Kerala High Court
Sheney P vs Jayaprakash E.P on 25 March, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Tr.P.(Crl) No.11/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
TR.P(CRL.) NO. 11 OF 2025
AGAINST MC NO.89 OF 2018 OF FAMILY COURT,
PATHANAMTHITTA
PETITIONERS:
1 SHENEY P
AGED 47 YEARS
W/O JAYAPRAKASH E.P., HAVING PERMANENT ADDRESS AT
ANJALI HOUSE, THUVAYOOR SOUTH P.O., KADAMBANADU
VILLAGE, ADOOR TALUK, PATHANAMTHITTA- 691551, NOW
RESIDING AT ARA 25, CHAITHANYA GARDEN,
KONJIRAVILA, MANACAUD P.O., THIRUVANANTHAPURAM,
PIN - 695009
2 AMRITHA JAYAPRAKASH
AGED 26 YEARS
D/O JAYAPRAKASH, HAVING PERMANENT ADDRESS AT
ANJALI HOUSE, THUVAYOOR SOUTH P.O., KADAMBANADU
VILLAGE, ADOOR TALUK, PATHANAMTHITTA- 691551, NOW
RESIDING AT ARA 25, CHAITHANYA GARDEN,
KONJIRAVILA, MANACAUD P.O., THIRUVANANTHAPURAM,
PIN - 695009
BY ADVS.
KEVIN JAMES
ATHUL M.V.
ASWIN V. NAIR
RESPONDENT/RESPONDENT:
JAYAPRAKASH E.P
AGED 54 YEARS
S/O PADMANABHAN NAIR, RESIDING AT AMRITHSAGAR,
THENIPALAM P.O., KADAIKKATTUPARA ROAD, MUDRA
CORNER, MALAPPURAM DISTRICT, PIN - 673636
Tr.P.(Crl) No.11/2025
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THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 20.03.2025, THE COURT ON 25.03.2025 DELIVERED
THE FOLLOWING:
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ORDER
This transfer petition has been filed to transfer MC
No.89/2018, which is pending on the files of the Family Court,
Pathanamthitta, to the Family Court, Kollam apprehending bias on
the part of the Judge.
2. The 1st petitioner is the wife of the respondent and the
2nd petitioner is the daughter born to the 1 st petitioner and the
respondent. The petitioners filed MC No.89/2018 before the Family
Court, Pathanamthitta claiming maintenance. The Family Court
rejected the claim of the petitioners for maintenance as per the
order dated 25/10/2023. The petitioner challenged the said order
before this Court in RPFC No.16/2024. This court as per Annexure
A3 order set aside the finding in the order of the Family Court that
the 1st petitioner is not entitled to claim maintenance and held that
she can claim maintenance from the respondent. MC was remitted
to the Family Court to decide the quantum of maintenance with a
direction to the parties to appear before the Family Court on
18/2/2025. It is thereafter the petitioners have filed the above
transfer petition apprehending bias on the part of the Family Court
Judge.
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3. I have heard Sri.Kevin James Manatharayil, the learned
counsel for the petitioners.
4. The learned counsel for the petitioners submitted that
the petitioners are not likely to have a fair adjudication before the
Family Court, Pathanamthitta as they bonafidely believe that they
will not get justice if the quantum of maintenance is decided by
the learned Judge of the Family Court. The learned counsel further
submitted that from the conduct of the Family Court Judge while
the matter was decided earlier, the petitioners apprehend that
they would not receive a fair and impartial trial from the Family
Court, Pathanamthitta. The learned counsel placed reliance on the
decisions of this Court in Rev.Fr.Punnen Thomas and Another v.
Moran Mar Bassalios and Others (1963 KHC 360) and Renu Alex v.
Alexander Muthalali [2012 (2) KHC 717] and submitted that when
a transfer petition is filed for the reason that there is bias or
prejudice on the part of the Court, concrete proof to such bias
need not be insisted upon and mere apprehension of denial of
justice is sufficient.
5. As stated already, the transfer has been sought mainly
on the ground of apprehension of bias or prejudice on the part of
the Judge of the Family Court. The following two incidents have
been cited by the petitioners to substantiate their plea.
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(i) On 18/8/2023, the petitioners filed Crl.
M.P.No.6/2023 to strike off the defence of the
respondent for non-payment of interim maintenance.
No objection was filed by the respondent to the said
petition. On 13/9/2023, when the matter came up
before the Family Court, the Judge openly declared
that he would not hear the petition for striking off the
defence of the respondent. In the afternoon session,
the learned counsel for the petitioners insisted on
hearing the petition. Then the Family Court Judge
sharply reacted to the counsel saying that he would
not consider it. This has resulted in heated arguments
between the counsel for the petitioners and the Judge.
From there started the antagonistic approach of the
Judge towards the petitioners. The Judge was not
accepting any of the contentions of the petitioners'
counsel and was openly repelling those arguments.
(ii) Though the MC was posted for orders on
28/10/2023, the order was passed on 25/10/2023
without intimating the petitioners.
6. I have called for a report from the learned Family Court
Judge with respect to the above allegations. The learned Judge
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forwarded a report. The learned Judge in the report has made it
clear that he has not shown any reluctance either to consider the
application filed by the petitioners to strike off the defence of the
respondent for non-payment of interim maintenance or to hear the
petition for enforcement of interim maintenance. All the other
allegations regarding heated arguments between the petitioners'
counsel and the Judge are also denied. I see no reason to
disbelieve the explanation of the learned Judge. The report would
further show that Crl. M.P.No.6/2023 was heard on 21/9/2023 and
dismissed on merits. So far as the second ground is concerned, the
report would show that the MC was finally heard on 21/9/2023 and
disposed of on 25/10/2023.
7. The explanation offered by the Judge of the Family
Court shows that the apprehension of bias put forward by the
petitioners is absolutely baseless. That apart, it is pertinent to note
that the petitioners did not file any application for transfer before
the remand. There is no case for the petitioners that after the
remand was made, there was any conduct on the part of the Judge
to apprehend bias or prejudice. As per Annexure A3 order, the
parties were directed to appear before the Family Court on
18/2/2025. Even before that, the petitioners rushed to this court
and filed the transfer petition.
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8. The law with regard to the transfer of cases is well
settled. An order of transfer is not to be passed as a matter of
routine or merely because an interested party has expressed
some apprehension about the proper conduct of the trial. A three-
judge Bench of the Supreme Court in Gurcharan Dass Chadha v.
State of Rajasthan (AIR 1966 SC 1418) has held that mere
allegation that there is apprehension that justice will not be done
in a given case is not sufficient and the Court has further to see
whether the apprehension is reasonable or not. In Abdul Nazar
Madani v. State of T.N. [(2000) 6 SCC 204], the Supreme Court
held that the apprehension of not getting a fair and impartial
inquiry or trial is required to be reasonable and not imaginary,
based upon conjectures and surmises. In Nahar Singh Yadav and
another v. Union of India and Others [(2011) 1 SCC 307], it was
held that there has to be a real apprehension that there would be
a miscarriage of justice. In Usmangani Adambhai Vahora v. State of
Gujarat [2016 (1) KLT SN 117 (C.No.127) SC], it was held that
seeking transfer at the drop of a hat is inconceivable. As stated
already, the reason shown for the transfer and the apprehension
expressed by the petitioners is absolutely mercurial and cannot
remotely be stated to be reasonable.
9. The petitioners have also taken up a contention that
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the 1 petitioner is presently residing in a rented accommodation
st
at Thiruvananthapuram and working as a temporary employee in
Matsyafed and it would be convenient for her if the case is
transferred to Thiruvananthapuram. The purpose of remand is only
to decide the quantum of maintenance. Not much evidence is
required. The presence of the petitioners is required only if they
want to give evidence, that too on a single day.
For the reasons stated above, I see no reason to transfer
the case. Accordingly, the transfer petition is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
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APPENDIX OF TR.P(CRL.) 11/2025
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE CASE FILE OF TR.P.
(C) NO. 844/2023 OF THE HON'BLE HIGH
COURT
Annexure A2 THE TRUE COPY OF THE JUDGMENT DATED
11/01/2024 OF THE HON'BLE HIGH COURT IN
Annexure A3 THE TRUE COPY OF THE JUDGMENT OF THE
HON'BLE HIGH COURT DATED 27/01/2025 IN
Annexure A4 THE TRUE COPY OF THE FACE BOOK POST OF
THE RESPONDENT DATED NIL THREATENING THE
PETITIONER
