Julie Jayesh Shah vs Bomanji Petit Road
2012 Latest Caselaw 309 Bom

                                     1/12
                                                           (FCA-119.2012)

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                    
                   CIVIL APPELLATE JURISDICTION




                                            
              FAMILY COURT APPEAL NO.119 OF 2012

    Julie Jayesh Shah              )
    Hindu, Indian Inhabitant,      )




                                           
    Residing at Flat No.           )
    Builidng No.D-2, Karmashetra   )... Appellant
                                   (Original Petitioner)
             V/s




                                  
    Jayesh Trilok Kumar Shah,      )
    Hindu, Indian Inhabitant,
                       ig          )
    Residing at Flat No.26,        )
    Hanuman Sharan, 6th floor      )
                     
    Bomanji Petit Road,            )
    Breach Candy,                  )
    Mumbai - 400 026               )... Respondent.

(Original Respondent)

Mr. Ramesh T. Lalwani for the Appellant.

Mrs. Mrinalini Deshmukh for the Respondent.

                   CORAM:     V. M. KANADE &





                              P.D. KODE JJ.

                   DATE   :     1st November, 2012.





    ORAL JUDGMENT: (V.M. Kanade, J.)

1. Appellant is the wife and Respondent is the husband. For the sake of convenience, parties shall hereinafter be referred to as "wife" and "husband".

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2. The wife has filed this appeal under section 19 of the Family Court Act being aggrieved by the judgment and order

passed by the Principal Judge, Family Court, Mumbai dated

30/08/2012 whereby her Misc. Application No.185 of 2012 seeking transfer of the Petition from Court Room No.5 to any other Court was dismissed.

3. Brief facts giving rise to the present appeal are as under:-

4.

Appellant/wife and Respondent/husband got married on 16/11/1997. One son Parshva was born to them on 7/7/2000.

Differences and disputes arose between husband and wife and, accordingly, negotiations were going on in the month of April, 2012 and May 2012. Draft consent terms were

exchanged between the parties. The husband, however,

filed Custody Petition bearing No. D-35/2012 in the Family Court and an ex parte order of injunction was granted in

favour of the husband.

5. On 24/1/2012, wife appeared before the Trial Court. The learned Judge granted four days' time to the wife to file

her Written Statement. On 30/5/2012, the learned Judge in C.R. No.5 further passed an order that the Petition shall be heard on day-to-day basis. On 15/6/2012, the learned Judge in C.R. No.5 recorded in the roznama and took on record the draft consent terms prepared by the wife which were not

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even finalized and these consent terms were discussed at the instance of the learned Judge as out of court settlement.

Thereafter, several ex parte orders were passed after the

date was preponed without giving notice to the wife and there were as many as 29 dates from the date of filing of the Petition i.e. from 21/5/2012 till the impugned order was

passed by the learned Principal Judge.

6. The learned Counsel appearing on behalf of the

Appellant submitted that the learned Judge in Court Room

No.5 had passed as many as 3 ex parte orders on 22/5/2012, 6/7/2012 and 16/7/2012 and that too after preponing the

date which was already given to the wife and without giving notice of the said preponed date, in her absence the said ex parte orders were passed. It is submitted that, normally, the

matter is referred to the Councilor after it is filed as is the

normal practice in the Trial Court. The learned Judge in Court Room No.5 directed the wife to file her Written Statement

within 4 days which is contrary to the provisions of Civil Procedure Code. It is submitted that undue precedence was given to the present case which was filed in May, 2012 though number of similar Custody Petitions were pending

since 2007 in that court. It is submitted that within a span of 2 ½ months, the learned Judge in Court Room No.5 has kept as many as 25 hearings for which there was no justification. It is then submitted that the wife was compelled to file her Written Statement even before counseling was

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over and she was not granted time as provided under Order VIII Rule 1 of the Civil Procedure Code for filing Written

Statement. It is submitted that under these circumstances,

the wife had no other option but to file Transfer Application. It is submitted that the Transfer Application was filed not on the basis of merits of the various orders passed by the

learned Presiding Officer in Court Room No.5 but the grievance of the wife was that such orders were passed without notice to her and that too after preponing the dates

of hearing and without giving notice to her of the preponed

dates. The learned Counsel for the appellant submitted that at no point of time the appellant/wife had doubted

integrity of the learned Judge but she has serious apprehension that she is not likely to get justice on account of the manner in which the matter had proceeded before the

said Court. It is submitted that the orders below Exhibit-6,

Exhibit-35 and Exhibit-36 were passed without hearing the appellant/wife. It is submitted that so fas as the order below

Exhibit-13 is concerned, the learned Judge had heard only Exhibit-13 and, yet, by passing the order below Exhibit-13, the learned Judge had virtually decided Exhibit-6 which was not even heard. It is submitted that the learned Judge in

Court Room No.5 had gone to the extent of modifying the consent terms between the parties though no order was passed in terms of the consent terms. It is then submitted that though the Transfer Application was dismissed by the Principal Judge by order dated 30/08/2012, further

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proceedings before Court Room No.5 were stayed till 10/09/2012 and yet, the learned Judge in Court Room No.5

took up the hearing of the case on two separate dates prior

to the expiry of 10/9/2012. The learned Counsel for the appellant has taken us through the roznama and has submitted that no order was passed granting access of the

child to the husband, yet the application was filed by the husband seeking an access with the help of police. It is submitted that the Principal Judge by a detailed order

rejected the application of the husband seeking an access

through police and had also observed that there was no order passed by the learned Judge in Court Room No.5

granting access to the husband and the wife was being pressurized to give access only on the basis of the Consent Terms which were taken on record by the learned Judge. It is

submitted that the child was terrorized by the husband and

on two occasions, the Commissioner who was supposed to report the proceedings of access had given a report that the

child had refused to meet his father. The learned Counsel for the appellant submitted that the justice is not only to be done but must been seen to be done and on account of what had transpired before the learned Judge in Court Room No.5

in the last 3 months, wife has an apprehension that she is not likely to get justice in the said Court and, therefore, she was constrained to file Transfer Application. It is submitted that, accordingly, Principal Judge did not take into consideration the facts in its proper perspective and had erred in rejecting

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the Transfer Application.

7. The learned Counsel appearing on behalf of the

Appellant has relied upon the following judgments:-

(1) P.K. Gosh, I.A.S. & Anr Vs. J.G. Rajput1 AIR 1996 SC 513

(2) Lalita Rajya Lakshmi & Anr. vs. State of Bihar and anr2 (3) J. Pedda Reddamma vs. B. Twinkle3 (4) Kulwinder Kaur @ Kulwinder Gurcharan Singh vs.

Kandi Friends Education Trust and Ors.4

(5) Satish Jaggi vs. State of Chhattisgarh and Ors5

8 On the other hand, Mrs. Mrinalini Deshmukh learned

Counsel appearing on behalf of the husband vehemently urged that the appeal is liable to be dismissed. Our attention

is invited to the object and purpose of the Family Court Act and also Preamble of the Family Court Act. She submitted

that the learned Judge in Court Room No.5 had not committed any illegality in passing any of the orders. She

then submitted that wild, reckless and unfounded allegations were made against the learned Judge and if such applications were entertained, it would amount to complete anarchy and

therefore same could not be permitted at the instance of the wife. She submitted that if the appellant/wife was aggrieved by the orders passed by the learned Judge in Court Room 1 AIR 1996 SC 513 2 AIR 1957 Patna 198 32004(1 Andh WR 588 4 AIR 2008 SC 1333 5 2007 (3) SCC 72

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No.5, she had a right to challenge those orders in the higher court but merely because those orders were passed against

her, she had no right to file an application for transfer under

section 24 and 25 of the Civil Procedure Code. It is submitted that section 24 was being grossly misused and abused by the appellant/wife and if such applications are

entertained it would lead to completely disastrous situation and it would open flood gates in this Court. It is submitted that the appellant/wife should tender unconditional apology

in writing to the learned judge of the Family Court since it

virtually amounted to gross contempt of the Court.

9. We have heard the learned Counsel appearing for the Appellant and the learned Counsel appearing for the Respondent at length.

10. If an application is made seeking transfer of a case from one Court to another under section 24 of the Civil

Procedure Code, the said application can be entertained and allowed as held by the High Court of Patna in Lalita Rajya Lakshmi and Anr. vs. State of Bihar and Anr 1 on the following grounds:

"(1) When superior court is satisfied that proceedings in one court constitute an abuse of process of courts;

1 AIR 1957 Pat 198

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(2) when it is clear that some prejudice has been created, and that a fair hearing, and an impartial

adjudication, could not be reasonably expected, even though such a state of things has been

brought about by conduct of very party applying for transfer;

(3) where there is any reasonable ground for

supposing that a prejudice against a party's pleader has in any manner or measure affected Judicial attitude of court towards Petitioner, or his case; and

(4) if a party feels that he is not likely to have a fair trial before a particular court."

The Patna High Court, in the said case, also held that this

apprehension must be such that a reasonable man might reasonably be expected to have.

11. The Andra Pradesh High Court in J. Pedda Reddamma

vs. B. Twinkle1 in para 9 of its judgment made the following observations:-

"(9) THE learned trial Judge taking up the proceedings in spite of the orders of stay would naturally cause apprehension in the minds of affected parties, and so the

petitioners are justified in feeling that they may not get justice before the Court in which the proceedings are pending."

1 [2004] 1 AndhWR 588

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Similarly, the Apex Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and Ors 1

in para 14 of its judgment has observed as under:-

"14...........If on the above or other relevant considerations, the Court feels that the plaintiff

or the defendant is not likely to have a 'fair trial' in the Court from which he seeks to transfer a case, it is not only the power, but

the duty of the Court to make such order."

Similarly, the Apex Court in Satish Jaggi vs. State of

Chhattisgarh and Ors.2 in para 11 of its judgment has observed as under:-

"11. ................to ensure that justice is not

only done, but also seen to be done and the peculiar facts of the case, we feel that it will

be appropriate if the High Court transfers the case to some other Sessions Court........."

12. Keeping in view the observations made by the Apex

Court and the other High Courts, we will have to examine the facts and circumstances of the present case.

13. At the outset, it has to be noted that the 1 AIR 2008 SC 1333 2 (2007) 3 SCC 62

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Appellant/Petitioner has not made any allegation regarding integrity of the learned Judge of the Family Court. The

learned Counsel has candidly and very fairly stated that

application for transfer is not made because he has an apprehension about integrity of the Judge or merely because some adverse orders are passed against the

Appellant/Petitioner. We must also note that the concerned Judicial Officer is one of the finest Officers in the State and her work had been appreciated throughout the Country and

also abroad when she was working as Judicial Magistrate

handling cases under PITA and an award has been given to her by the United States Government through the Secretary

of State Mrs Hillary Clinton. She has been recently appointed as a Judge of the Family Court.

14. A Custody Petition was filed by the Respondent in the

Family Court. Efforts were made by the marriage councilor to find out the ways and and means to amicably resolve the

dispute between the parties and consent terms were also drafted. However, at the last moment, there was disagreement between the parties. Petition was filed on 22nd/23rd May 2012. Almost, 29 dates were given. The

matter was heard practically every alternate day. The record shows that direction was given to the Appellant to file Written Statement within four days. The roznama indicates that though certain dates were given after the Appellant was served, these dates were preponed without giving notice to

(FCA-119.2012)

the appellant and the ex-parte orders were passed and an order was passed that the Petition shall be heard on day-to-

day basis. Lastly, the main grievance of the Appellant is that

the application for transfer was filed before the Principal Judge, Family Court which came to be rejected and even though the stay was granted to the proceedings before the

learned judge upto 10/09/2012, before the said date the learned Judge was pleased to take up the matter for further hearing on the question of access of child. In our view,

therefore, a case is made out by the Appellant that she is not

likely to get fair trial before this Judge. There was no reason why without giving notice to the Appellant, ex-parte orders

were passed and that too after postponing the dates which were already given. Similarly, when there was stay of further proceedings granted by the Principal Judge, Family Court till

10/09/2012, hearing the application for access prior to that

date was uncalled for and unwarranted. In the said application a prayer was that with the police help the

Respondent may be permitted to enter the house of the Appellant and access of the child may be given to the father. It is at this point of time that the present appeal was filed and this Court, therefore, was constrained to stay the

proceedings before the learned Judge. Liberty, however, was granted to the parties to approach the Principal Judge for any further interim orders regarding access. It is necessary to note here that the Principal Judge, Family Court by a reasoned order rejected the application filed by the

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Respondent/husband and observed that there was no formal order of the Court granting access.

15. We do not wish to make any observations on the merits of the case. We are, however, of the view that this is a fit case where the case should be transferred from Court Room

No.5 and Principal Judge is directed to either hear the case herself or transfer it to any other Court. With these directions appeal is allowed and disposed of.

    (P.D. KODE, J.)                (V.M. KANADE, J.)
       
    






    B.D. Pandit