Ankit Upadhyay @APPELLANT@Hash District Judge, Family Court

This Transfer Application under sec.24 CPC has been filed for transfer of Civil Case No.28/2015 {Smt Pritipriya v. Ankit Upadhyaya} pending in the

court of Family Court, Bhilwara to any other court.

Briefly stated, marriage between the parties was solemnized on 19.11.2013 as per Hindu rites and customs. The non-petitioner wife preferred a

petition under sec.13 of the Hindu Marriage Act on 21.02.2015 on the ground of cruelty by petitioner towards the non-petitioner. After service of

summons, the petitioner appeared and filed reply to the petition. The non-petitioner filed an application under sec.24 of the Act for grant of interim

maintenance during pendency of petition under sec.13 of the Act. A reply to said application was submitted by the petitioner and controverted the

averments made in the application.

During pendency of the application under sec.24 of the Act, the non-petitioner moved an application on 14.12.2015 praying therein that record of

statement of Bank account of petitioner be called from ICICI Bank, Nimbaheda and the service record of the petitioner be also called from the

company where he is in service i.e. J.K. Cement. A reply to said application was filed by the petitioner, stating that the application is not maintainable

and therefore, the same be dismissed.

The matter was posted for arguments on the application under sec.24 of the Act on 01.03.2017. On said date, arguments on the application were

heard, order was reserved and next date given in the matter for pronouncement of the order was 02.03.2017. On said date, petitioner and so also his

amicus curiae were not present but the non-petitioner filed an application, no copy whereof was furnished to petitioner or his amicus curiae. However,

on the very day i.e. 02.03.2017 decided said application and passed directions in this regard.

When petitioner came to know of aforesaid order, he preferred a writ petition being SBCWP No.3645/2017, however, the same was withdrawn with

a view to challenge the order impugned by preferring a review or order recalling application. The petitioner thereafter preferred a recalling application

before the trial court but the trial court dismissed the same vide order dated 19.04.2017.

It was also contended that the non-petitioner had also instituted a petition under sec.125 CrPC before same court, which is pending adjudication and

the same officer, vide its order dated 05.01.2017 passed similar directions. The petitioner challenged said order before Hon’ble High Court,

wherein the High Court pleased to stay further proceedings in said petition.

The order passed by the non-petitioner No.1 dated 19.04.2017 was challenged before Hon’ble High Court by filing writ petition being SBCWP

No.4845/2017, wherein Hon’ble High Court vide order dated 15.05.2017 observed as follows: “Of course, the manner in which the application

is dealt with by the

Family Court, can not be appreciatedâ€​. This observation of the High Court is sufficient example of the manner of prejudicial trial held to the detriment

of petitioner.

It was also contended that the petitioner has also preferred a petition under sec.13 of the Hindu Marriage Act against nonpetitioner No.2, however,

the non-petitioner No.1 has directed the non-petitioner No.2 not to file any reply in that petition. Thus, the manner of proceeding being carried out by

the non-petitioner No.1 are alien to system of law prevailing in India.

It was also contended that in view of apparent undue favour shown to one party and bias towards him, the petitioner has no hope of justice from

present Presiding Officer. On the basis of averments mentioned above, transfer of the petition is sought.

Notices were issued to respondents and report of Judge, Family Court, Bhilwara was also called. The respondents are represented through counsel.

Heard learned counsel for the parties.

In the present case, the respondent No.1 preferred an application under sec.13 of the Act of 1955 seeking divorce on the ground of cruelty. During

pendency of the petition, the respondent preferred an application under Section 24 of the Act of 1955, claiming maintenance pendente lite. The

application is being contested by the petitioner by filing a reply thereto. On 1.3.17, the arguments of the parties on the application were heard and the

matter was posted for decision on 2.3.17. On 2.3.17, the respondent preferred an application for summoning the pay certificate of the petitioner from

his employer M/s. J.K.Cement, Nimbahera. After due consideration, the court below while directing the parties to furnish the information regarding

their employment, salary, statements of their bank account as also the income tax returns of the preceding three years, further directed the

petitioner’s employer M/s. J.K. Cement Ltd., Nimbahera to produce his salary certificate along with PAN .

The petitioner preferred an application for recalling the order dated 2.3.17 passed by the court below stating that the effective order passed by the

court as aforesaid in his absence is not unjustified. It was contended that the application under Section 24 of the Act of 1955 must be decided on the

basis of the documents produced on record by the parties and thus, ignoring this aspect of the matter, the court has erred in summoning the documents

from petitioner’s employer. After due consideration, the application was rejected by the court below observing that the court is well within its

jurisdiction in summoning the documents for just decision of the application preferred under Section 24 of the Act of 1955. The court also observed

that it was responsibility of the petitioner herein to produce necessary documents on record regarding his financial status and thus, he cannot be said to

be aggrieved by the order passed to ascertain the correct status of his financial position and accordingly, the application was rejected.

It was contended that the copy of the application preferred on behalf of the respondent was not supplied to the petitioner and thus, the order passed by

the court below in absence of the petitioner, is absolutely unjustified. It was also argued that the respondent had already filed an application for

summoning the documents, which was contested by the petitioner by filing a reply thereto, however, instead of deciding said application, the order

passed by the court below on the fresh application filed by the respondent is gross abuse of the process of the law. It was further argued that the

court below was not justified in directing to issue Tehreer to S.P., Chittorgarh for collecting information sought by the court and to produce the same

on record.

On perusal of the order-sheets submitted before this Court, it is relevant to mention that on 02.03.2017, the petitioner or his next friend Kailsh

Upadhyay were not present but petitioner’s other next friend Shivlal Sharma was present. Therefore, contention of the petitioner that the order

was passed ex parte, is factually incorrect. The petitioner can not be permitted to withhold information regarding his income and therefore, taking into

consideration the facts & circumstances of the case, the direction issued by the Family Court, Bhilwara for summoning requisite information including

Salary certificate of petitioner from his employer can not be said to be without jurisdiction. The Family Court is empowered to requisition information,

which in its opinion is necessary to assist the court to deal with the matter in hand effectually. The Family Court has passed identical order in

proceedings under sec.125 CrPC, the legality whereof was challenged by the petitioner by way of SBCWP No.3645/2017, which was dismissed by

this Court vide order dated 04.04.2017 as withdrawn. It is not case of the petitioner that Shivlal Sharma, who was present before the court on

02.03.2017, was not authorized to appear on his behalf. Thus, it can not be said that the order passed by the court below was ex parte.

Even without there being an application, a Family Court is empowered to receive as evidence any report, statement, documents, information or matter

that may, in its opinion assist the court to deal with the matter effectually. By virtue of provisions of sub-section (3) of sec.9 of the Act, the Family

Court is empowered to lay down its own procedure, with a view to arrive at settlement in respect of the subject matter of the suit or proceedings or a

truth of the facts alleged by one party and denied by the other and thus, the order impugned passed by the Family Court in summoning the information

requisite for just decision of the application under Section 24 of the Act of 1955, cannot be said to be without jurisdiction.

Learned Judge, Family Court, Bhilwara (respondent No.1) has submitted his report along with relevant copies of ordersheets. A perusal of order-sheet

Annx.2 specifically makes it clear that on 02.03.2017, petitioner Ankit Upadhyaya and his next friend Kailash Upadhyaya were not present but his

another next friend Mr Shivlal Sharma was present. This means that the petitioner has made wrong statement in his pleadings. Along with the report

submitted by respondent No.1, an order sheet dated 05.06.2017 (Annx.5) is also enclosed, wherein it is mentioned:

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gSA mudh eaâ€kk gS fd ihBklhu vf/kdkjh ;sudsu izdkjs.k nokc esa vkdj bl izdj.k dk QSlyk ugha djsA vukxZy vkjksi ihBklhu vf/kdkjh ij foi{kh }kjk

fofHkUu izdkj ds izkFkZuk i=ksa ds ek/;e ls yxk;s tkrs jgs gSA yxkrkj U;k;ky; esa rukoiw.kZ ekgkSy iSnk djrs gS] ;fn og Lo;a foi{kh ds firk gS vkSj

isâ€​ks ls vf/koDrk gS rks bldk ;g vFkZ ugha gS fd og viuh euethZ ls U;k;ky; dks dk;Z djus gsrq fooâ€​k djsA**

From above observation, it is clear that the advocate Mr Kailash Upadhyaya, petitioner’s next friend, is father of petitioner Ankit Upadhyaya and

with ulterior motives and to create pressure on mind of the Presiding Officer, he has made these allegations. The conduct of the petitioner can not be

said to be appropriate, for a party who approaches court for an equitable remedy.

The petitioner has also questioned legality of order dated 02.03.2017 as well as order passed on application by petitioner for recalling order dated

02.03.2017, by way of separate writ petition being SBCWP No.4845/2017, which has also been dismissed by this Court vide order dated 15.05.2017.

So far as allegation of bias is concerned, in P.D. Dinakaran v. Hon’ble Judges Inquiry Committee {(2011) 8 SCC 380: AIR 2011 SC 3711},

Hon’ble Apex Court held that to disqualify a person as a Judge, the test of real likelihood of bias i.e. real danger is to be applied, considering

whether a fair minded and informed person, apprised of all the facts, would have a serious apprehension of bias. In other words, the courts should give

effect to the maxim that “justice must not only be done but be seen to be doneâ€, by examining not actual bias but real possibility of bias, based on

facts and material.

In the present case, there does not appear any material which supports actual bias or any possibility of bias, on the facts and material. The Transfer

Application has no merit and deserves to be dismissed and the same is, accordingly, dismissed.