Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK TRP(C) No.61 of 2024 In the matter of an Application under Section 24 read with Section 151 of the Code of Civil Procedure, 1908 *** Dr. Pratik Swain, Aged about 34 years Son of Ek. Pradipta Kumar Swain, At House No.305, Regal Dove Apartment, Patia, PS-Chandrasekharpur, Bhubaneswar, District: Khordha, Odisha Bhubaneswar. … -VERSUS- Petitioner Dr. Aliva Pradhan, Aged about 30 years, Wife of Dr. Pratik Swain, Daughter of Er. Akshya Kumar Pradhan, At present B/2. MI, Colony, Unit IX, PO-Bhoi Nagar, PS-Sahidnagar, Bhubaneswar, District-Khordha, Pin-751022. … Opposite Party. Counsel appeared for the parties: For the Petitioner : Mr. Bibekananda Bhuyan, Senior Advocate assisted by M/s. Sourav Suman Bhuyan, and Sujata Sahoo TRP(C) No.61 of 2024 Page 1 of 16 For the Opposite party S.S. Mohapatra,Advocates
Legal Reasoning
: Mr. Samir Kumar Mishra, Senior Advocate assisted by M/s. Pragnya Sarita Mohanty, Jagajiban Pradhan, Susarita Sahoo, S. Panigrahi and B. Pattnaik, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 14.02.2025 :: Date of Order : 14.02.2025
Decision
ORDER The Petitioner-husband has filed a petition under Section 27 of the Special Marriage Act, for dissolution of marriage dated 24.04.2017 before the learned Judge, Family Court-II, Bhubaneswar on the allegation of cruelty, wherein the WS has been filed by the Opposite Party-wife and the Petitioner has been cross examined and the evidence from the side of the Opposite Party is yet to begin. 1.1. It is alleged by the Petitioner during the course of trial, the learned Judge, Family Court-II, Bhubaneswar made several derogatory statement/adverse remarks on the Petitioner and also against the lawyer. TRP(C) No.61 of 2024 Page 2 of 16 1.2. It is also alleged that the learned Judge, Family Court- II, Bhubaneswar persuaded the Petitioner to accept the Opposite Party as his wife. Apprehending that in Civil Proceeding bearing C.P. No.949 of 2021, the Petitioner may not get proper justice, he approached this Court by way of this petition seeking transfer of the aforesaid CP No.949 of 2021 from the Court of the learned Judge, Family Court-II, Bhubaneswar to the Court of the learned Judge, Family Court-I, Bhubaneswar. 2. Facts as adumbrated in the transfer petition at paragraphs-9, 10 and 11 reveal that the Petitioner has made allegation against the learned Judge, Family Court-II, Bhubaneswar. 3. Mr. Bibekananda Bhuyan, learned Senior Advocate along with Mr. Sourav Suman Bhuyan, learned counsel vehemently contended that when the learned Judge, Family Court-II, Bhubaneswar conducted in a manner which is unbecoming of a Judge, the Petitioner feels it appropriate not to appear before him and seek transfer of the case as he would not get justice. 3.1. The allegation made by the Petitioner inter alia contained as follows:- TRP(C) No.61 of 2024 Page 3 of 16 “Similarly, by seeking the ring worn by the petitioner, the learned Judge made a derogatory remark as to whether the said rings were gifted in the marriage or not but the petitioner keeping his calm replied that the ring in question were not gifted in marriage rather all the ornaments received in marriage is in the custody of the respondent/wife. On such remark, everyone in the court room were laughing, for which the petitioner felt really insulted. The Judge further remarked that now a days the modern girls have no house hold responsible which should not be expected from them”. 3.2. Citing other instances, the learned Senior Advocate appearing for the Petitioner vehemently contended that this case is fit case to get the C.P. No.949 of 2021 transferred from the Court of the learned Judge, Family Court-II, Bhubaneswar to the Court of the learned Judge, Family Court-I, Bhubaneswar. It is contended that the allegations basically against the learned Judge, Family Court-II, Bhubaneswar, but not against the Opposite Party-wife. 4. Mr. Samir Kumar Mishra, learned Senior Advocate along with Ms. Pragnya Sarita Mohanty, learned counsel appearing for the Opposite Party submitted that he has filed counter affidavit on behalf of Opposite Party-wife after serving copy thereof on learned Senior Counsel appearing for the Petitioner. TRP(C) No.61 of 2024 Page 4 of 16 4.1. In the said counter affidavit, learned Senior Advocate relied on paragraphs-5 & 6, which runs as follows:- “5. That the statement made in paragraph 10 and 11 of the petitions is absolutely false, no such incident as claimed in paragraph 10 of the petition has ever occurred during examination of the petitioner. In fact, neither the opposite party nor her father are anyway acquainted with the learned Judge who is adjudicating the matter and therefore the apprehension/allegation in para 10 and 11 of the petition are without any basis and liable to be rejected. 6. That though it is alleged that the petitioner faced humiliation as alleged repeatedly, in fact, except the date, he appeared before the Court below he has never appeared before the Court on any other occasion.” 4.2. He submitted that a person cannot take away the case from the Court while in seisin of the matter by making wild unfounded allegations. The Petitioner having merely stated false and concocted story without proof of events cannot be granted the relief claimed for transfer petition. If a false and fabricated story without supporting material is believed,and on that basis the transfer of the case is directed from the Court of learned Judge, Family Court-II, Bhubaneswar to the Court of learned Judge, Family Court-I, Bhubaneswar is allowed, it will diminish the confidence of litigant/ TRP(C) No.61 of 2024 Page 5 of 16 public on the Court and the proceedings before it. It is strenuously argued that unsubstantiated fact cannot be the basis for transfer. 5. Heard Mr. Bibekananda Bhuyan, learned Senior Advocate along with Mr. Sourav Suman Bhuyan, learned counsel appearing for the Petitioner and Mr. Samir Kumar Mishra, learned Senior Advocate along with Ms. Pragnya Sarita Mohanty, learned counsel appearing for the Opposite Party. 5.1. An attempt has been made on 13.02.2025 to explore possibility of amicable settlement of the matter between the parties, when the matter is taken up by this Court, on the request of learned counsel the matter stood adjourned and directed to be posted today for furnishing necessary instruction. Sri Samir Kumar Mishra, learned Senior Advocate submitted that there is no scope for any settlement but for completion of C.P. No.949 of 2021 by the learned Judge, Family Court. 5.2. After hearing is concluded, the matter stood kept for passing order in official chamber. 6. On perusal of record, this Court on 28.03.2024 passed the following order:- TRP(C) No.61 of 2024 Page 6 of 16 “2. Issue notice to opposite party by speed post fixing a short returnable date. Requisites be filed by 2nd April, 2024. 3. Perusal of the transfer petition reveals that certain allegations have been made against the Presiding Officer in paragraphs-9 and 10. Let a copy of the transfer petition be supplied to the Judge, Family Court-II, Bhubaneswar,who shall submit a report to this Court confidentially in respect of such averments. 4. List this matter on 18th April, 2024.” 6.1. Pursuant to the aforesaid order, the report has been submitted by the learned Judge, Family Court-II, Bhubaneswar in a sealed cover, which was opened by this Court on two occasions and today also the sealed cover was opened for the sake of perusal and resealed in the open Court. However, at the time of dictating the order, said report has been referred to by opening the seal, but the same is resealed and kept in record after passing of this order. 6.2. Suffice it to narrate relevant portion of the explanation contained in the said report, which is to the following effect: “*** The Petitioner-husband only appeared before this Court on 08.02.2024 to depose evidence and though several opportunities were given to him he did not file his objection nor asset liability disclosure statement in TRP(C) No.61 of 2024 Page 7 of 16 I.A. No.38 of 2021 for which order has been passed for appearance of the petitioner-husband on dated 02.12.2023 failing which the I.A. will be heard in his absence. Despite such order, the petitioner-husband has not appeared or comply the direction of the Court after three Nos. of adjournment in the said I.A. than It is further humbly submitted that the Court of the Judge, Family Court-II is running in the partitioned Court room of the learned Judge, Family Court-I, Bhubaneswar in a cabin. The said cabin is too small to four people. Further, accommodate more evidence of the witness is always recorded in the cabin chamber of the Presiding Officer in camera as per the Family Courts Act. So there is no occasion for the general public or other advocates or litigants to present inside the cabin chamber of the Presiding Officer to watch the proceeding of any case. So the allegation of the petitioner-husband that on multiple occasions, I forced him to accept his wife is blatant falsehood due to his regular non- attendance in the Court and the conciliation process is already over in the previous Court. themselves, Similarly, it is humbly submitted that when the Court room is not filled and while recording evidence in presence of the learned amicus curiae for both the I have never parties and parties sarcastically questioned the petitioner with respect to unwarranted facts as alleged. Only while giving oath the name, father‟s name, age, address and profession of the witness were asked and recorded by me in the deposition form. Therefore, there is no occasion for the Court to hear anything more from the witness regarding his profession or to pass any remark. TRP(C) No.61 of 2024 Page 8 of 16 *** It is also humbly submitted that the allegation of unlocking the mobile phone by the Presiding Officer and showing the photograph of the father of the Opp. Party is is completely a false and fabricated story. It respectfully submitted that I have neither acquaintance with the respondent-wife nor with her father for which the question of keeping photograph of her father in the mobile phone does arise. Further, till date, no such prejudicial order is passed against the petitioner- husband either in the main case or in the I.A. So, there is no occasion of biasness of the Presiding Officer towards the Opp. Party-wife.” 6.3. From the aforesaid report submitted by the learned Judge, Family Court-II, Bhubaneswar and the affidavit submitted by the Opposite Party, it is manifest that the scope of showing misdemeanour towards the Petitioner and ridicule the Petitioner publicly, as alleged by the Petitioner, is scanty inasmuch as the evidence of witness is “always recorded in cabin chamber of the Presiding Officer in-camera as per the Family Courts Act”. 6.4. Noteworthy here to refer to Section 11 of the Family Courts Act, 1984, which reads thus: “11. Proceedings to be held in camera.— In every suit or proceedings to which this Act applies, the proceedings may be held in camera TRP(C) No.61 of 2024 Page 9 of 16 if the Family Court so desires and shall be so held if either party so desires” 6.5. Scrutiny of averments made in the transfer petition it transpires, except making allegation that “derogatory remarks on the dress code so also the hair style of the Petitioner publicly” and other incidental facts during the course of the examination of witness/Petitioner, no tangible material is placed on record to believe that there was possibility of derogatory remarks being made by the learned Judge, Family Court-II, Bhubaneswar against the Petitioner “publicly” as the recording of evidence is stated to have been made in- camera. 6.6. Learned Senior Advocate appearing for the Opposite Party cited the judgment rendered in the case of Mahesh Prasad Sen (Napit) Vrs. Dhannulal Namdeo, 2023 SCC OnLine MP 4913, wherein the following observations are made which are felt pertinent for the present purpose:- “6. Transfer of cases from one Court to another is a serious matter particularly when transfer is sought by making allegations against Presiding Officer. It sometimes indirectly causes doubt on the integrity and competence of Presiding Officer of the Court from whom the matter is transferred. In cases where ground for transfer is likelihood of bias of Presiding Officer, it is onerous duty of Court to see, TRP(C) No.61 of 2024 Page 10 of 16 whether such ground has been substantiated with reasonable certainty or not. It should not be done without a proper and sufficient cause. 7. In Maneka Sanjay GandhiVrs. Rani Jethmalani, 1979 Cri. L.J. 458 (SC) the Hon‟ble Supreme Court has said: Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of like mini grievances. Something more substantial, more compelling, more imperiling, from the point of view of public its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. legal services or justice and 8. One of the common ground which generally is taken is of distrust in Presiding Officer of the Court. Here the Courts have to be very careful while passing the orders for transfer of case. 9. The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under Section 24, CPC, the Court must be satisfied that the apprehension of bias or prejudice is bona fide and reasonable. The expression of apprehension, must be proved/substantiated by circumstances and material placed by such applicant before the Court. It cannot be taken as granted that mere allegation would be sufficient to justify transfer. TRP(C) No.61 of 2024 Page 11 of 16 10. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. See Rajkot Cancer Society Vrs. Municipal Corporation, Rajkot, AIR 1988 Guj 63; Pasupala Fakruddin Vrs. Jamia Masque, AIR 2003 AP 448; and, Nandini Chatterjee Vrs. Arup Hari Chatterjee, AIR 2001 Cal 26. 11. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer. 12. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. the allegations are If apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self-esteem, confidence and above all the majesty of institution of justice. TRP(C) No.61 of 2024 Page 12 of 16 13. The justice delivery system knows no caste, religion, creed, colour etc. It is a system following principle of black and white, i.e., truth and false. Whatever is unfair, that is identified and given its due treatment and whatever is good is retained. Whoever suffers injustice is attempted to be given justice and that is called dispensation of justice. The prevailing system of dispensation of justice in Country, presently, has different tiers. At the ground level, the Courts are commonly known as “Subordinate Judiciary” and they form basis of administration of justice. Sometimes it is said that subordinate judiciary forms very backbone of administration of justice. Though there are various other kinds of adjudicatory forums and then various kinds of Tribunals etc. but firstly they are not considered to be the regular Courts for adjudication of disputes, and, secondly the kind and degree of faith, people have, in regular established Courts, is yet to be developed in other forums. In common parlance, the regular Courts, known for appropriate adjudication of disputes basically constitute subordinate judiciary, namely, the District Court; the High Courts and the Apex Court. 14. The hierarchy gives appellate and supervisory powers in various ways. The supervisory control of District judiciary has been conferred upon High Court, which is the highest Court at provincial level and is under constitutional obligation to see effective functioning of subordinate Courts by virtue of power conferred by Article 235 read with 227 of the Constitution of India. 15. If there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, the damage is TRP(C) No.61 of 2024 Page 13 of 16 is based on caused not only to the reputation of the concerned Judge, but, also to the fair name of judiciary. The the foundation of our system 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. Reference may be made to the judgment of the High Court of Allahabad in the case of Amit Agrawal Vrs. Atul Gupta, 2014 SCC OnLine All 16200. 16. There is no manner in which a judicial officer may wear his impartiality on his sleeves. Scandalizing a judicial Officer of subordinate Court is bound to shake confidence of the litigating public in the system and has to be tackled strictly. 17. This Court also had the occasion to consider the necessity and desirability of transfer of a case from one court to another on the apprehension of one of the parties to the case. Kindly see Sudarshan Jain Vrs. Deep Chand, AIR 2006 MP 6. It was inter-alia held therein as under:— „In view of the aforesaid pronouncement of law as far as the allegation that the learned trial Judge has rejected certain applications cannot be considered for transfer of the case. The finding recorded by the learned District Judge that the petitioner was making endeavour to procrastinate the proceedings, in my considered opinion, is totally immaterial for adjudication of the controversy in this case. What really has arisen for adjudication is whether the allegation TRP(C) No.61 of 2024 Page 14 of 16 to be made against the Presiding Officer warrants transfer and should have been allowed by the learned District Judge. What the real ground is that the respondent No. 1, Deep Chand Jain, has been visiting the house of the learned trial Judge. It is, in fact, a plea of bias a stand relating to prejudice and stance of mala fide. As has been pleaded, this has created an apprehension in the mind of the petitioner. As has been stated, it is well settled that a case ought transferred when a party reasonably apprehends that he is not likely to have a fair trial before a particular Court. Narration of facts clearly exposts that the petitioner was aggrieved by certain orders passed by the learned trial Judge and also by certain adverse remarks because he refused the application for adjournment on the ground that a counsel from Jabalpur would be conducting the proceeding. The said ground cannot be treated to be a justified ground for transfer. ***‟ ***” 7. This Court, in the light of the above enunciation of law vis-(cid:224)-vis the pleadings contained in the transfer petition qua unsubstantiated allegation against the learned Judicial Officer,does not find good ground justifying direction to transfer of C.P. Case No.949 of 2021 from the Court of the learned Judge, Family Court-II, Bhubaneswar to the Court of the learned Judge, Family Court-I, Bhubaneswar. TRP(C) No.61 of 2024 Page 15 of 16 8. In the result, the transfer petition is dismissed, being devoid of merits. No costs. High Court of Orissa, Cuttack The14th February, 2025//Laxmikant (MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Feb-2025 07:35:40 TRP(C) No.61 of 2024 Page 16 of 16