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2014 DIGILAW 463 (KAR)

Madhavi v. Jai Prakash Narian

2014-04-11

ASHOK B.HINCHIGERI

body2014
ORDER 1. The petitioner has called into question the order, dated 26.3.2014 (Annexure-G) passed by the Court of the Principal Judge, Family Judge, Bangalore in Misc. Petition No. 31 of 2014 rejecting the petitioner’s petition for the transfer of G & WC No. 174 of 2012 from the Court of the III Additional Principal Judge, Family Court, Bangalore to any other Family Court in Bangalore. 2. Sri S. Sreevatsa, the learned Senior Counsel appearing for Smt. Prathima Anand for the petitioner submits that when G & WC No. 174 of 2012 was taken up for the cross-examination of the petitioner, the Presiding Officer of the III Additional Principal Judge, Family Court, Bangalore did not give a passover. The petitioner made the request for the passover, as her learned counsel was held up in some other court. He submits that the said Presiding Officer sent the court staff to secure the presence of the petitioner’s learned counsel. He submits that when the petitioner’s side made the application for recalling one of the witnesses examined on behalf of the respondent, the said Presiding Officer allowed the said I.A. but insisted that the further cross-examination of the witness takes place on the same day. He submits that some more witness/witnesses may have to be examined on behalf of the petitioner. He submits that the petitioner has genuine apprehension that the said Presiding Officer is biased. He submits that the petitioner is not happy with the treatment being meted out to her. 3. The learned Senior Counsel submits that if need be the petitioner’s side would file the affidavit of the learned advocate, who appears for her in the Family Court. 4. Sri Padmanabha V. Mahale, the learned Senior Counsel appearing for Sri P. Prasanna Kumar for the respondent submits that the petitioner keeps changing her advocates. He submits that every time there is a change in her advocate, the adjournments are being sought. He submits that she has changed as many as 34 advocates. He submits that by changing the advocates, the petitioner is only trying to prolong the matter. He takes serious exception to the delaying tactics being indulged in by the petitioner. 5. The learned Senior Counsel submits that there is no substance in the allegation of bias. He submits that the order sheet maintained by the Family Court shows that enough accommodations were indeed given to the petitioner’s side. He takes serious exception to the delaying tactics being indulged in by the petitioner. 5. The learned Senior Counsel submits that there is no substance in the allegation of bias. He submits that the order sheet maintained by the Family Court shows that enough accommodations were indeed given to the petitioner’s side. No prejudice whatsoever is being caused to the petitioner by the dismissal of her petition for the transfer of her G & WC No. 174 of 2012. If such transfer petitions are allowed, it would only send wrong signals about the judiciary to the society. 6. The submissions of the learned counsel have received my thoughtful consideration. To examine the grievance of the petitioner, I may usefully refer to the provisions contained in Section 13 of the Family Courts Act, 1984. They are extracted herein-below: “13. Right to legal representation–Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.” 7. The perusal of the afore extracted provision shows that in the Family Court proceedings, the legal expert may appear, but only as an amicus curiae and only if the Family Court permits. The legislature, in exercise of its wisdom, has enacted these provisions considering the most delicate part of human relation – the relationship between the husband and wife. 8. In the instant case, it is not in dispute that there is a change in the counsel of the petitioner 34 times. The order sheet shows that the adjournments were indeed granted on some occasions. 9. The consideration of the petition for the custody of the minor cannot be delayed. Such petitions are to be considered with some sense of precedence that they deserve. A minor, on attaining the age of 18 years, become a major and the petition for the custody would only be rendered infructuous. Therefore, the Family Court cannot be held to be at fault for insisting that the parties must go on with the matter on day today basis. 10. It is trite that the apprehension of bias on the part of a litigant should be bona-fide and reasonable. Therefore, the Family Court cannot be held to be at fault for insisting that the parties must go on with the matter on day today basis. 10. It is trite that the apprehension of bias on the part of a litigant should be bona-fide and reasonable. Unfounded apprehension of the litigant cannot become the basis for seeking the transfer of a case. 11. Only in its anxiety to dispose of G & WC No. 174 of 2012, the Presiding Officer in question may have sent one of her court officials for securing the presence of the petitioner’s advocate. In my considered view, it only amounts to the anxiety of the Presiding Officer to dispose of certain category of cases speedily; it does not amount to the bias or prejudice in any way. Be it as it may, the Presiding Officers of all the Courts, more particularly Family Courts, are required to treat the litigants properly. 12. It is also my anxiety that no party or litigant should form the impression that he is not given adequate opportunity for putting his case across or that his case has not been considered fairly. I am therefore, while upholding the impugned order, rejecting the transfer petition, dispose of this petition with the following order: (i) The order posting G & WC No. 174 of 2012 for judgment by the III Additional Principal Judge, Family Court, Bangalore is to be recalled. (ii) The case is to be reopened for the further cross-examination of PW2 and further evidence of the petitioner (respondent in G & WC No. 174 of 2012). (iii) PW2 shall be present on 16.4.2014 for further cross-examination. (iv) The petitioner (respondent in G & WC No. 174 of 2012) shall keep her further witness, if any, present on 21.4.2014. (v) If the further witnesses is/are examined on behalf of the petitioner on 21.4.2014, he/ she/they shall be cross-examined either on the same day or on the next day (22.4.2014). (vi) On the conclusion of evidence, the matter shall be posted for arguments. On affording the opportunities of hearing to both the sides, the said learned Presiding Officer shall post the matter for judgment. (vii) Both the sides are directed to cooperate with the learned Presiding Officer of III Additional Principal Judge, Family Court, Bangalore in the speedy disposal of the matter. 13. No order as to costs.