down its own procedure, with a view to arrive

at settlement in respect of the subject matter of the suit or

proceedings or a truth of the facts alleged by one party and

denied by the other and thus, the order impugned passed by the

Family Court in summoning the information requisite for just

decision of the application under Section 24 of the Act of 1955,

cannot be said to be without jurisdiction.

Learned Judge, Family Court, Bhilwara (respondent No.1)

has submitted his report along with relevant copies of order-

sheets. A perusal of order-sheet Annx.2 specifically makes it clear
(7 of 8)
[CTA-104/2017]

that on 02.03.2017, petitioner Ankit Upadhyaya and his next

friend Kailash Upadhyaya were not present but his another next

friend Mr Shivlal Sharma was present. This means that the

petitioner has made wrong statement in his pleadings. Along with

the report submitted by respondent No.1, an order sheet dated

05.06.2017 (Annx.5) is also enclosed, wherein it is mentioned:

^^foi{kh vafdr mik/;k; us Hkh fdlh izdkj dh dksbZ Hkj.k iks”k.k dh jkf”k vkt fnu
rd izkFkhZ;k dks vnk ugha dh gSA ek foyEc djuk ,dek foi{kh dk mís”; gSA
foi{kh ds oknfe Jh dSyk”k mik/;k; tks is”ks ls vf/koDrk gS ,oa foi{kh ds firk Hkh
gS] bl izdj.k dks yxkrkj blh vk/kkj ij foyfEcr dj jgs gSA mudh ea”kk gS fd
ihBklhu vf/kdkjh ;sudsu izdkjs.k nokc esa vkdj bl izdj.k dk QSlyk ugha djsA
vukxZy vkjksi ihBklhu vf/kdkjh ij foi{kh }kjk fofHkUu izdkj ds izkFkZuk iksa ds
ek/;e ls yxk;s tkrs jgs gSA yxkrkj U;k;ky; esa rukoiw.kZ ekgkSy iSnk djrs gS]
;fn og Lo;a foi{kh ds firk gS vkSj is”ks ls vf/koDrk gS rks bldk ;g vFkZ ugha gS
fd og viuh euethZ ls U;k;ky; dks dk;Z djus gsrq foo”k djsA**

From above observation, it is clear that the advocate Mr

Kailash Upadhyaya, petitioner’s next friend, is father of petitioner

Ankit Upadhyaya and with ulterior motives and to create pressure

on mind of the Presiding Officer, he has made these allegations.

The conduct of the petitioner can not be said to be appropriate, for

a party who approaches court for an equitable remedy.

The petitioner has also questioned legality of order dated

02.03.2017 as well as order passed on application by petitioner for

recalling order dated 02.03.2017, by way of separate writ petition

being SBCWP No.4845/2017, which has also been dismissed by

this Court vide order dated 15.05.2017.

So far as allegation of bias is concerned, in P.D. Dinakaran

v. Hon’ble Judges Inquiry Committee {(2011) 8 SCC 380:

AIR 2011 SC 3711}, Hon’ble Apex Court held that to disqualify a

person as a Judge, the test of real likelihood of bias i.e. real
(8 of 8)
[CTA-104/2017]

danger is to be applied, considering whether a fair minded and

informed person, apprised of all the facts, would have a serious

apprehension of bias. In other words, the courts should give effect

to the maxim that “justice must not only be done but be seen to

be done”, by examining not actual bias but real possibility of bias,

based on facts and material.

In the present case, there does not appear any material

which supports actual bias or any possibility of bias, on the facts

and material. The Transfer Application has no merit and deserves

to be dismissed and the same is, accordingly, dismissed.

(DR. VIRENDRA KUMAR MATHUR)J.

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