SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Smt. Pooja Tipirneni vs Sri Tipirneni Harsha on 23 January, 2020

* 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 a

1
2001 AIHC 1310
7

particular 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 and

2
(1998) 4 SCC 577
8

rule 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

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation