Allegation Of Judicial Bias Not To Be Based On Conjectures & Mystic Maybes: Kerala High Court Dismisses Transfer Plea With Costs

While adjudicating upon a transfer petition, the Kerala High Court recently urged litigants to exercise prudence while alleging bias on part of the judiciary.  

Justice CS Dias ruled that allegations of bias against a judge should be based on reasonable and justifiable grounds and not on conjectures.

"The enunciation of law in precedents makes it a must that the allegation of bias shall not be based on conjectures and mystic maybes. The onus is on the person who alleges bias to substantiate that his apprehensions are reasonable, genuine and justifiable."

While dismissing the petition that alleged bias on the part of the presiding officer of a family court, the Court imposed costs of ₹15,000 on the petitioner for failure to substantiate his allegations and added:

"An allegation of bias against a Presiding Officer is a matter of grave concern and a serious issue. If the allegation is true, it calls for immediate transfer of the case and with consequences to follow. If it is not, it has to be sternly dealt with an iron hand, otherwise all and sundry will start casting aspersions against the Presiding Officers, without any foundation or basis, which will shatter the confidence of the Presiding Officer and rattle the justice delivery system. To accept an allegation of bias, without substantial material puts the credibility and the independence of the judiciary at stake."

The Court issued the order on a petition that sought to transfer proceedings, on the allegation of bias against the presiding officer of the Family Court.

Advocate N.J Mathews representing the petitioner alleged that the presiding officer had pressurised the petitioner, who is the husband in a divorce proceeding, to pay arrears of maintenance to his wife and daughter.

He claimed that on opposing this direction, the presiding officer threatened the counsel by saying "if you are sticking onto your earlier stand even now, I will show you."

Senior Advocate S Sreekumar, appearing for the respondent-wife and daughter, submitted that it has been over two and half years since the trial has commenced.

He stated that the presiding officer is now proceeding with the trial on day to day basis following the special list system and the case flow management rules, as directed by the High Court in Shiju Joy. A v. Nisha.

It was further pointed out that despite a judgment passed by the Court in 2016 directing the petitioner to pay interim maintenance to the respondents at the rate of ₹25,000 per month, not a single rupee has been paid till date.

The Court observed that it is well settled that sincere efforts made by the presiding judge cannot be interpreted as a coercive step to come to some terms.

Further, it noted that while dealing with the transfer of cases under Section 406 of the Code of Criminal Procedure, on the ground of bias, the Supreme Court in Maneka Sanjay Gandhi & another v. Rani Jethmalani had held the following:

"The central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer."

Since there was non-compliance with a judgment ordering the petitioner to pay interim maintenance and the allegation of bias was raised at the fag end of the trial, the Court found it could not draw any reasonable apprehension of bias.

Therefore, it dismissed the petition with a cost of Rs.15,000 payable by the petitioner before the Family Court within a period of two weeks, to be paid to the respondents.