Madras High Court
G.Rajasekhar vs B.Keerthi on 12 September, 2022
C.R.P.(PD)No.2373 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:12.09.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
C.R.P.(PD)No.2373 of 2022
G.Rajasekhar ...Petitioner
Versus
B.Keerthi
...Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the order dated 05.07.2022 made in Tr.O.P.No.1509
of 2022 on the file of Principal Family Court, Chennai.
For Petitioner :Mr.P.V.Sanjeev
For Respondent :Mr.A.Palaniappan
O R D E R
This Revision is filed challenging the order passed in
Tr.O.P.No.1509 of 2022, on the file of Principal Family Court, Chennai, dated
05.07.2022, transferring O.P.No.2257 of 2017, pending on the file of 3rd
Additional Family Court, Chennai.
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C.R.P.(PD)No.2373 of 2022
2. The revision petitioner/husband filed a petition for divorce on
the ground of cruelty and desertion and intermittent mental disorder under
Section 13(1) (ia)(ib) and (iii) of Hindu Marriage Act, 1955. Originally, the
divorce petition in O.P.No.2257 of 2017 was pending on the file of 7th
Additional Family Court, Chennai. The respondent/wife filed Tr.O.P.No.47 of
2019, on the file of Principal Family Court, Chennai for transfer of the case
from the file of 7th Additional Family Court, Chennai, on the ground of
allegations of bias against Presiding Officer and also allegation of insult by
Presiding Officer of 7th Additional Family Court, Chennai. Thereafter, on
request made by the 7th Additional Family Court in O.P.No.2257 of 2017 was
withdrawn from the file of 7th Additional Family Court and transferred to 3rd
Additional Family Court, Chennai.
3. Thereafter, the respondent/wife filed Tr.O.P.No.1509 of 2022
on the file of Principal Family Court, Chennai, seeking transfer of O.P.No.2257
of 2017 again from the file of 3rd Additional Family Court to any other Family
Court. The respondent/wife sought for transfer on the ground, she had
suffered a lot in hearing of the matter, as the learned 3rd Additional Family
Court Judge, insulted the respondent/wife and supported the petitioner and his
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C.R.P.(PD)No.2373 of 2022
lawyer during proceeding. It was also submitted that the evidence was already
closed and when the matter was posted for arguments on 08.04.2022, she filed
an application for reopening of the case and recall of witness and the same was
returned by the learned Judge by way of non speaking order.
4. The learned Principal Family Court Judge, while considering
the application filed by the respondent alleging that the learned Judge insulted
her at the time of hearing, on perusal of records, found that the learned 3rd
Additional Family Court Judge had given sufficient opportunity to the
respondent and passed orders. However, the learned Judge observed that in
view of the allegation that Presiding Officer insulted the respondent, in the
interest of justice, the transfer application needs to be allowed. Aggrieved by
the same, the petitioner/husband has come up with this Civil Revision Petition.
5. The learned counsel for the petitioner submitted that though the
respondent in her transfer application alleged that she was insulted by the
Presiding Officer, she failed to substantiate the same by any acceptable
evidence. The learned counsel also submitted that earlier the respondent sought
for transfer from the file of 7th Additional Family Court, Chennai on similar
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C.R.P.(PD)No.2373 of 2022
allegation and at the request of the Presiding Officer himself the matter was
transferred to 3rd Additional Family Court. It was submitted by the learned
counsel for the petitioner that the respondent is in the habit of making
unsubstantiated allegations against the Presiding Officer and dragging on the
matter. Therefore, he sought for allowing of revision by setting aside the
transfer order passed by the Principal Family Court Judge, Chennai.
6. Per contra, the learned counsel for the respondent by drawing
the attention of this Court, to the evidence of RW.4 recorded on 29.06.2022
submitted that the learned Judge himself put certain questions to the
respondent's witness RW.4 and the said action of learned Judge proves that he
was biased.
7. I have considered the arguments of the learned counsel for the
petitioner and learned counsel for the respondent and also typed set of papers
filed by the petitioner and respondent.
8. Though the respondent in her affidavit alleged that the petition
filed by her for reopening the case and for recalling the witness was returned by
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C.R.P.(PD)No.2373 of 2022
the Presiding Officer, the perusal of typed set of papers filed by the respondent
herself shows that subsequently on 21.04.2022, the matter was reopened and
witnesses were examined. RW.1 was examined on 29.04.2022, RW.2 was
examined on 16.06.2022, RW.3 and RW.4 were examined on 29.06.2022.
Hence, the said averment of the respondent in her transfer application does not
merit acceptance. As far as the allegation that the presiding Officer insulted the
respondent is concerned, such allegation found in the transfer application is
vague. In her averments, the respondent did not explain a specific instance of
ill-treatment by the Presiding Officer. These kind of vague allegations against
the Presiding Officer cannot be the basis for withdrawal of the case and transfer
of the same to other Court.
9. The contention of the learned counsel for the respondent that
the action of the Presiding Officer in putting question to RW.4 demonstrates his
bias against the respondent also cannot be accepted. Section 165 of Evidence
Act, empowers Presiding Officer of the Court to put any question to the
witness.
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C.R.P.(PD)No.2373 of 2022
10. Section 165 of Evidence Act reads as follows:
165. Judge’s power to put questions or order production. ––
The Judge may, in order to discover or to obtain proper proof
of relevant facts, ask any question he pleases, in any form, at
any time, of any witness, or of the parties about any fact
relevant or irrelevant; and may order the production of any
document or thing; and neither the parties nor their agents
shall be entitled to make any objection to any such question or
order, nor, without the leave of the Court, to cross-examine any
witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared
by this Act to be relevant, and duly proved: Provided also that
this section shall not authorize any Judge to compel any
witness to answer any question or to produce any document
which such witness would be entitled to refuse to answer or
produce under sections 121 to 131, both inclusive, if the
question were asked or the document were called for by the
adverse party; nor shall the Judge ask any question which it
would be improper for any other person to ask under section
148 or 149; nor shall he dispense with primary evidence of any
document, except in the cases hereinbefore excepted.
11. The reading of above provision suggests that the Court is
empowered to put any question to the witness, in order to get its doubt clarified
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C.R.P.(PD)No.2373 of 2022
with regard to any fact in issue. Therefore, merely because the Presiding
Officer put question to RW.4, we cannot jump to a conclusion that the
Presiding Officer is biased.
12. I have perused the evidence of RW.4 included in the typed set
of papers filed by the respondent and the learned Judge by putting question
wanted certain clarification from the expert witness, namely the Doctor.
Therefore, the action of the Presiding Officer in putting question to witness, for
the purpose clarification on technical aspect, cannot be the basis for transfer.
13. The learned Principal Judge, Family Court, Chennai in the
impugned order, though found that the Presiding Officer has given sufficient
opportunity to the respondent, ordered transfer merely on the ground of interest
of justice. When transfer is sought for on the ground of allegations of insult by
Presiding Officer, the averment shall specifically explain the act of insult by the
Presiding Officer. The vague allegation of insult by Presiding Officer without
any specific details is not sufficient. From the records, it is clear that this is the
second occasion the respondent has come up with transfer application. Earlier
the respondent filed similar transfer application on the same set of allegations.
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C.R.P.(PD)No.2373 of 2022
14. Considering the totality circumstances of the case, it is
appropriate to interfere with the order of transfer passed by the Principal Family
Court. Accordingly, the Civil Revision Petition is allowed by setting aside the
order dated 05.07.2022 passed in Tr.O.P.No.1509 of 2022, on the file of
Principal Family Court, Chennai. No Costs.
12.09.2022
ub
Index: Yes/ No
Speaking Order / Non-Speaking Order
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C.R.P.(PD)No.2373 of 2022
To
The Principal Family Court,
Chennai.
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C.R.P.(PD)No.2373 of 2022
S.SOUNTHAR, J.
ub
C.R.P(PD)No.2373 of 2022
12.09.2022
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