‘Mere apprehension of bias’ sufficient to exercise the power of transfer: Delhi High Court

The principle that ‘mere apprehension of bias’ and not ‘actual bias’ may be sufficient to exercise the power of transfer was upheld by the High Court of Delhi through the learned bench led by HONOURABLE MR. JUSTICE DINESH KUMAR SHARMA in the case of ADITI BAKHT v. ABHISHEK AHUJA (CM(M) Case under HMA Case No. 47 of 2022 & Miscellaneous Application Case No.2627 of 2022) and connected appeals

FACTS OF THE CASE: Brief facts of the case are as follows; The Court dealt with a plea filed by a mother challenging the order of a family court in Saket, which restrained her from taking her minor child out of Delhi. A subsequent order to the same effect was also challenged. The petition said that while the proceedings were pending before the High Court, the family judge decided the guardianship petition and gave visitation rights to the father. He was allowed to see the child on weekdays and Saturdays and long weekends and holidays for several days. It was also stated that the family court judge shared his personal mobile number with the parties during the proceedings and that the father met the judge in his chambers. This, it was stated, created apprehension in the mind of the petitioner’s mother.

JUDGEMENT: After reviewing the submissions of both sides, the judge that judges have to remind themselves time and again that their conduct is closely observed and noted by litigants Court stated that the judge’s behaviour in sharing his mobile number with both parties and admittedly seeing one of the parties in the chamber has unnecessarily given a cause of the reasonable perception of bias.  The High Court ruled that the judge should not have provided his phone number to the parties, adding that it is a well-established principle that justice must be done and must also appear to have been done. The order read that the judge’s conduct during the court procedures should have been above board. The Court said that though mere adverse orders are not sufficient to invoke the power of transfer, allegations of bias need to be evaluated on the premise of a reasonable apprehension of bias. “It is a settled proposition that ‘mere apprehension of bias’ and not ‘actual bias’ may be sufficient to exercise the power of transfer,” The Court said. The Court also noted that judges should not act in any manner which gives rise to even slightest of doubt in the minds of the litigants and lawyers.” The Court, therefore, set aside the orders of the family court and restored the guardianship petition. The Principal Judge of the family court was directed to decide the same. The father has been given visitation rights for three hours on Wednesday and Friday, eight hours on weekends, and four hours on the child’s birthday. The principal judge, Family Court was requested to decide the said guardianship petition as expeditiously as possible, preferably within four weeks. “Learned Principal Judge, Family Court may also take the assistance of the Child Counselor and interact with the child before deciding the visitation rights”, the order read

Judgement reviewed by – Abhinav Paul Mathew

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