New judge is biased. can i get it transferred.
Amit
(Querist) 03 July 2013
This query is : Resolved
Hi
My Section 13 case is under proceeding in a city where there is only one family court.
My case is ordered by HC to be expedited and to be disposed with in 6 months, out of which 4 are done. So I have court dates every week.
There is this new judge since last three weeks who is making things very difficult for me. She has denied me looking at my file during the proceeding and asking me to come back on another day and check file only thru file inspection form. secondly, she has denied taking my application in the court, she would simply throw it back to me. I wrote the application that its my fundamental right to have a look at the file. also few another ones.
She also would take my evidence but not exhibit or mark them. Also she is delaying my applications which were critical to be decided earlier but she is just sitting on them.
My question to the expert lawyer is if I can get this case transferred. and if so, what should be my ground.
Thanks
Vishal
+91.9717040486
Devajyoti Barman
(Expert) 03 July 2013
Though some of the allegations you made are rightly done by the court, you can always ask for transfer of the case by applying before the high court.
However to succeed this you need more concrete instances of biasness than this strict conduct of the case.
Raj Kumar Makkad
(Expert) 03 July 2013
The Court is not at fault when it directs you to move the application seeking inspection of file on some other day then the hearing of your case.
You have not mentioned which type of applications have been moved by you which according to you are very critical?
If any document is not liable to be exhibited, it can very well be denied by the concerned court.
It seems that court is trying to dispose of the case within the stipulated time of 6 months as directed by HC and it requires your cooperation in this regard.
There are no valid ground to tranfer the case to some other court.
Amit
(Querist) 03 July 2013
Thanks for the quick turnaround. Both experts have said the same thing . My applications were regarding sending a DVD that I submitted to forensic lab because my wife has denied that its her voice and my application was about her voice match through a trustable agency which only court can reach. I also said that if the forensic lab report doesnt come in time, I will not be able to bring the fact of the case and it will be highly unjustified but she simply delay deciding the application.
I dont understand what is to be done. Infact, I have met a few lawyers locally but no one is able to give a good suggetion on this one.
ajay sethi
(Expert) 03 July 2013
yours is an expedited case wherein court has directed case to be disposed of in 6 months . if family court grants your application forsenic report wont come for long time .
court is justified in asking you to make application if you want inspection
Amit
(Querist) 03 July 2013
If court is justified to denying my application for forensic, then can i submit a report from pvt forensic lab?
In my understanding a pvt lab has quoted me 15 days for evaluation of my electronic evidence.
Raj Kumar Makkad
(Expert) 03 July 2013
When your wife is admitting her voice in CD then there is no need to send it to lab.
Raj Kumar Makkad
(Expert) 03 July 2013
Yes. You can very well produce it by producing the lab incharge along-with his report.
ajay sethi
(Expert) 03 July 2013
yes you can submit report of pvt forsenic lab and prove the same
Amit
(Querist) 03 July 2013
Thanks to all. however my wife is denying that its her voice in CD. So I would go for a private forensic lab which would agree to send lab incharge to my court.
Raj Kumar Makkad
(Expert) 03 July 2013
Most welcome for your appreciation. Do as already advised to you.
Amit
(Querist) 03 July 2013
Sir,
Deepest apology for thinking slow. With the private forensic Lab, I can only prove the genunity of the CD . however ultimate goal is to prove that the voice in CD is of my wife.
My wife would never give me sample voice because she knows its her voice so her voice should be recorded in the presence of the court and court should order my wife to give the voice sample, whether its my hired private lab or government. Pls advice if my assumption is correct so in this case if family court do not allow me to take my wife voice sample, there is no way I can prove its my wife voice on the CD. what should I do in that case?
Raj Kumar Makkad
(Expert) 03 July 2013
In the given facts which you have slowly disclosed now, do require the sample of voice of your wife and it can be done only if your wife is ready as per direction of the court. Insist to accept your application or pray for its dismissal so that you may got against its revision by way of a writ before high court.
prabhakar singh
(Expert) 03 July 2013
Since your wife has denied her voice to be in CD to go examined, her voice specimen is the need to be recorded before the court which she would have to give when applied for by you unless she wants the court to draw an adverse inference against her in this regard.
Amit
(Querist) 03 July 2013
Thank you Sir ( Mr Raj Kumar and Prabhakar Singh). I have understood that at the end, I always have a right to get her voice sample by the order of the court whether its order by the trial court or even if I have to go to HC.
With this intent, I am going to file an application for early disposition of my application in the trial court so in case judge dismiss my application, I have fair time to go to HC in writ and hope to get it allowed.
Looks like there is a ray of hope at the end of the tunnel. Thank you very much again Sir.
Amit
(Querist) 03 July 2013
and also if the family court judge dismiss my application to take my wife sample on disputed CD, then I perhaps get a valid ground to get my case transferred to another court. Would this be correct assumption?
Thanks.
Raj Kumar Makkad
(Expert) 03 July 2013
Most welcome from your side and you have properly understood the things now.
prabhakar singh
(Expert) 03 July 2013
Tome dismissal of your application to get your wife's specimen sound recording would simply afford to go to HIGH COURT but it alone would not afford you a ground of transfer.
What i said that if PO orders your wife to give her sound specimen but she does not obey,the PO shall draw an adverse inference against her that as it was her sound in CD in dispute she was hesitant to give her sound specimen.
If PO does not draw this inference you would get it as an ground of appeal in upper courts.That is all what i meant.
Amit
(Querist) 04 July 2013
Thanks Prabhakar Sir.
I am afraid that after having spoken to few reputed lawyers in gurgaon, I have failed to understand what should be my strategy to get this case transferred because I get a very strong feeling that this new judge is going to dismiss my petetion, no matter what.
Can I get this info from any experts. You have been modest enough to share free info, but I will be happy to pay the consultation charges for the detailed discussion over phone.
Thanks and Regards.
R.K Nanda
(Expert) 04 July 2013
nothing to add.
Guest
(Expert) 04 July 2013
To avoid prefer Recusal application if you feel the judge is biased. By recusal the case is automatically transferred to another court for adjudication.
Amit
(Querist) 05 July 2013
Thanks Yougesh. Its a total new thing for me. I will study it. Thanks again.
Raj Kumar Makkad
(Expert) 06 July 2013
I differ with the opinion of Nayyar in this regard. Generally such applications are not accepted.
prabhakar singh
(Expert) 06 July 2013
It is good to know word RECUSAL but it is too necessary to know when can it be used
with reference to transfer of a case.
About two years before i have explored it.Interested people may search that.
The case being discussed here is matrimonial.
Can it be alleged and proved that judge is related to the side of female spouse which is encouraging him and would encourage him further to act as biased against male spouse?
Facts stated here does not reveal so.
RECUSAL attracts two things:a)relation with one party,(even remotest would do)OR
b)any interest in the subject matter(even remotest would do)
V R SHROFF
(Expert) 06 July 2013
If voice sample application is rejected, u hv chances -appeal.
In case Experts demand it for comparison, court will allow.
It seems u unnecessary doubt Judge:
remedy in higher court is open.
Amit
(Querist) 06 July 2013
Thanks again Sir Raj Makkad and Sir Prabhakar. Its a good explanation and resembles my own feeling from contents about recusal. Its truly important to know what can work for one in litigations but more importan t to know what may not.
Appreciate it.
Btw.. Sir V Shroff - My doubts on the judge intentions are not unnecessary. I am dealing with my litigations for last 5 years and have developed a sense to know right and wrong. Next friday I am almost sure that the new judge is going to reject 4 out of 5 of my miscllaneous applications , mostly involving forensic help for my to prove my evidence in the lieu that my evidence stage is over and the case is time bound. and This is where, I have to find out a solution that while I appeal to HC for my applications on forensic help, I have to get it transferred based on some grounds that I have not been able to collate as yet. Thank you for your suggetion.
Guest
(Expert) 06 July 2013
A Division Bench of the Bombay High Court, consisting of Justices S.A. Bobde and R.G. Ketkar, on Tuesday recused itself from hearing public interest litigation petitions in the Adarsh Housing Society case.
As soon as senior counsel Amit Desai started his pleadings on the intervention petition, filed by the former Maharashtra Chief Minister Ashok Chavan on Monday seeking quashing of the case against him, Justice Bobde said: “Not before us.”
Reason unclear
The Bench had been hearing for the past months petitions filed by social activists and others for monitoring the Adarsh scam probe and prosecution of the accused for money laundering and other charges. It is not clear why it has withdrawn itself from hearing the matter.
Under recusal application once you specify that the judge is biased, the judge who has been presiding the matter cannot look into the same and has to recuse him/herself from the case and thus the matter is transferred to another court for disposal. Its probably new thing which has not been utilized by Lawyers at large.
prabhakar singh
(Expert) 06 July 2013
It appears Mr.Yougesh V. Nayyar is not aware
of how it goes in lower courts.
Once you file an application before the judge hearing your case alleging him biased
he would report the matter to District Judge
praying his release from the case which District judge may or may not accept.
JUDGES at HIGH Or SUPREME COURT ENJOY LIBERTY OF THE KIND MAGISTRATES AND LOWER COURT JUDGES DO NOT.
And there has been cases in India where no recusal happened even when interest in the subject matter was known to judge and it was at higher level of judiciary.i am deliberately not mentioning the name.
prabhakar singh
(Expert) 06 July 2013
The instance you have cited to be one in which reason, in my guess, would have been of approach made privately to the bench.
Even in such a circumstance at gross root level procedure explained would be followed.
Raj Kumar Makkad
(Expert) 06 July 2013
I refused to agree with Nayyar only because he seems unaware of the application of the word recusal in lower courts where the present matter is pending.
Devajyoti Barman
(Expert) 06 July 2013
You better challenge the order you being aggrieved of. Raising dispute of neutrality of the judge is of no use.
Guest
(Expert) 06 July 2013
With due respect to you all seniors here, I have done it before lower courts as well. Thats why I am aware about recusal procedure.
V R SHROFF
(Expert) 06 July 2013
Amit, I can't understand why 5 Applications??
Judge MUST ALLOW EXAMINATION OF VOICE / OR DOC/ HANDWRITING, AND GET OPINION, AND ALLOW CHIEF EXAMINATION, CROSS EXAM , AND ADMIT THAT EVIDENCE .
It can be done at any later stage also, in the interest of justice.
If judge do not allow, Appeal against that order of Rejection.
Do not bow down to prejudiced Judge.
Amit
(Querist) 07 July 2013
Sir V Shroff..
Yes there are multiple electronic evidences ( audio and video), and to some the respondant has clearly denied and to others, she said that she has never seen or heard so she can get pass related questions thru the Cross.
So I have put in multiple apps including for checking the genuinty of evidence, matching her voice, allow to play in court etc. This time I moved an app to request disposal of all pending apps in timely manner as it has affected the respondent cross badly. I am hoping that the Judge would allow some of those applications which is due on next friday.
I will never bow down to prejudiced judge, the easier way would have been to get it transferred but if thats too challenging then I will go in appeal for every unjustified order to HC as required. Thanks for boosting my confidence.
prabhakar singh
(Expert) 07 July 2013
Will dear Mr. Yougesh V. Nayyar be pleased to write the procedure with reference of law laid with respect to recusal he followed successfully in lower court.
Guest
(Expert) 07 July 2013
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. Applicable statutes or canons of ethics may provide standards for recusal in a given proceeding or matter. Providing that the judge or presiding officer must be free from disabling conflicts of interest makes the fairness of the proceedings less likely to be questioned.
Once it is found or noticed that the Presiding officer is biased, an application for recusal needs to be preferred by the concerned court. The moment the application is preferred, the concerned Presiding officer cease to have the power to pass any orders except recusing him/herself from the matter and transferring the same to other court. IN the event the judge shall refer the matter to the District Judge who shall pass Orders of Transfer.
Guest
(Expert) 07 July 2013
Practicing lawyers in general seem to be quite sympathetic to the 'plight' of the judges who've been 'wrestling' with the ethical issues involved in these recent recusal cases in India. I wonder if this is because of a professional 'blind spot' that they, together with the judges involved in these cases, might be collectively suffering from? Notice that several practicing lawyers seem to think that if the judge discloses his potential conflict to the 'parties' in open court, and the lawyers (speaking on behalf of the 'parties' presumably, but perhaps speaking in their own capacities as well) state that they have no objection, no other concerns are raised, and the judge can go ahead with the hearing of the case. To those who are not lawyers, and to those of us who don't practice in courts and are hence not part of this cozy - and much glorified - 'bar-bench' dynamic, this begs the larger question of the public interest that may be compromised when judges proceed to so hear cases after getting the approval of the lawyers in the case.
prabhakar singh
(Expert) 07 July 2013
Have you told any thing else than that of mine as procedure to be followed for transfer(recusal you call)at lower level.
I did not requested you to write any essay on recusal as there are plenty available on net from authors around the globe written so beautifully that i can not write.
I am categorical that a PO of lower court can not transfer a file from his court to another court on his own as that right vests in only DISTRICT JUDGE.
For a Family Court Judge there would be some more hardship, if he is only one.
Guest
(Expert) 07 July 2013
There is no other procedure except preferring an application for recusal. With due respect Mr. Singh, I wasn't writing an essay nor do I have to speak it out to you. Its coz the same probably has not been used vastly by Lawyers and not known that recusal as well is available apart from getting matters transferred, I wrote it.
prabhakar singh
(Expert) 07 July 2013
RECUSE me, please!” may well be the newest catchphrase for judges in India. Recusal, in legal parlance, refers to a judge abstaining from participation in an official action such as a legal proceeding. And, from the looks of it, the rise in the incidence of judges withdrawing from high-profile cases has become the focal point of a fracas between one group of the legal fraternity and another. Lawyers have been taking on judges and the latter have also been hitting back.
Legal experts say that recusal comes into play when a judge has a close relationship or friendship with a party whose case is pending before her/him. Under these circumstances, the lawyer puts in a plea asking a judge to be removed from the case as he or she may be biased.
Of late, a series of events has brought the term “recusal” into the limelight. Recently, Justice Arijit Pasayat of the Supreme Court, who was heading a bench hearing a case relating to the Bangalore-Mysore corridor project — filed by the Nandi Infrastructure Corridor Enterprises against former Prime Minister, H.D. Deve Gowda — withdrew himself from the case following an application by Gowda’s lawyer, senior Supreme Court advocate Shanti Bhushan. The reason: Gowda had been rapped by Judge Pasayat during an earlier hearing and he thought the judge may be “subconsciously biased”.
In January, in the kidnapping case against Punjab inspector general of police Sumedh Singh Saini and three other police officials, the mother of one of those missing alleged a nexus between the judge and the accused. According to the litigant, the judge and the accused hailed from Chandigarh, were classmates in a masters course in history at Punjab University, and “were presumably good friends”. She even attached a copy of the result sheet with her petition.
In another well known instance of recusal, lawyer and former Union law minister Ram Jethmalani (representing the Ansal brothers in the Uphaar cinema fire case) got Justice B.N. Agrawal who was part of a team hearing the case, to withdraw from the proceedings. Jethmalani’s reason was that he had already written articles in the press critical of Agrawal, which could impact the hearing. And, in a curious instance last year, Justice Roshan Dalvi of the Bombay High Court withdrew from the ongoing case between Reliance Industries Ltd (RIL) and National Thermal Power Corporation (NTPC). RIL had applied to the Bombay High Court seeking the appointment of a new judge on the basis that Justice Dalvi held four shares in NTPC.
All these developments have had some judges and judges’ collectives hot under the collar. Some of the recent instances seem to have misused the feature of recusal, they claim.
“It is the judge’s prerogative to withdraw from a case,” says an advocate and a member of the Supreme Court Advocates-on-Record Association that recently held a meeting in Delhi on the sudden spurt in the number of applications for recusal. “It can be brought to the judge’s notice that there may be a possibility of bias. But judges have been pushed and prodded by certain high-profile lawyers representing powerful politicians to withdraw. It questions the neutrality and freedom of the judiciary. And these are some very senior and experienced judges we’re talking of. It’s a ploy to remove a judge who may not favour your case, for whatever reasons.”
P.N. Parekh, president, Supreme Court Bar Association, spells out the circumstances, by and large, where a judge’s recusal from a case kicks in. “1) the judge holds shares in a company whose case he’s hearing. 2) S/he happens to be related to one of the lawyers in the case. 3) The judge is found guilty of misbehaviour in court (which is very rare). 4) Lawyers presenting a case feel there is reasonable apprehension of subconscious bias by the judge,” he says.
It’s the last one that falls in a grey area and is open to manipulation, Parekh and other legal experts claim.
However, there is no written clause or provision in the annals of Indian law enumerating the grounds on which recusal can take place, explains P.C. Agarwal, advocate, Supreme Court. In that sense, it is an informal process, although it does involve some paperwork whereby a lawyer who does not want a judge to hear a case puts in an application with the court, spelling out his reasons for the judge to be removed from the case.
“But a judge can refuse to recuse too. Withdrawing from a case is entirely the judge’s discretion, and if a judge feels that he has been unfairly asked to withdraw, he too can file a counter application in the same court,” says Agarwal.
Former chief justice of Delhi High Court Rajinder Sachar admits that recusals are not always completely aboveboard, but at the same time he plays down the number of such cases. â€Yes, we have had cases of judges having to recuse (often being pushed by lawyers), but these are few and far between,” he stresses. “But if there have been cases of lawyers digging up dirt on a judge to ascertain if indeed he will be biased, then that is very unfortunate. And yes, recusal is open to misuse sometimes,” he says.
Senior advocate Shanti Bhushan insists that lawyers are just doing their job here. “It is the duty of the counsel to bring it to the notice of the judge that he or she may be biased in a case. If a litigant feels there is reasonable apprehension of that, then he can ask for a case to be transferred. It is standard legal practice,” he emphasises.
Though many judges are miffed by the recusal applications pouring in, noted cyber affairs lawyer Pawan Duggal stresses that the practice is actually “one more method of empowering the litigant. Its use and misuse lies entirely in the hands of the lawyer,” he says.
prabhakar singh
(Expert) 07 July 2013
Is it okay to believe i am aware of recusal.
prabhakar singh
(Expert) 07 July 2013
You blame the judge and he releases but what if he refuses?
Once a party moved an application in the court that PO is relative of so and so and opposite party has approached that relative
to influence the judge,District Judged asked for a report from PO and Po out right straight way refused that"i am not aware of any such relation as alleged nor have ever met them "
RESULTANTLY TRANSFER WAS REFUSED BY THE DISTRICT JUDGE.
Devajyoti Barman
(Expert) 07 July 2013
Recusal is hardly followed in lower courts. Only high court judges as per my experience are sensitive to this practice.
Amit
(Querist) 07 July 2013
Sir,
Its clear from the facts stated above that recusal is not an option for me.
While reading CPC, i found out that in Part V ( Miscllaneous) in one of the book by C.K.Takwani I have, point no 22 ( Transfer Allowed) states that The following have been held to be sufficient grounds for transfer:
(1) Reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending. 2) to avoid multiplicity of proceedings or conflicting decisions
3) where to Judge is interested in one party or prejudiced against the other
etc etc.
From my situations I feel that point 1 and 3 are relevant to my case. In the practice, are the matrimonial cases transferred on the these grounds by high court?
and mere mention of the grounds is enough or substantial evidence to these are required?
Thanks.
Guest
(Expert) 07 July 2013
1. This query has fortunately or unfortunately received various long and short comments from our experts. In any profession, views of each will differ. Finally, it's upto the taker taking the views useful to him.
2. I feel that Mr.Amit has been pre-judging the judge's mind by simply observing her mannerisms and nothing more. 3. I think he is not conversant with the Court's procedures and wants everything very handy then and there. He (for the past four days from his query time), forgotten the responsibility of a judge in following the Statute Book. Mr.Amit is not properly appraising the judge with his urgency of lab report vis-a-vis HC's direction.
4. In our country, where number of judges are shortfall, question of transfer of cases has become rare and many such applications are often get rejected on one pretext or the other unless the adverse remarks against a judicial officer are proved beyond doubt and the integrity of him/her vis-a-vis discharge of judicial functions are proved to be wrong in the case. The transfer application normally prejudice any other new judicial officer also when the transfer of case is ordered by the Chief Judge.
5. Usually, due to heavy workload, some judges by their nature don't have patience to deal with party-in-persons because of the latter's want of legal knowledge. Normally, advocates assist the Courts. But party-in-persons expect them to be assisted by the Court. So judges hate them and get prejudiced quickly. So it is better for Mr.Amit to engage a lawyer and do follow procedures properly in the Court Hall in the way the Court expects from a litigant.
Amit
(Querist) 08 July 2013
Thanks Gurukarayana Roa Sir,
I appreciate you have taken time to summarize this long chain of messages. It seems to be first instinct that I am doubting on judge because of mannerism. I can not prove solid evidence regarding this but I am sure the Judge is biased. Everyone in the court has shared the same feeling that this Judge is gender biased. There are many examples of her biased behavior towards me but I get your point. Transfer to civil cases is not entertained usually unless its a woman asking for it. My wife had got this very same case transferred via Supreme court to her state on the ground of mere inconvenience as the distance between our state is about 700 KMs. Now I am actually dealing with prejudice in their court and can not do anything about it except going in appeal towards a decision but things such as not keeping my relevant documents on record by the judge is of no importance in this aspect. Its kind of disappointing but I guess I am used to of it. I am a man.
Amit
(Querist) 08 July 2013
Sir Gurukarayana,
Inspite of the fact that I genuinely appreciate that you have taken time to guide me, i come back to this site 100 times in a day to check any response. There are many softwares running now in law practice and judiciary to facilitate for information exchange and its because of us software engineers but when we need legal help, its almost impossible to find genuine and expert legal help. Without you saying I agree that its a wrong forum to voice it out, please suggest me one place where I can pay and get all the legal help that I need. if there was anyway to find the right lawyer by me, i wouldnt be here. Pls guide.
My case is on final stage and I have spent 8 years of my life for this justice. I believe I will be helped.
Guest
(Expert) 08 July 2013
Please call my Cell No. (preferably after 6 pm) and tell me where are you from and where is your case being held now. I can suggest suitably and I will introduce a lawyers' firm handling all over India cases having local branches in various places (Northern and Southern India).
