High Court of KeralaSingle Judge2023-11-15This Transfer Petition is devoid of any merit o...

Tr.P.(C).No.691/2023

Case / Petition Number:TR.P(C) No. 691 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2023-11-15
Court Decision / Holding: This Transfer Petition is devoid of any merit or substance and the same would therefore stand dismissed.
Final Disposition: This Transfer Petition is devoid of any merit or substance and the same would therefore stand dismissed.

Parties to the Case

Appellants / Petitioners

V. Bhaskaran SreeKrishna Bhavan
Maniamma W/o. V. Bhaskaran

Respondents

Greeshma Prasad
Prasad
Surabala
B. Krishnakumar

Legal Representation & Advocates

Counsels for Petitioners

• P. Haridas
• Biju Hariharan
• Shijimol
• M. Mathew
• P.C. Shijin
• Rajasree T.R.
• Roshin Mariam Jacob

Counsels for Respondents

• Raajesh S. Subrahmanian
• V.R. Rajesh
• R. Rajalekshmi

Case Synopsis & Summary

Transfer Petition (Civil) No.691 of 2023, heard by the Kerala High Court at Ernakulam, arises from OP(G&W) No.275/2020 and OP(Div) No.272/2020 filed in the Family Court, Ettumanoor. The petitioners, V. Bhaskaran SreeKrishna Bhavan and Maniamma (parents of the 4th respondent husband), sought transfer of the G&W petition to the Family Court, Pala or another suitable Family Court on grounds that the Ettumanoor judge is prejudiced against their counsel and that their advocate is publicly humiliated. They allege that interlocutory applications in the original petitions were not considered or were disposed in a manner prejudicial to them, and that, when counsel pressed for hearing, the judge shouted at counsel. The 4th respondent's side disputed the move, arguing that three judicial officers have dealt with the matter and that no orders have been passed by the present officer against the petitioners. They relied on a decision that bias must be substantiated and that transfers on mere allegations should not be entertained. The High Court examined the authorities on bias and transfer: R. Balakrishna Pillai, Harita Sunil Parab, Abraham Thomas Puthooran, and Roshini Babu. It held that the prejudice alleged is primarily against the petitioners’ counsel, not the judge, and that relief should be sought through lawful remedies, not a transfer. Finding no reasonable, genuine, and justifiable ground for transfer and noting the judge’s impending retirement, the petition was dismissed. The court emphasized that maintaining judicial integrity and avoiding abuse of process require substantiation.

Legal Doctrines & Maxims

Mere apprehension that justice will not be done is not sufficient for transfer; the court must determine whether the apprehension is reasonable, genuine and justifiable.
The apprehension of not getting a fair and impartial enquiry or trial must be reasonable; not imaginary.
The onus is on the party alleging bias to substantiate that the apprehensions are genuine and justifiable.
The Court should ascertain whether the ground for transfer has been substantiated by the litigant.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the Family Court Judge at Ettumanoor is prejudiced against their counsel, who is an artist, and that interlocutory applications in OP(G&W)275/2020 were not considered or were disposed in a manner prejudicial to them, justifying transfer to Family Court, Pala, or another forum. They asserted that the judge shouts at the petitioners’ counsel and that the matter has reached this court after earlier petitions (FC 273/2020 and 508/2023). They relied on precedents to emphasize the necessity of substantiating bias and the impropriety of a transfer absent genuine prejudice against the judge.

Contentions of Respondents

The respondents opposed the transfer, arguing that the case has been considered by three judicial officers with no orders against the present judge, and that prejudice against counsel is not a valid basis for transfer. They relied on established precedent that bias must be substantiated and that the remedy lies in proper, lawful procedures rather than transferring the case. They cited prior orders and urged the court to dismiss the petition.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
R. Balakrishna Pillai v. State of Kerala	(2000) 7 SCC 129	Positive	Cited to establish that mere apprehension of injustice is not enough for transfer; the court must assess whether the apprehension is reasonable, genuine and justifiable.
Harita Sunil Parab v. State of NCT of Delhi and Others	(2018) 6 SCC 358	Positive	Held that a reasonable, not imaginary, apprehension of not getting a fair trial is required for transfer.
Abraham Thomas Puthooran v. Manju Abraham	[2022 (1) KLT 317]	Positive	Division Bench held that the Court must ascertain whether the ground for transfer has been substantiated; the onus lies on the litigant.
Roshini Babu.V.B. v. Anil.K.B.	[2023 (1) KHC 493]	Mentioned Only	Cited to indicate that the burden to prove prejudice against the judge is high; not adopted as controlling principle in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945** **TR.P(C) NO. 691 OF 2023** ## **OP(G&W)No.275/2020 OF FAMILY COURT, ETTUMANOOR** ## **PETITIONERS:** 1 V. BHASKARAN SREEKRISHNA BHAVAN, WEST FORT, KOCHIKKAL, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN – 690101. 2 MANIAMMA W/O. V. BHASKARAN, SREEKRISHNA BHAVAN, WEST FORT, KOCHIKKAL, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN – 690101. BY ADVS. P.HARIDAS BIJU HARIHARAN SHIJIMOL M.MATHEW P.C.SHIJIN RAJASREE T.R. ROSHIN MARIAM JACOB ## **RESPONDENTS:** 1 GREESHMA PRASAD AGED 30 YEARS W/O B.KRISHNAKUMAR, RESIDING AT AJANTHA BHAVAN, MULAKULAM SOUTH P.O, PERUVA, KOTTAYAM DISTRICT., PIN - 686610 2 PRASAD AGED 56 YEARS S/O. SHANKAR, AJANTHA BHAVAN, MULAKULAM SOUTH P.O, PERUVA, KOTTAYAM DISTRICT., PIN - 686610 3 SURABALA AGED 49 YEARS W/O. PRASAD, AJANTHA BHAVAN, MULAKULAM SOUTH P.O, PERUVA, KOTTAYAM DISTRICT., PIN - 686610 ## **TR.P(C) NO. 691 OF 2023** -: 2 :- 4 B.KRISHNAKUMAR AGED 38 YEARS S/O. V. BHASKARAN, SREEKRISHNA BHAVAN, WEST FORT, KOCHIKKAL, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN -690101. NOW RESIDING AT SREERUDRAAPPARTMENT, E2, 2ND FLOOR, NEAR MAMMIYOOR TEMPLE, GURUVAYUR, THRISSUR DISTRICT., PIN - 680101 BY ADVS. RAAJESH S.SUBRAHMANIAN V.R.RAJESH R.RAJALEKSHMI THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR HEARING ON 01.11.2023, THE COURT ON 15.11.2023 PASSED THE FOLLOWING: **C. JAYACHANDRAN, J. -------------------------Tr.P.(C).No.691 of 2023 --------------------------Dated this the 15[th] day of November, 2023** ## **ORDER** **This Transfer Petition is preferred seeking transfer of O.P.(G&W)No.275 of 2020 pending before the Family Court, Ettumanoor to the Family Court, Pala or any other Family Court, on the ground that the Family Court Judge at Ettumanoor is prejudiced against the Counsel for the petitioners and the petitioners. Petitioners are the parents of the 4[th] respondent/husband. The 4[th] respondent is now abroad and hence he is made a respondent in the proceedings. The 1[st] respondent is the wife and the respondents 2 and 3 are her parents. The 1[st] respondent/wife filed O.P.(G&W)No.275 of 2020 before the Family Court, Ettumanoor, to which petition, the petitioners and the 4[th] respondent/husband preferred a counter claim. The 1[st] respondent herein also filed O.P.(Divorce)No.272 of 2020, which again pending before the Family** ## **Tr.P.(C).No.691/2023** -: 2 :- **Court, Ettumanoor. The grievance of the petitioners is that several interlocutory applications preferred by the petitioners herein in the Original Petitions afore-referred are not considered by the Family Court Judge. According to the learned counsel for the petitioners, such applications are either rejected or closed or not considered at all, to the detriment of the petitioners herein. If the matters are not considered and the counsel for the petitioners press for hearing, the Counsel is humiliated by the Judge, who is otherwise prejudiced against the Counsel, since she is an artist, is the allegation raised. It is also alleged in the transfer petition that the Family Court Judge used to shout at the Counsel for the petitioners herein. The matter has reached this Court twice earlier by way of two O.P.(FC)s bearing nos.273/2020 and 508/2023. The former was one** ## **Tr.P.(C).No.691/2023** -: 3 :- **preferred by the 4[th] respondent/husband seeking disposal of two applications pending in the O.P. (G&W) above referred. This aggravated the Judge's prejudice to the petitioners, as also, the 4[th] respondent herein. According to the petitioners, the Judge is highly prejudiced against the petitioners and their Counsel and they do not expect a fair trial at his hands. In such circumstances, a transfer is sought for to the Family Court, Pala or to any other Family Court. If the matter is transferred to Family Court, Pala, the respondents will not be put to any prejudice at all.** **2. Learned counsel for the respondents opposed this application pointing out that the Original Petitions afore-referred were considered by three judicial officers, of which the last judicial** ## **Tr.P.(C).No.691/2023** -: 4 :- **officer is the one against whom serious aspersions and allegations are made. As a matter of fact, no order against the petitioners have been passed by the present officer. A transfer sought for on the ground that the Judge is prejudiced against the Counsel for the petitioners, is not a recognizable ground, besides being far from the truth. Learned counsel relied upon a judgment of a learned Single Judge of this Court in Roshini Babu.V.B. v. Anil.K.B. [2023 (1) KHC 493] to articulate that the responsibility of the petitioners while alleging prejudice or bias against the judicial officer is very high and without discharging the same, no transfer could be allowed.** **3. Having heard the learned counsel appearing on both sides, this Court finds little merit in the instant Transfer Petition. A perusal of the entire** ## **Tr.P.(C).No.691/2023** -: 5 :- **allegations made in this Transfer Petition would reveal that the prejudice alleged is essentially against the Counsel appearing for the petitioners. This Court takes into account the submission of the learned counsel for the respondent that the present officer is the third one, who is handling the Original Petitions afore-referred and that he has not passed any orders against the present petitioners. The allegation is that the interlocutory applications preferred by the petitioners are not being considered. Such a grievance has to be dealt with in accordance with law by taking recourse the remedies available in law; and not by casting aspersions against the Judge and seeking a transfer on that ground.** **4. In R.Balakrishna Pillai v. State of Kerala [(2000)7 SCC 129] the Hon'ble Supreme Court held** ## **Tr.P.(C).No.691/2023** -: 6 :- **that a mere apprehension that justice will not be done in a given case is not sufficient for transfer of a case from one particular court to another. The Court has to find out whether the apprehension is reasonable, genuine and justifiable. The Hon'ble Supreme Court also gave a caution that, if these types of applications are entertained, the entire judicial atmosphere would be polluted with such frivolous petitions for various reasons. Again, in Harita Sunil Parab v. State of NCT of Delhi and others [(2018) 6 SCC 358] the Hon'ble Supreme Court held that the apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable; and not imaginary based on conjectures or surmises. Recently, in Abraham Thomas Puthooran v. Manju Abraham [2022 (1) KLT 317] a Division Bench of this Court held that the Court has to ascertain whether the ground for transfer has been** ## **Tr.P.(C).No.691/2023** -: 7 :- **substantiated by the litigant. Since the transfer of a case on such ground casts aspersions upon integrity and competency of a presiding officer, the onus was held to be on the person who alleges bias to substantiate that his apprehensions are genuine and justifiable.** **5. Applying the above yardsticks, this Court is not satisfied that the petitioners herein have made out a prima facie and a reasonable case, so as to enable them to seek a transfer of the matters pending before the Family Court, Ettumanoor to the Family Court, Pala. This Court is not in a position to find that the allegations are genuine, reasonable and justifiable. This Court also takes into account the submission made by the learned counsel for the respondent that the judicial officer concerned is about to retire within a** ## **Tr.P.(C).No.691/2023** ## -: 8 :- **period of four months. In such circumstances, a transfer on the ground canvassed is likely to tarnish the image of the judicial officer, especially when the allegations against him are not established.** **This Transfer Petition is devoid of any merit or substance and the same would therefore stand dismissed.** **Sd/-** **C. JAYACHANDRAN, JUDGE** ## **skj** ## **APPENDIX OF TR.P(C) 691/2023** ## PETITIONERS' ANNEXURES |Annexure|1|TRUE COPY OF THE PETITION IN OP (G&W) NO.| |---|---|---| |||275/2020 BEFORE THE FAMILY COURT ETTUMANOOR| |||DATED 26.2.2020 FILED BY THE 1ST RESPONDENT| |Annexure|2|TRUE COPY OF THE PETITION IN OP (DIV) NO.| |||272/2020 BEFORE THE FAMILY COURT ETTUMANOOR| |||ON FEBRUARY, 2020 FILED BY THE 1ST PETITIONER| |Annexure|3|TRUE COPY OF THE COUNTER CLAIM IN OP (G&W)| |||NO. 275/2020 BEFORE THE FAMILY COURT| |||ETTUMANOOR DATED 21.7.2020 FILED BY THE| |||PETITIONERS AND 4TH RESPONDENT| |Annexure|4|TRUE COPY OF THE OBJECTION IN OP (G&W) NO.| |||275/2020 BEFORE THE FAMILY COURT ETTUMANOOR| |||DATED 21.07.2020 FILED BY THE 4TH RESPONDENT| |Annexure|5|TRUE COPY OF THE JUDGEMENT OF THIS COURT IN| |||O.P.(FC) NO.273/2020 DATED 07.04.2021| |Annexure|6|TRUE COPY OF THE I.A. NO. 8/2021 IN OP| |||(G&W)NO.275/2020 BEFORE THE FAMILY COURT| |||ETTUMANOOR FILED IN NOVEMBER 2020 BY THE| |||PETITIONERS AND 4TH RESPONDENT| |Annexure|7|TRUE COPY OF THE I.A. NO. 14/2021 IN O.P.| |||(G&W)NO.275/2020 BEFORE THE FAMILY COURT| |||ETTUMANOOR DATED 28.09.2021 FILED BY THE| |||PETITIONERS AND 4TH RESPONDENT| |Annexure|8|TRUE COPY OF THE B-DIARY IN OP(G&W)| |||NO.275/2020 OF THE FAMILY COURT, ETTUMANOOR| |Annexure|9|TRUE COPY OF THE MEMO FILED BY THE 4TH| |||RESPONDENT DATED 18.08.2023 IN OP(G&W)| |||NO.275/2020 OF THE FAMILY COURT, ETTUMANOOR|