IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.533 of 2009 Archana Kumari, w/o Shailesh Sharma, presently residing at C/O Sri Rajendra Prasad Singh, Mahatma Gandhi Nagar, P.S. Patrakar Nagar, Kankarbagh, Patna …………………. Petitioner Versus Shailesh Sharma, S/O Shivdatt Sharma, presently residing at Village- Koyal, P.S. Karpi, District- Arwal, as well as C.D.144, Sector-III, P.S. Dhurwa, Hatia, Jharkhand ….. Opp. Party. ----------- For the petitioner: Mr. Yogesh Chandra Verma, Sr.Advocate and Sudhir Kumar Rai, Advocate For the Opp.Party: Mr. Dronacharya, Advocate ------------ 5. 28.10.2009 Heard learned counsel for the petitioner and learned counsel for the opposite party. The petitioner has come against the order dated 6.11.2008 passed by the Principal Judge, Family Court, Patna in Miscellaneous Transfer Case No. 2 of 2008 arising out of Maintenance Case No. 127(M) of 2007 by which he has rejected the petitioner’s petition filed for transfer of the said Maintenance Case from the Court of Additional Principal Judge, Family Court, Patna to that of the Principal Judge, Family Court, Patna. The short facts, relevant for consideration of the present matter, are that the petitioner Archana Kumari was married to the opposite party, Shailesh Sharma on 17.6.2005. Certain disputes thereafter arose between the parties and a criminal case was filed, inter alia, under Sections 498A IPC and 3/4 of the Dowry Prohibition Act in which the trial is pending in the Court of SDJM, Patna. A girl child was also born from the said marriage and claiming desertion the petitioner filed Maintenance Case No. 127(M) of 2007 on 7.7.2007 in the Court 2 of Principal Judge, Family Court, Patna seeking maintenance of Rs. 20,000/- per month under Section 125 Cr.P.C. The opposite party appeared in the matter on 20.11.2007. Subsequently, the case was transferred to the Court of the Additional Principal Judge, Family Court, Patna on 17.5.2008. The Opposite party also filed Matrimonial Case No. 130 of 2008 making various allegations against the petitioner and praying for restitution of conjugal rights on 3.3.2008. In the meantime, the petitioner applied for ad interim maintenance of Rs. 18,000/- per month on 3.1.2008. After the failure of the attempt at reconciliation, the maintenance case was put up for hearing on 30.6.2008 and learned counsel for the petitioner was heard and the matter was adjourned to 1.7.2008 and thereafter to 3.7.2008, on which subsequent date learned counsel for the opposite party was heard in part and the matter was again adjourned for further hearing to 5.7.2008. Subsequent to the said order of adjournment on 3.7.2008, in a different ink and handwriting it was directed in the order sheet that the petitioner shall be personally present and receive notice of Matrimonial Case No. 130/2008. On 5.7.2008 although counsels appeared but the petitioner was not personally present which fact was noted in the order sheet. Finding that the petitioner had not appeared nor her counsel was prepared to accept the summons of Matrimonial Case No. 130/2008, the Court again directed the petitioner to be personally present and accept the notice of the matrimonial case. It was further directed 3 that since both the matters relate to the same parties and are in connection with their marriage hence both should be heard together, and the matter was again fixed for 5.9.2008. Claiming to be aggrieved by the same, the petitioner filed Miscellaneous Transfer Case No.02 of 2008 before the Principal Judge, Family Court, Patna seeking transfer of the case from the Court of the Additional Principal Judge, Family Court to that of the Principal Judge himself. On a detailed consideration of the pleadings and submissions of both the parties, by the impugned order dated 6.11.2008 the learned Principal Judge, Family Court, Patna has rejected the said application for recalling of Maintenance Case No. 127(M)/2007 from the Court of Additional Principal Judge to his Court. Learned counsel for the petitioner submits that the very action of the Additional Principal Judge in writing something in the order sheet on 3.7.2008 behind the back of the petitioner or his counsel goes to show that he was acting in the matter on extraneous considerations and contrary to the prescribed procedure. It is further submitted that the direction of the learned Additional Principal Judge to hear both the matters together also shows his bias against the petitioner. It is stated that there was no application from the other side for hearing both the matters together and yet the said order has been passed. It is contended that the prayer for maintenance under Section 125 Cr.P.C. is a very urgent matter and the nature of such a case is 4 entirely different from a matrimonial case which will take a much longer period of time to decide. Thus, when Section 125 Cr.P.C. matter had proceeded and was at the stage of final hearing of arguments by the opposite party there was no occasion to direct the hearing of the same along with the matrimonial case and this goes to show that the Court had acted for extraneous consideration. It is therefore urged that the said action of the learned Additional Principal Judge creates apprehension in the mind of the petitioner that she will not get justice from him and accordingly the prayer for transfer was rightly made before the Principal Judge who had seriously erred in rejecting the same. In support of the aforesaid proposition learned counsel relies upon two decisions of the Supreme Court. The first decision is that of Manak Lal, Advocate Vs. Chand Singhvi and others: AIR 1957 SC 425, in the relevant part of para-4 of which it has been held as follows:- “…….It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done……….” 5 The other case from which he seeks support is that of G.X.Francis and others Vs. Banke Bihari Singh and another: AIR 1958 SC 309; the relevant part of para-9 of the said judgment is quoted below:- “ We also reject outright the allegation that the accused will not get a fair trial any where in Madhya Pradesh. That is much too wide and sweeping a statement and we can find nothing on the record to justify such an apprehension. There are large areas of the new State of Madhya Pradesh that had no concern with the old State and we can find nothing to justify a fear that Courts in areas like Bhopal, Gwalior or Indore, or even in other areas of the old Madhya Pradesh remote from the immediate scene of controversy, would be influenced by events that happened in and around Jashpur and the neighbouring areas. But we do feel that good grounds for transfer from Jashpurnagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined particularly among reasonable Christians all over India, not because the Judge was unfair or biased but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting and even if justice were done it would not be “seen to be done”. Learned counsel also urges that even the Additional Principal Judge by his order dated 28.8.2008 has sought transfer of the case and directed his office to write a letter to the Family Judge, Patna to recall the case from his Court in the interest of justice. It is further argued that in view of the aforesaid facts and circumstances, the petitioner will always have an 6 apprehension that the Additional Principal Judge may not do justice to her case and thus for the said additional reason it is now a fit case for transfer from the Court of Additional Principal Judge to that of Principal Judge, Family Court, Patna. Learned counsel for the opposite party on the other hand submits that there was nothing wrong in the action of the Additional Principal Judge in directing the petitioner to be personally present in Court for accepting the notice of Matrimonial Case No. 130/2008. It is submitted that under Section 10(3) of the Family Courts Act, 1984 the Family Court has been given the freedom to lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other. In the said circumstances, since both the maintenance matter as also the matrimonial case for restitution of conjugal rights pertain to the same parties and raise certain issues which would be common and relevant for the decision of either of the matters, hence, the court below had acted bona fide in directing the petitioner to appear personally so as to receive notice of matrimonial case in order to ensure that both the matters are disposed of expeditiously. Learned counsel also submits that the sole intention of the petitioner is to some how or the other delay consideration or disposal of the matrimonial case and get an order in the maintenance matter. It is submitted that the petitioner is taking advantage of the fact that her brother 7 Rajesh Kumar is a practicing Advocate of the Patna Civil Court and nearly a dozen cases are pending between the parties not only at Patna but also at Gaya, most of which have been filed with the sole intention of unnecessarily harassing the opposite party. It is also alleged by him that the aim and object of the Family Court are different from the ordinary courts of law and the purpose of the same is to dispose of all pending litigations between the husband and wife and the Additional Principal Judge has accordingly acted in the matter and his actions cannot give rise to any apprehension in the mind of any litigant. It is further submitted by learned counsel that the opposite party has no objection if both the maintenance case and the matrimonial case are together transferred to the Court of Principal Judge, which stand was also taken by the opposite party during the hearing of the transfer petition before the Principal Judge. In his reply, learned counsel for the petitioner submits that the existence of Section 10(3) does not entitle the Family Court to adopt any procedure which is contrary to the established procedure, and further it cannot, acting under the said provision, pass orders behind the back of the parties as he has done in his order dated 3.7.2008. I have considered the rival submissions of the parties. It is true that the order sheet dated 3.7.2008 does contain a direction in different ink and handwriting directing the petitioner to be personally present in Court and accept the notice of 8 Matrimonial Case No. 130/2008 but the nature of such an order does not by itself lead to any conclusion of bias with respect to the Court. Merely because the said order has been added subsequent to the main part of the order does not lead to the conclusion of any mala fide action on the part of the Court. It is evident that on the next date while noting the fact that the petitioner had not personally presented herself in Court, no coercive action was taken by Court against her rather another opportunity was provided to her to appear in Court personally and accept notice of the Matrimonial Case No. 130/2008. Thus, the hue and cry being raised by the petitioner on the ground of the addition in the order sheet does not have any force as the same has not been used so as to pass any adverse order against her behind her back. So far as the direction to hear both the maintenance matter and the matrimonial case for restitution of conjugal rights is concerned, this Court does not find any illegality or irregularity in the same. The very purpose of the creation of the Family Court was to ensure that all disputes relating to family matters are heard by the same Court so that a comprehensive view at the matter is taken by the Court. It is in such circumstances that the same Court had been conferred with the powers both under the Civil Procedure Code as also under the Code of Criminal Procedure in relation to Section 125 Cr.P.C. matters. It is thus, evident that the object of creation of the Family Court was to ensure that all such 9 litigations within the cognizance of the Family Court are, in fact, heard together or side by side by the same Court and it cannot thus be held that the direction of the Additional Principal Judge to hear the maintenance matter and the matrimonial case together was unusual or contrary to the established procedure rather it was expected of him to have done that, so that the entire matters were before him and he could arrive at a proper conclusion. The same, of course, does not mean that a common order has to be passed in the matrimonial case and in the maintenance matter under Section 125 Cr.P.C. as they belong to separate jurisdictions, civil and criminal, but hearing both matters side by side is definitely what was intended by the Parliament when the Family Court was given the powers to consider both. Thus, such action of the Additional Principal Judge cannot be held to create any reasonable apprehension in the mind of any litigant as to the bias or mala fide approach of the Family Court. So far as the reliance on the decisions of the Supreme Court is concerned, the judgment in G.X. Francis case (supra) has no relevance at all for the consideration of the present matter as the same related to the ability of the Court to decide a matter in a surcharged social and communal situation and not with respect to any bias at all, as has been alleged in the present matter. Similarly, the reliance on Manak Lal’s case (supra) is also of no avail as in the said case one of the members of the Tribunal had appeared in a criminal proceeding against the person who was 10 arrayed before it and in the said circumstances, it was held that there would be reasonable apprehension of bias attributable to the said member of the Tribunal. The same is not the position here; rather it appears that the main grievance of the petitioner was with respect to the direction to hear both the maintenance matter and matrimonial case side by side and not specifically against the Addl. Principal Judge which is evident also from the stand taken before the learned Principal Judge, Family Court where the petitioner has opposed the hearing of both the matter together which led the Principal Judge to observe in his order that the main intention is to some how linger the disposal of the matrimonial case filed by the opposite party for restitution of conjugal rights and to get an order of maintenance by hook and crook and even by leveling frivolous allegations against the Court. This Court is in full agreement with the said observations of the learned Principal Judge. This Court also takes note of the fact that in his order dated 28.8.2008 the learned Additional Principal Judge has recorded that the petitioner is sister of one Rajesh Kumar, Advocate who had tried to influence the Court and when the court had not succumbed to his pressure the petitioner has made false and frivolous allegation against the court by filing a transfer petition. It was in such circumstances that the Additional Principal Judge has directed his office to write a letter to the Principal Judge, Family Court to recall the case from his Court in 11 the interest of justice. On a consideration of the entire facts and circumstances, this Court does not find any merit in the present application. To permit a transfer in the facts and circumstances of the case, would only amount to encouraging the litigants to make false allegations against the Court without any basis simply because an order is passed by it which is not to their liking. The application is accordingly dismissed. S. Pandey ( Ramesh Kumar Datta, J.)