While sending a very strict, sensible and significant message to all the litigants who seek transfer of cases from one Judge to the other by making some scandalous or wild allegation in order to browbeat Judges to get things done their way, the Kerala High Court has in a path breaking, pertinent, pragmatic, progressive and powerful judgment titled RB vs AB in TR.P(C) No. 476 of 2022 in OP 619/2017 of Family Court, Irinjalakuda and cited in 2023 LiveLaw (Ker) 44 that was pronounced as recently as on January 19, 2023 dismissed a woman’s petition seeking transfer of a divorce case on the ground of alleged bias and favouritism by the Family Court Judge.

The divorce case had been filed by her husband whose petition was dismissed. It must be mentioned here that the Single Judge Bench of Hon’ble Mr Justice CS Dias said that the petitioner, a woman lawyer, has made a scathing attack on the Family Court Judge by questioning his integrity, honesty and impartiality, on the sole reason that he had passed a string of orders against her. The Bench made it amply clear that the petitioner cannot arm twist and browbeat the learned Judges to get things done in her own way.

At the very outset, the Bench puts forth in para 1 that:
Majesty of law continues to hold its head high notwithstanding such scurrilous attacks made by persons who feel that the law courts will absorb anything and everything, including attacks on their honesty, integrity and impartiality. But it has to be borne in mind that such divinity and magnanimity is not its weakness but its strength. It generally ignores irresponsible statements which are anything but legitimate criticism. It is to be noted that what is permissible is legitimate criticism and not illegitimate insinuation. No court can brook with equanimity something which may have tendency to interfere with the administration of justice…………. observed the Honourable Supreme Court in Haridas Das v. Usha Rani Banik, [(2007) 14 SCC 1].

As things stand, the Bench states in para 2 that:
The petitioner seeks the transfer of O.P.No.619/2017 (Annexure-1) from the Family Court, Irinjalakuda, on the allegation of bias against the learned Judge. The petitioner is the wife of the respondent. The respondent has filed Annexure-1 petition to declare his marriage with the petitioner null and void.

To put things in perspective, the Bench envisages in para 3 that:
The concise case of the petitioner in the transfer petition is as follows:

(i) The petitioner is the wife of the respondent. She is a lawyer by profession.

(ii) The respondent has filed Annexure-1 petition to pass a decree of divorce. The petition is fabricated and false and is not maintainable in law.

(iii) The respondent had also filed a fabricated original petition before this Court as O.P. (FC)No.66/2021 for the expeditious disposal of the Annexure-1 petition. The learned counsel appearing for the respondent has colluded with the respondent and averred falsehood in the said original petition to mislead this Court.

(iv) The respondent and his lawyer have committed the offences under Sections 120(B), 191, 193 and 209 of the Indian Penal Code,1808 and Section 2(c) of the Contempt of Courts Act, 1971.

(v) Immediately on receipt of the notice in Annexure-1 petition, the petitioner filed M.C.No. 86/2017 before the Judicial First-Class Magistrate Court, Irinjalakuda, against the respondent, invoking the provisions of the Protection of Women from Domestic Violence Act, 2005. The respondent’s counsel had admitted that the petitioner’s ornaments are with the respondent, which is a judicial admission. However, the respondent filed a fabricated counter affidavit in the said case. Hence, the petitioner filed a petition before the learned Magistrate to initiate criminal proceedings against the respondent and his lawyer under Section 340 of the Code of Criminal Procedure, 1973 (in short, ‘Cr. PC’).

(vi) The respondent had filed I.A.No.381/2018 (Annexure-13) to deliver interrogatories on the petitioner. The petitioner filed Annexure A15 affidavit to Annexure-13 application. A bare reading of Annexure-15 affidavit would prove that the respondent has filed fabricated petitions.

(vii) On 23.10.2021, the learned Judge considered I.A.Nos.3709/2017, 2664/2019 & 1741/2019 and has passed Annexure-22 common order on the same day. The learned Judge has failed to comply with the Supreme Court rulings on perjury and has allowed the respondent to poison the stream of justice. The above act of the learned Judge is an indication of extraneous consideration, and tantamounts to gross judicial impropriety, indiscipline, lack of integrity, gross misconduct and an act unbecoming of a judicial officer.

(viii) The petitioner had filed I.A.No.8/2021 (Annexure-24) to refer the respondent to a medical board. The respondent filed Annexure-25 objection to the application. The learned Judge dismissed the application by Annexure-27 order. The learned Judge has passed a string of illegal orders on extraneous consideration, which amounts to criminal misconduct and dereliction of duty.

(ix) The petitioner had filed a complaint before the Registrar of this Court to remove the learned Judge from office, but the complaint was closed.

(x) Again, the petitioner filed an application before the Family Court for perjury, which was dismissed by Annexure-32 order.

(xi) The petitioner has lost faith in Family Court because the learned Judge is colluding with the respondent’s lawyers. His acts are adversely affecting the administration of justice.

(xii) The respondent and his lawyers have no regard for the truth and have deliberately defrauded this Court. Hence, Annexure-1 may be transferred from the Family Court, Irinjalakuda, to the Family Court, Ernakulam.

Simply put, the Bench points out in para 5 that:
The petitioner has filed a reply affidavit denying the allegations in the counter affidavit. She has reiterated the contentions in the transfer petition. She has prayed that the transfer petition may be allowed.

Of course, the Bench then mentions in para 6 that:
When the transfer petition came up for admission, this Court had called for a report from the Family Court on finding that allegations of bias and favouritism have been imputed against the learned Judge.

It cannot be just glossed over that the Bench then discloses in para 7 that, The learned Judge, by report dated 10.08.2022, has informed this Court that Annexure-1 petition is filed by the respondent on 03.07.2017 for a decree to declare his marriage with the petitioner null and void or, in the alternative to pass a decree of divorce.

The petitioner has filed her objection. The petitioner has filed several applications in the original petition, including an application under Section 340 Cr. PC. All the applications were dismissed on 20.06.2022 and the order is appended to the report. Subsequently, the respondent filed I.A.No.3709/17 to amend the original petition, which was allowed. Then, the petitioner filed I.A.No.2664/2019 to direct the respondent to return her gold ornaments.

Thereafter, this Court directed Annexure-1 to be disposed of expeditiously. As per the knowledge of the learned Judge, none of the orders has been challenged. The allegations raised against the learned Judge are incorrect. The sole intention of the petitioner is to prolong the determination of the petition on one pretext or the other. The learned Judge has no objection in the case being transferred. He is discharging his duties to the best of his conscious and as per law.

Of course, the Bench lays bare in para 9 that:
It is well-nigh settled in a myriad of judicial precedents that the power to transfer under Section 24 of the Code of Civil Procedure, 1908, is discretionary.

Quite ostensibly, the Bench then clarifies in para 10 that:
It is trite; the convenience of the women and children has to be given due consideration and preference while considering a petition for transfer. Nevertheless, the above principles do not apply in the present case because the petitioner has sought the transfer of the petition on the allegation of bias against the learned Judge of the Family Court.

As it turned out, the Bench then specifies in para 11 that:
The petitioner’s grievance is that the respondent has filed a false case against her, and the learned Judge has passed a string of adverse orders against her in a biased and prejudicial manner, in collusion with the respondent and his counsel on extraneous consideration. The learned Judge lacks integrity and propriety, and his acts are unbecoming of a judicial officer.

Be it noted, the Bench notes in para 18 that:
The petitioner has made a scathing attack on the learned Judge, questioning his integrity, honesty and impartiality. The reason; the learned Judge has passed a string of orders against her. There is no foundation or material to corroborate the accusation other than the bald and wild allegations in the transfer petition.

To be sure, the Bench observes in para 19 that:
Irrefutably, the petitioner has not challenged any of the adverse orders passed against her, and the orders have attained finality. Thus, it is to be inferred that the petitioner is indirectly attacking the orders through the transfer petition.

Quite significantly, the Bench then while citing the relevant case law enunciates in para 21 that:
In L.D. Jaikwal v. State of U.P. [(1984) 3 SCC 405], the Honourable Supreme Court observed as follows:

7. We have yet to come across a Judge who can take a decision which does not displease one side or the other. By the very nature of his work he has to decide matters against one or other of the parties. If the fact that he renders a decision which is resented to by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution. A line has therefore to be drawn somewhere, someday, by someone.

Most significantly, the Bench then minces just no words to hold in para 22 that, On a comprehensive appreciation of the factual matrix and in the background of the principles laid down in the above-referred precedents, the inevitable conclusion is that the petitioner has miserably failed to substantiate the allegation of bias. The petitioner cannot arm twist and browbeat the learned Judges to get things done in her own way.

This Court sternly warns the petitioner to stop her habit of levelling unsubstantiated insinuations against the learned Judges and undermining their dignity and the majesty of law. With reluctance, I refrain from imposing costs on the petitioner on the faintest perception that the party in person has been ill-advised.

Finally, the Bench then concludes by holding in para 23 that:
In Haridas Das v. Usha Rani Banik [(2007) 14 SCC 1], the Honourable Supreme Court observed that Judge bashing and using derogatory and contemptuous language against Judges has become a favourite pastime of some people. These statements tend to scandalise and lower the authority of the courts and cannot be permitted because, for functioning of democracy, an independent judiciary to dispense justice without fear and favour is paramount.

Its strength is the faith and confidence of the people in that institution. That cannot be permitted to be undermined because that will be against the public interest. Judiciary should not be reduced to the position of flies in the hands of wanton boys. Judge bashing is not and cannot be a substitute for constructive criticism. The transfer petition sans substance or merits and is hence dismissed.

In conclusion, we thus see that the Kerala High Court has made it indubitably clear that Judges can’t be browbeaten to get things done their own way. The transfer plea of the petitioner thus stood dismissed. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh