G. Lakshmi v. S. Murali — 1993 DIGILAW 907 (MAD)

Judgment :- The petition is under Secs.24 and 151 of the Code of Civil Procedure praying for transfer of O.P.No.819 of 1991 from the file of the Principal Family Court at Madras to any other Family Court near Madras City. 2. Short facts are: the respondent has filed O.P.No.819 of 1991 against the petitioner for divorce under Secs.l3(1)(a) and 13(1)(iii) of the Hindu Marriage Act, 1955. The petitioner had resisted it. The trial had commenced and examination of the witnesses was over. At that stage, this petition is filed for transfer. 3. The allegations in the affidavit in support of the application are briefly as follows: Certain things have taken place during the course of the trial. On occasions, the learned Judge prompted the husband/ respondent to tell that the petitioner is suffering from ‘Mental disorder", the learned Judge had threatened her that he would spoil her career and forced her to settle the issue. The learned judge denied her the opportunity to explain the facts during the course of cross-examination by her husband. On 12. 1993, when she requested time to submit her ‘written arguments’, the learned Judge threatened that ‘she stands to lose the case if she does not submit the same by 112. 1993’ and posted the case on 112. 1993. From the above, the petitioner is feeling that learned Judge has a bias in his view and as such, she is apprehensive that she may be prejudiced on account of such bias. Hence, the petition. .4. The respondent has filed a counter affidavit. The allegations in it are as follows: The motive for the application is to deprive him of the benefit of the decision by the learned trial judge who has the opportunity of observing the parties in the witness box, while adducing evidence. The trial opened on 6. 1993. He has recorded evidence in about 50 pages and nearly 50 documents have been marked. It is false to say that the petitioner was not allowed to question or allowed to answer. The evidence was closed on 12. 1993. The matter was posted for arguments to 12. 1993. On 12. 1993, the petitioner was absent in court. The learned Judge adjourned the matter to 112. 1993. The petitioner’s counsel wanted time till 112. 1993. The petitioner cross-examined him at length. The evidence was closed on 12. 1993. The matter was posted for arguments to 12. 1993. On 12. 1993, the petitioner was absent in court. The learned Judge adjourned the matter to 112. 1993. The petitioner’s counsel wanted time till 112. 1993. The petitioner cross-examined him at length. It is false to say that the learned Judge prompted him to say that the petitioner was suffering from ‘mental disorder’. The learned Judge never threatened the petitioner that by his judgment, her career could be spoiled. The allegation that the Judge did not give time for arguments is false. The petitioner wants to take advantage of the retirement of the Judge so as to put him under disadvantage of the benefit of the learned judge who had observed the witnesses in the box and understood the progress of the case. The petitioner was not denied the opportunity to explain any of the matter at any time. The learned Judge closed the evidence on 12. 1993 and posted only for written arguments and nothing more is to be done by any of the parties. No ground has been made out for transfer of the case. There is no other Family Court in the State of Tamil Nadu and the matter could not be transferred at this stage to any other court. He is ready with his written arguments and he will be put to great hardship, if the proceedings are transferred at this stage. Hence, dismissal of the petition is prayed for. 5. The petitioner has filed a reply affidavit. The allegations in it are briefly as follows: She was constrained to file the petition for transfer only after the Presiding Officer of the Family Court threatened heron 12. 1993. The successor Judge of the very same Family Court can decide the case, as the present learned Judge, on the basis of the evidence already available on record. The respondent is in a hurry to fix up the second marriage and he is anxious to get divorce at the earliest. Even on 112. 1993, when a memo was filed regarding the stay of the proceedings, the memo was thrown on her face after her insisting on the Presiding Officer to record the same. The anxiety of the respondent to have the matter disposed of before the present learned Judge of the Family Court before he retires, itself fully supports her case. 6. 1993, when a memo was filed regarding the stay of the proceedings, the memo was thrown on her face after her insisting on the Presiding Officer to record the same. The anxiety of the respondent to have the matter disposed of before the present learned Judge of the Family Court before he retires, itself fully supports her case. 6. The respondent has filed a re-joinder: The allegations in it are briefly as follows: The allegation that the learned Judge threatened the petitioner on 12. 1993 is absolutely false and when the case was called, the petitioner was not present and her counsel alone was present and she prayed for extension of time and the learned Judge adjourned the matter to 112. 1993. The allegation is made deliberately to protract the proceedings. Scandalous allegations have been made against the learned Judge to achieve their own end. .7. Regarding the allegations made against him, remarks were called for from the learned Judge of the Principal Family Court and he had submitted his remarks. His remarks are briefly as follows: On 10.121993, both parties agreed to submit the ‘written arguments’. The respondent Lakshmi did not turn upon 12. 1993. The advocate assisting Lakshmi wanted further time to submit the written arguments. It was posted to 112. 1993. The petitioner Murali was ready on 12. 1993 for submission of written arguments. The matter was posted to 112. 1993 as the respondent had not appeared on 12. 1993 to receive copy of the written arguments. Full evidence has been recorded running over several pages. Due to heavy work of Family Court, special sittings for contested cases were held. The learned Principal Judge, Family Court, Madras is retiring on 312. 1993 and from 1. 1994 there would be no Judge for that court. After 1. 94 this case is not likely to be taken up for months together and it may take about more than one year. Any individual would try to take advantage of a vacuum and Lakshmi tries to take fully advantage of the vacuum. It is totally false to say that he prompted her husband on occasions. On 12. 1993, Lakshmi was absent. So, there is no occasion for her to request time to submit written arguments. The allegation that she was threatened on 12. 1993 is totally false. It is totally false to say that he prompted her husband on occasions. On 12. 1993, Lakshmi was absent. So, there is no occasion for her to request time to submit written arguments. The allegation that she was threatened on 12. 1993 is totally false. The allegation that the memo was thrown out on the face of the party is made only to prejudice the mind of the Judge of the High Court, if possible. Unfounded and scandalous allegations have been made against the Judge of the Principal Family Court. 8. Mrs.Radha Gopplan, learned counsel appearing for the petitioner, would submit that in the affidavit filed by the petitioner, the instances which led her to believe that there was bias on the part of the learned Judges of the Family Court has been set out and that in the face of such apprehension, transfer may be ordered or atleast further proceedings may be stayed for a fortnight and the successor Judge may dispose of the case. 9. Per contra, Mr.S.Desigan, learned counsel appearing for the respondent, would submit that the present trial Judge had recorded the evidence and had noted the demeanour of witnesses and he is in an advantageous position to assess the evidence recorded by him and that instances stated in the affidavit are false and no grounds are made out for transfer. 10. I have carefully considered the submissions made by rival counsels. 11. In Pushpa Devi Saraf v. Jai Narain Parasram-puris, A.I.R. 1992 S.C. 1133, the Apex Court had occasion to consider a transfer petition. The Apex Court had held that when a transfer petition is filed making allegations, the report if and when called for, should normally be confined to the allegations made about the impartiality or fairness of the Judge and not with respect to the correctness or otherwise of the orders passed by him. In that case in his report, the presiding officer not only denied the imputations made against him but also explained and justified the order passed by him. The apex court had opined that a Presiding Officer of a court should not be put to give an explanation, barring exceptional circumstances. On the facts of that case, the Apex Court was of opinion that the allegations in the transfer petition are not sufficient and do not warrant an order of transfer. The apex court had opined that a Presiding Officer of a court should not be put to give an explanation, barring exceptional circumstances. On the facts of that case, the Apex Court was of opinion that the allegations in the transfer petition are not sufficient and do not warrant an order of transfer. After holding so, the learned Judges of the apex court have held as follows: “We however, feel that the learned Presiding Officer has been unduly affected by the allegations levelled against him, as would be evident from his report. In this view of the matter, we are inclined to think that in the interest of the learned Presiding Officer himself, the suit may be sent to another Court. We, accordingly, request the learned District Judge, Kanpur to transfer the said suit (Suit No.537 of 1984 on the file of Vllth Additional District Judge, as he may designate in this behalf”. 12. In Payal A.K.Jindal v. Ashok Kumar Jindal, A.I.R. 1993 S.C.W. 3570, the wife sought transfer of the case in a suit for divorce. Her applications were dismissed by the Supreme Court. The Family Court, however, took seriously the grievances made by the wife before the Supreme Court and adversely commented about the same. In such circumstances, the Apex Court had directed transfer of the case. In paragraph 18, the Apex Court has observed as follows: “The appellant had asked for transfer of her case from the principal Judge, Family Court, Pune, to some other Court and this Court gave liberty to the appellant to move the High Court for the said purpose we are satisfied that the reasons given by the appellant for such transfer and the apprehensions entertained by her are wholly unjustified. We are, however, of the view that the Principal Judge, Family Court, Pune, has taken the grievances made by the appellant before this Court rather seriously and has commented adversely about the same, with a view to do complete justice between the parties. We direct that this case be transferred from the file of Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay”. 13. In this case, the remarks of the learned Principal Judge, Family Court were called for on the allegations made against him in the affidavit filed in support of the application and in the reply affidavit The learned Principal Judge, Family Court has submitted his remarks. 13. In this case, the remarks of the learned Principal Judge, Family Court were called for on the allegations made against him in the affidavit filed in support of the application and in the reply affidavit The learned Principal Judge, Family Court has submitted his remarks. The remarks alone run to nearly 15 pages. He has given the caption as follows: “Background in which transfer petition has been filed in High Court after 10. 12.93”. After giving in detail the respective contentions of the parties and the functioning of the Family Court and the special sittings held by the court, the learned Judge has stated as follows: “As matters stand today, from 1. 1994, there will be no Judge for the Principal Family Court, Madras. A vacuum is being created...” So, after 1. 1994 this case is not likely to be taken up for months together and it may take about more than one year. Thus a vacuum is created. The learned Judge also in his remarks stated as follows: “Respondent/ Lakshmi having come to know of this administrative features after 1. 1994 evidently wants to take full advantages of the same, in an effort to drag on and prolong the contested case. She has not filed the case and therefore she can only drag on and protract the case. Any individual would try to take advantage of a vacuum and Lakshmi tries to take full advantage of the vacuum”. In paragraph 4, the learned Judge had taken strong exception to the description of Principal Judge of Family Court in the affidavit and the reply by Lakshmi as the Presiding Officer in several places. In that para, he has stated as follows: “When the law passed by Parliament and when Parliament has described the Judge of Principal Family Court as Principal Judge, to describe the Judge as Presiding Officer by a party is to denigrate and to degrade the post. The party’s attempt to equate the Principal Judge of Principal Family Court as Presiding Officer is an attempt to treat the judiciary as executive. It exhibits the intention of the party to disobey law and not to comply with the provision of law. The party’s attempt to equate the Principal Judge of Principal Family Court as Presiding Officer is an attempt to treat the judiciary as executive. It exhibits the intention of the party to disobey law and not to comply with the provision of law. The party’s determination not to describe the Judge in the manner in which the law passed by Parliament as described, shows that amount of respect and regard the party has for the post of the Principal Judge of Family Court”. In paragraph, 6, the learned Judge had referred the allegations made in paragraph 3 of the affidavit of the petitioner which relates to the instances of bias against the learned Judge, In it, the learned Judge has stated as follows: “Such baseless allegations and on the face of it untenable allegations are made just to take full advantage of the vacuum that is being created from 1. 1994 in the Principal Family Court, Madras. Otherwise, such a baseless allegation could not have been made”. 14.The learned Judge had underlined this portion with green ink. Then, he had captioned paragraph 7 as follows: “Baseless allegation No.2 in para 3 of the affidavit”. In it, he has stated as follows: “The pity is a party has chosen to attack me with all sorts of baseless allegations and that shows that I am the most weakest individual possible. If I have the strength to threaten to anyone no party would choose to make frivolous, baseless and scandalous allegations against me”. When the learned Judge has stated as follows: “Such baseless allegation is made to take advantage of the Vacuum after 1. 1994 in the Principal Family Court”. This portion is written in blue ink and has been underlined by him. He had captioned the next paragraph as follows: “Baseless allegations in paragraph 3 of the affidavit”. At the end of the paragraph, the learned Judge has stated as follows: “This kind of baseless allegation is made just to take full advantage of the vacuum that is being created from 1. 1994”. The learned Judge has underlined the portion in green ink. Then, he had captioned paragraph 9 as follows: “Baseless allegation No.4 in paragraph 3 of the affidavit”. Then at the end of the paragraph, he has stated as follows: “Such a baseless allegation is made just to take advantage of the Vacuum that would be created from 1. 1994”. The learned Judge has underlined the portion in green ink. Then, he had captioned paragraph 9 as follows: “Baseless allegation No.4 in paragraph 3 of the affidavit”. Then at the end of the paragraph, he has stated as follows: “Such a baseless allegation is made just to take advantage of the Vacuum that would be created from 1. 1994.” The learned Judge had underlined this portion. 15. From the remarks of the learned Judge, it is obvious that the learned Judge had taken the grievance made by the petitioner before this Court, rather seriously and had commented adversely about the same. He has been affected by the alle-i gations levelled against him and it is evident from his report. In view of the above, I am clear that the facts of this case fall squarely within the ratio of the Apex Court rulings which I have mentioned supra and hence, this case is to be transferred. 16. Regarding the allegations made in paragraph 3 of the affidavit filed by the petitioner, those three instances have been stoutly denied in the counter-affidavit filed by the respondent and has also been denied by the learned Judge of the Principal Court, in his remarks. 17. In Swaminathan, In re., (1944)1 M.L.J. 396: A.I.R. 1944 Mad. 450:57 L. W. 318, it was held that when a question of facts arises as to what happened in the lower court, the statement of the Presiding Judge is conclusive. With respect, I am in total agreement with the view of Justice Byers expressed in this case. The remarks of the learned Judge would clearly go to show that the instances cited in paragraph 3 of the affidavit filed by the petitioner are all not true. I am satisfied that the reasons given by the petitioner for such transfer and the apprehensions entertained by her are not justified. 18. Mr.S.Desigan, learned counsel would submit that it would be always better that the Judge who conducts the trial and who had occasion to see the witnesses in the witness box and watched their demeanour renders the judgment in the case because he can have a better appreciation of the evidence recorded. In this regard, he relied upon the decisions, in Bombay Cotton Manufacturing Company v. R.S.Motilal Shivlal,A.I.R. 1915 P.C. 1. In P.Sankarareddi v. P.Mahalakshmi, A.I.R. 1922 P.C. 315. In this regard, he relied upon the decisions, in Bombay Cotton Manufacturing Company v. R.S.Motilal Shivlal,A.I.R. 1915 P.C. 1. In P.Sankarareddi v. P.Mahalakshmi, A.I.R. 1922 P.C. 315. In Sitalakshmi v. Venkatasubramaniam, A.I.R. 1930 P.C. 1170 and Nandkishwar Bux Roy v. Gopal Bux Rai, A.I.R. 1940 P.C. 93. 19. Mr.Desigan, learned counsel would further submit that the scheme of Hindu Marriage Act requires that the trial should be conducted expeditiously and judgment rendered early and in this regard, he relied upon the preamble to the Hindu Marriage Act as well as Sec.21-B of the said Act. Scc.21-B(l) of the Act reads as follows: “The trial of a petition under this Act shall as far as is practicable consistently with the interests of justice in respect of the trial be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded, [emphasis supplied]” It is true that it would be better that the Judge who records the evidence renders the Judgment and it is also true that an enquiry under the Hindu Marriage Act should be conducted expeditiously and disposed of early. But as has been indicated in Sec.21-B of the Act, the speedy trial must be in consonance with the practical circumstances and in consonance with the interest of justice. Regarding the proposition that it would be better that the Judge who tries the case renders judgment also, it is circumscribed by other circumstances which have a vital bearing on this aspect of the case. Every case is to be viewed in the context of the peculiar facts and circumstances available in that case. In the instant case, for the reasons which I have indicated a t the outset, unfortunately a transfer is warranted on the facts of the case. 20. Mr.S.Desigan, learned counsel would rely upon the decision in In re. Tanguturu Sriramulu, A.I.R. 1916 Mad. 763(1), in which a Division Bench of this Court had held that an expression of opinion by a Judge as to the character of the plaintiff or of his paper, is no ground for transfer, when that expression of opinion was elicited from that conduct of the plaintiff himself. He would also rely upon B.M.T.Mathews v. P.M.Athanasius, A.I.R. 1979S.C. 1909. In C. V.Xavierv.J. and J. De Chane, A.I.R. 1972 Ker. He would also rely upon B.M.T.Mathews v. P.M.Athanasius, A.I.R. 1979S.C. 1909. In C. V.Xavierv.J. and J. De Chane, A.I.R. 1972 Ker. 263, it was held that an attempt to take the case to another Bench when there was an apprehension that the Judges were expressing opinions seemingly adverse is nothing but to divert the course of Justice which should not be countenanced and should even be put down. 21. The above principles arc well known and they are to be applied in cases which call for the application of these principles. For the reasons which I have stated in the beginning of this order, this O.P.No.S19 of 1991 will have to be transferred. But inasmuch as the present learned Judge is retiring in a week, there will be no necessity to transfer it to another court and instead stay the case for a period often days from today. In case, no successor Judge is appointed early, parties are at liberty to move for transfer the case to some other competent Judge. 22. In the result, the petition is ordered as follows: All further proceedings in O.P.No.S19 of 1991 on the file of the Principal Family Court, Madras shall stand stayed for a period of ten days. If successor Judge is not appointed early, the parties are at liberty to move this Court for appropriate directions.