The petitioner sought the transfer on the ground that the father, who had been granted temporary visitation rights, allegedly sexually abused the child during visitation.
The Delhi High Court has dismissed a transfer petition filed by Sarina, seeking to move Case No. GP 88/2019 (Koshlinder Sharma v. Sarina) from the Family Court, South-West Dwarka. She had accused the presiding judge of bias and procedural lapses.
Justice Dinesh Kumar Sharma, sitting as a single judge, strongly condemned the petition, labeling the allegations as “purely scandalous” and an attempt to undermine the Court’s authority.
The Bench underscored that the petitioner had the right to challenge any adverse order through proper judicial avenues rather than making such accusations to justify a transfer request. “There is no substance in this petition, and therefore, it is dismissed with a cost of ₹5,000 to be deposited with the Delhi High Court Legal Services Committee within four weeks,” the Court directed.
“Learned counsel for the petitioner is seeking transfer on the ground that the temporary visitation right was granted by the learned Family Judge, however, when the father/respondent met the child, he sexually abused the child, and when this fact was brought to the knowledge of the learned Family Court, he orally refused to pass any order,” the Court noted.
Family Court’s Decision
On November 11, 2024, a Delhi court dismissed an application filed under Section 24 of the Code of Civil Procedure, 1908 (CPC), seeking the transfer of a child custody case from the court of Sh. Anil Kumar, Family Court Judge, South-West, Dwarka, Delhi, to another court. The court determined that the allegations made by the applicant were unsubstantiated and that the plea lacked both merit and legal justification.
Case Background
The application was filed in an ongoing custody dispute (GP No. 88/2019, Koshlinder Sharma vs. Sarina) under Sections 7 and 25 of the Guardianship & Wards Act. The Family Court had granted the father (non-applicant) visitation rights twice a month in the court’s Children’s Room, along with video call access.
The applicant alleged that the non-applicant had sexually assaulted the minor child during a court-supervised visitation, leading to the registration of FIR No. 540/2022 at PS Dwarka South under the Protection of Children from Sexual Offences (POCSO) Act, 2012. However, the non-applicant was later acquitted of the charges.
Additionally, the applicant claimed that during visitation sessions, the non-applicant misbehaved with the child, including throwing objects at him, causing distress and discomfort. She further alleged that the Family Court Judge exhibited bias by purportedly advising the non-applicant to file an application under Section 12 of the Guardianship & Wards Act for interim custody following his acquittal.
She also expressed concerns over delays in the Family Court’s decision on her application dated October 4, 2023, which sought a report from Nirmal Chhaya Complex, Hari Nagar, Delhi. This application was linked to a complaint filed against her by the non-applicant, alleging neglect of the child’s well-being.
Family Court’s Observations and Ruling
After considering arguments from both parties, the court rejected the application, asserting that dissatisfaction with judicial orders does not justify a transfer. The court made the following key observations:
- Jurisdictional Authority: Under Section 24 of the CPC, the power to transfer cases lies with the District Court. Since the Family Court exercises the jurisdiction of a District Court under the Family Courts Act, 1984, it is fully competent to handle such matters.
- Judicial Discretion in Family Courts: Section 10(3) of the Family Courts Act grants the Family Court the authority to adopt its own procedures to ensure a fair hearing. Given that child custody proceedings are not strictly adversarial, the presiding judge is well-positioned to oversee them.
- No Evidence of Bias: The court held that even if the Family Court Judge had advised the non-applicant to file for interim custody, it did not indicate bias or partiality. Providing procedural guidance in family disputes is a common judicial practice and does not amount to unfairness.
- Procedural Delays Not a Justification for Transfer: The court found no wrongful intent behind the delay in ruling on the October 4, 2023, application and emphasized that procedural delays alone are insufficient grounds for transferring a case.
- No Prior Challenge to Judicial Orders: The applicant had never challenged the court’s decisions on visitation rights or the non-applicant’s acquittal in the POCSO case, indicating that the transfer request was an attempt to bypass the established legal process.
- Oral Directions Within Judicial Authority: The applicant claimed that the Family Court Judge had issued oral instructions for visitation meetings to be held in the courtroom. The court clarified that such directives fall within the judge’s authority and do not suggest bias or improper conduct.
