What Is The Special Role That A Family Judge Is Obliged To Discharge As Distinct From General Role Of An Adjudicator? Delhi High Court Answers

The Delhi High Court has enumerated various principles highlighting the special role that a Family Judge is obligated to discharge as distinct from the general role of an adjudicator.

In the 54-page judgment, Justice Yashwant Varma also touched upon the essential qualities of a judge or adjudicator and the tests as propounded by the Indian judiciary in relation to an apprehension of bias.

While the Court noted that the family jurisprudence has progressed over time, it said that the Family Judge is no longer viewed as one who is to act in the capacity of a mere "fault finder".

"Family disputes are no longer liable to be viewed as purely adversarial. Our Courts have over time and as society has evolved over the ages throwing up new challenges along the way, unequivocally recognised the multi-faceted role that a Family Judge is called upon to perform today including that of facilitator, counsellor, mediator, taking a pro-active role in exploring and striving to find common ground, kindle the hope of rapprochement and guide parties towards finding closure to disputes. Marital disputes thus require to be resolved with the Family Judge adopting a more immersive resolution process," the Court observed.

The Court was of the view that the Family Judge is obliged to "don a more collaborative robe and not approach the lis as just another legal dispute that arrives before a court for resolution."

It observed that the unique function which the Family Judge discharges is required to be approached with empathy bearing in mind that the problem placed before it is not merely another legal conflict but one that deals with the complete breakdown of a family impacting not just the immediate parties to the dispute but various others who are seared by the pall of discord that follows.

"It thus places the Family Judge under the added responsibility of approaching parties and the issues that arise for determination with compassion, guiding parties through the entire process in the hope that a just solution would avoid an irretrievable breakdown of the family itself," the Court observed.

The Court also observed that the Judge representing the face of the court system must thus appear to be just, even handed, independent and neutral.

Further observing that neutrality is one of the fundamental attributes of the justice system, the Court said that the Judge is required to consider and weigh each utterance, every word forming part of the decision ensuring that it embodies and conveys a sense of fairness and neutrality having informed the decision-making process.

"The decision of the Court represents the voice of the court itself charged with discharging the divine function of rendering judgment. The observations forming part of the judgment must not therefore give the impression of being based on personal assumptions, biases or preconceived notions. Similarly, the observations as contained in the decision must not have the potential to sully the person or character of a litigant. The language of the judgment must necessarily be tempered by restraint and moderation. A judgment of a court of law cannot become a blistering diatribe against a party or its cause," the Court said.

It added "The voice of a Judge must be the voice of prudence, judiciousness and sobriety. A Judge must consequently eschew from entering strident observations which may tend to impinge upon the primordial requirements of impartiality and fairness. While it may be open for Courts to express a doubt about the bona fides of a particular litigant or the motives underlying an action, that too would not warrant virulent observations being made. In any case, a judgment should never transgress the well-established and inherent limitation of not being viewed as an attack on the personal character of a party before the court."

"Similarly, while an action may be misconceived, ill-advised or even wholly unsustainable in law, that would also not justify the making of scathing remarks which may convey the impression that the judge let extraneous considerations cloud the overarching and fundamental requirement of being impartial and unprejudiced. It is when the language of the decision tends to convey a departure of the decision maker across the Rubicon of remaining dispassionate, fair and even handed that the question of a reasonable apprehension or a real danger of bias arises."

On the aspect of apprehension of bias, the Court was of the view that such apprehension can neither be founded on imagination nor can it rest merely on the fact that an adverse decision was rendered.

It said that the apprehension would have to be tested from the viewpoint of an ordinary person and whether the material would legitimately give rise to a doubt of whether the judge or the adjudicator would have the ability to decide impartially and fairly.

The Court was dealing with a plea seeking transfer of proceedings pending before the Court of the Principal Judge, Family Court Saket. The parties were stated to have married as per Buddhist customs on 04 December 2018 in Taipei, Taiwan. A male child was born from that union on 13 April 2019.

The parties stayed at Dehradun between December 2018 to March 2019. The petitioner further disclosed that she also stayed at Chandigarh during her pregnancy. The relations between the parties soured immediately or soon after the child was born.

It was the case of the petitioner that that a perusal of the orders of 11 August 2021, 28 October 2021 and 09 November 2021 passed by the Family Judge would establish that the Judge was proceeding in a highly prejudiced and biased manner against the petitioner.

It was submitted that not only were recitals in the orders passed inaccurate, various statements were also attributed to have been made by the petitioner erroneously.

It was also argued that the Family Judge clearly proceeded as if the petitioner was disentitled to either assert or seek preservation of her rights and claims upon the assets of the respondent and thus failing to appreciate the true intent and ambit of the provisions contained in the Domestic Violence Act. It was argued that all this was mot only indicative of a prejudicial mind set of the Family Judge but evidence of the court having formed a negative opinion with regard to the bona fides of the petitioner.

The Court was of the view that mere fact that the Family Judge chose to observe that courts are not powerless and do not need to seek concession from parties or counsels must be viewed in light of the prayer of the petitioner seeking rectification of the record.

"The Family Judge undoubtedly is the master of the record. Recitals as appearing in judicial orders are not liable to be opened or reviewed based on a bald allegation of parties. However, the Court cannot lose sight of the admitted fact that the remedy of rectification is duly recognised and one which a party is entitled to invoke if circumstances so warrant," it said.

Perusing the order dated 28nd October 2021 wherein it was argued by the petitioner that the Family Judge incorrectly recorded that it was the petitioner who was describing the child borne out of wedlock as being illegitimate, the Court opined that the said observation would appear to be a mere factual inaccuracy since the issue of illegitimacy appears to have been raised in the context of the father disavowing the marriage between the parties itself.

"The respondent being the putative father had not at any stage doubted the paternity of the child. The petitioner may have raised the issue of illegitimacy as being the necessary fallout and consequence of the father denying the factum of marriage itself. However, this in itself would not constitute sufficient ground to sustain an apprehension of bias," it said further.

The Court further said that it did not agree with the submissions addressed in the backdrop of a perceived failure on the part of the Family Judge to enforce production of documents, calling upon the respondent to file replies, the allegation of forgery committed by court staff.

"These allegations are wholly specious and merit no further consideration. Regard must be had to the fact that it is for the Family Judge to control proceedings in each matter as per its discretion and sound judgment. It is for the Presiding Officer to prioritise issues in any litigation. Similarly, the allegation of forgery was laid against the court staff. It was not the case of the petitioner that the Family Judge was a party to the alleged act," the Court said.

It added "Likewise, while much stress was laid on the fact that the petitioner's miscellaneous applications were not being taken up, that allegation also fails to move this Court. It must be borne in mind that the proceedings were being conducted while the pandemic was raging. Courts and staff attached to it were working under tremendous pressures. Our court system was adopting to technologies seldom used or deployed before. Viewed in that light it is evident that the allegations levelled on this score are also without merit."

Furthermore, the Court then noted the observations made by the Family Judge wherein it said that not only had the petitioner chosen to claim everything under the sky and that the application in essence was only a "blackmailing tactic".

The Court said that it was here that the Family Judge had lost sight of the imperative necessity of judicial decisions being compliant with the standards of sobriety and restraint which are expected.

"The expressions used to describe the claim of the petitioner can be legitimately recognised as giving rise to a reasonable doubt arising on whether the Family Judge would be able to maintain the standards of neutrality as necessitated. The vitriolic and caustic remarks entered would give rise to a reasonable apprehension of whether the Family Judge would be in a position to dispassionately evaluate the claims of the petitioner that have or may be raised in the future," the Court said.

It added that the language employed by the Family Judge was neither necessary nor imperative for ruling on the cause which was raised and that they would however imbed a reasonable apprehension and doubt with respect to the neutrality of the particular Family Judge.

"That reasonable apprehension would continue to fester and sully the sanctity of proceedings that may ensue before the Family Court even in the future. It is pertinent to note that the foundation of this petition is not a stray oral observation that may have been attributed to the Family Judge but observations and expression of a definitive opinion appearing in a judicial order. Those remarks did not stand restricted to the merits of the prayers made but cast serious aspersions on the character of the petitioner itself," the Court said.

"The virulent expressions entered would cast a legitimate and reasonable doubt of whether the Family Judge could be still viewed as being able to impartially and dispassionately decide the issues that may fall for its consideration. The credibility of the decision-making process has been sullied by the scathing remarks that came to be made. Any reasonable person when faced with the facts of the present case and the observations made would validly harbour a plausible doubt with respect to the ability of the Family Judge being able to fairly assess the validity of the competing claims of parties. In any case, when tested on the principles noticed above, the petitioner could reasonably apprehend the ability of the Family Judge to undertake a fair and impartial trial of her case."

On an overall conspectus of the aforenoted facts and the conclusions, the Court was of the view that the prayer for transfer should be allowed.

"The Transfer Petition is accordingly allowed. Let the records of G.P. No. 16/2021 pending before the Principal Judge, Family Court, South East, Saket Courts, New Delhi be placed before another Judge of the Family Court. The Principal Family Judge is requested to take appropriate steps in this regard and in light of the directions issued hereinabove," the Court ordered.

Case Title: KINRI DHIR v. VEER SINGH

Citation: 2022 LiveLaw (Del) 339

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