Research › Search › Judgment

Chhattisgarh High Court · body

2024 DIGILAW 76 (CHH)

Sukhnath Ahirwar S/o Amritlal Ahirwar v. Varsha @ Rma Ahirwar W/o Sukhnath Ahirwar

2024-01-23

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

body2024
JUDGMENT : GOUTAM BHADURI, J. 1. This appeal is under Section 19 (1) of the Family Court Act, filed by the husband seeking a transfer of proceedings which is pending before Principal Judge Family Court, Raipur. 2. The facts of this case are that the appellant and respondent got married on 16.05.2010. After sometime of marriage they cannot go along which led to various disputes between the parties. Consequently, an application was filed by the wife before the Principal Judge, Family Court Raipur, claiming maintenance under Section 125 of the Criminal Procedure Code. According to the wife-respondent and the order of the Court, the husband-appellant did not appear despite notice. The service of the notice, however, has been vehemently disputed by the husband-appellant to say that no notice was served and the place of posting was elsewhere from the issuance of place of notice. Be that as it may, the Family Court passed an ex-parte order on 19.01.2023, whereby, an amount of Rs. 40,000/- was ordered to be paid per month as interim maintenance. 3. Being aggrieved by the said order, the husband, thereafter filed an application to set aside such ex-parte order before the Principal Judge Family Court Raipur. During the pendency of the said application, the execution was drawn. Consequently, a criminal revision bearing No. 389 of 2023 was filed before the High Court. The High Court by its order dated 08.05.2023 directed the Trial Court to decide the application of the husband, which was for setting aside of the ex-parte order as early as possible. 4. Thereafter, on 27.05.2023 (Annexure-A/7), the ex-parte order was set aside. According to the appellant-husband, he appeared on 24.06.2023 and the transaction and the business of the Court took place on 24.06.2023. He separately filed an application for transfer of the case on 26.06.2023 before the Principal Judge, Family Court Raipur. The transfer was sought in respect of proceeding No. 278 of 2023, which was under Section 125 of Cr.P.C. and a separate proceeding for transfer of petition for restitution of conjugal rights to other Family Court than the Principal Family Judge. 5. The husband had also filed a petition for divorce which was pending before Family Court, Mungeli and by order of this Court dated 26.07.2023 in TPC No. 163 of 2022, the said case was also transferred to the Court of Principal Judge, Family Court Raipur. 5. The husband had also filed a petition for divorce which was pending before Family Court, Mungeli and by order of this Court dated 26.07.2023 in TPC No. 163 of 2022, the said case was also transferred to the Court of Principal Judge, Family Court Raipur. The application for transfer of two cases to other Principal Judge Family Court was filed on 26.06.2023. The Family Judge by its order dated 04.07.2023 rejected the application for transfer of cases pending between the parties to the other Family Court at Raipur. Being aggrieved by such order, this appeal by the husband. 6. Learned counsel for the appellant would submit that by application of Section 24 of C.P.C. the Principal Judge Family Court, could have transferred the case to other Additional Family Court as it would not have caused any prejudice. He would submit that the transaction and business of the Court and even the Principal Judge, since appeared to be prejudiced for the reasons that the appellant on the earlier occasion approached the High Court and the Trial Court acted in prejudicial manner. He would submit that undesirable comment were made against appellant taking into sweep the High Court. Therefore, under these circumstances, there is a strong apprehension that prejudice would be caused to the appellant-husband if the case is adjudicated by the Principal Judge, Family Court, Raipur (Hemant Saraf). 7. He refers to a letter filed as an additional document, wherein, the letter was addressed by the Principal Judge Family Court to the Chief Secretary seeking some clarification and was directed to be served through its department. Learned counsel for the appellant would further submit that after the stay order was passed by this Court on 02.11.2023, the letter was addressed by the Principal Judge, which prima facie would reflect overwriting in the dates were made and the services was affected to the Chief Secretary, in order to serve the letter to the appellant, who is also working in the State Government. Therefore, the circumstance would show that the Principal Judge Family Court took a personal interest in the case which is uncalled for and in order to repose faith of litigant, the case may be transferred to other competent jurisdiction of Family Court. Therefore, the circumstance would show that the Principal Judge Family Court took a personal interest in the case which is uncalled for and in order to repose faith of litigant, the case may be transferred to other competent jurisdiction of Family Court. It is prayed in facts of case that the proceedings of case i.e. (i) under Section 125 of Cr.P.C. (ii) restitution of conjugal rights and (iii) the divorce petition which are pending before the Principal Judge Family Court may be transferred to other Additional Principal Judge Family Court, Raipur. 8. Per contra, learned counsel for the respondent would submit that Section 24 of the Code of Civil Procedure, normally gives the power to the Court to transfer a case to another Court which can only be exercised in respect of the Court subordinate to it. The Additional Family Court is not subordinate to Principal Judge Family Court, therefore, in all circumstances, the application before the Principal Judge Family Court was not maintainable. He relies on a judgment of Supreme Court in the matter of Shah Newaz Khan and Others vs. State of Nagaland and Others, 2023 Law Suit (SC) 179 and would submit that the power under Section 21 of CPC can be exercised only in cases in respect of the Court which are subordinate. Therefore, the order of Principal Judge Family Court is well merited, which do not call for any interference. 9. We have heard learned counsel for the parties at length. 10. Section 2 (a) of the Family Courts Act, 1984 defines the judge which says that it means the Judge as the case may be Principal Judge, Additional Principal Judge, or other Judge of a Family Court. Section 4 sub-section 2 prescribes the procedure when the Family Court consists of more than one judge. Section 4(2)(c) gives Principal Judge, the power to make such arrangement as he may deem fit for the distribution of business of Court among the various judges thereof. The relevant section reads as under: “4. Appointment of Judges 1. xxx xxx xxx 2. When a Family Court consists of more than one Judge: (a) xxx xxx xxx (b) xxx xxx xxx (c) The Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof. (d) xxx” 11. Appointment of Judges 1. xxx xxx xxx 2. When a Family Court consists of more than one Judge: (a) xxx xxx xxx (b) xxx xxx xxx (c) The Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof. (d) xxx” 11. A reading of the said Section of the Family Court would therefore, show that the Principal Judge Family Court is empowered to transfer the case to other Additional Principal Judge of the Family Court. 12. Reverting back to the facts, the narrative pushed before us, it reminds us to existing cornerstone that a litigant must repose confidence in judicial proceedings instead of facing a strong head-wind. The judgment is on record that the husband had filed petition for divorce at Family Court which was pending before the District Judge Mungeli. The wife who was residing at Raipur filed an application seeking maintenance under Section 125 of Cr.P.C. and an application for restitution of conjugal rights before the Family Court, Raipur. The High Court in TPC No. 122 of 2022 transferred the divorce petition filed by the wife by its order dated 26.07.2023, ordered the transfer of divorce petition before the Principal Judge Family Court Raipur. 13. The record shows that on 26.06.2023 before that order, the husband sought for transfer of two petitions, one is under Section 125 of Cr.P.C. and another is under Section 9 of the Hindu Marriage Act, sought for transfer to other Additional Principal Judge, Family Court. The application is on record as Annexure-A/8. It appears that the appellant in a guarded gesture made serious allegation. During the submission, certain averments were made that when the application to set aside criminal revision was filed before the Court, the ex-parte maintenance order, certain undesirable comments were also made against the appellant as also the High Court. We don’t want to venture into that at this moment. However, the document which has been placed on record produced by the Principal Judge Family Court of 04.07.2023 and a letter addressed to the Chief Secretary by the Family Court to serve a notice to the appellant of 04.12.2023 would show that the Principal Judge, Family Court followed the issue for seeking clarification from the appellant. However, the document which has been placed on record produced by the Principal Judge Family Court of 04.07.2023 and a letter addressed to the Chief Secretary by the Family Court to serve a notice to the appellant of 04.12.2023 would show that the Principal Judge, Family Court followed the issue for seeking clarification from the appellant. The order dated 04.07.2023 while dismissing the application for transfer of the cases to the other Additional Principal Judge Family Court, the Court observed that separate clarification be obtained from the appellant. 14. The proposition laid on which the respondent placed reliance is of no dispute that Section 24 operate upon the Courts which are subordinate to that particular Court. However, this Court cannot ignore the Section 4(2)(c) wherein, the powers have been conferred on the Principal Judge, to make such arrangements as may deem fit for distribution of business of Court among the various judges. The harmonious interpretation would be that the Principal Judge Family Court is empowered to transfer the cases from one Court to other. To hold it otherwise, the Principal Judge Family Court is very much within its domain to transfer a case from its Court to other in exercise of power under Section 4(2)(c) of Family Court Act. 15. When a litigant’s comes before the Court and the serious doubts are raised which may cause prejudice, the same cannot be ignored casually. Section 11 of the Family Court Act envisages that the proceeding of this type to be held in Camera and the letter which has been addressed by the Family Court whereby, the clarification has been sought from appellant by circulating the letter through Chief Secretary, which is on record is at the instance of the Principal Judge Family Court makes the issues open at the public glare. 16. The Supreme Court in the matter of Kulwinder Kaur vs. Kandi Friends Education Trust and Others, (2008) 3 SCC 659 , has laid down that when there is a reasonable apprehension in the mind of the litigant that he might not get justice in Court when the suit is pending, may be one of the ground and the said proposition has been reiterated in the matter of DAV Boys Senior Secondary School vs. DAV College Managing Committee, (2010) 8 SCC 401 . 17. 17. The prejudice and the doubt if comes in the mind of a litigant, then it has to be gathered from the circumstances and it is difficult to get a direct evidence on that, then in such case, the Court should follow the principle that justice be not only be done, but seems to be done to avoid any flow on the script. 18. Taking into these circumstances and the dispute inter-se between the parties, to advance the cause of justice and to follow the narrative of independent unbiased judgment, in excise of power under Section 24 of Civil Procedure Code read with Section 4(2)(c) of the Family Court, we direct to transfer the three cases pending between the parties i.e. MCC No. 820 of 2022, MJC No. 278 of 2023 and HMA No. 859 of 2023 to other Additional Principal Judge Family Court from the court of Principal Judge Family Court, Raipur. 19. Accordingly, the appeal is allowed. The Order of interim stay shall merge into the final order.