OM PARKASH SHARMA Vs. SHRIMATI NIRMAL SHARMA

JUDGEMENT

(1.) THIS is a petition under section 24, Civil Procedure Code, for the transfer of the suit filed by Om Parkash Shargaa, petitioner, for restitution of conjugal rights against his wife. According to the allegations contained in this application the parties were married to each other some time in November, 1959, and they lived happily together till September 1960 when Smt. Nirmal Sharma the wife left for Jullundur where her parents reside. Her father is a Lecturer in Punjabi in the D. A. V. College, Jullundur. In spite of the petitioner's repeated efforts respondent has not come back. In November 1961 an application under section 488, Criminal Procedure Code, was filed by the wife against the husband for her maintenance and the maintenance of their child. In this connection it is averred that she deliberately made false allegations against her husband's character. This application was dismissed in default on 7th August, 1962. In December 1961 the wife had also instituted a suit against the husband for the return of her isthmian . This suit is stated to be still pending in the Court of the Senior Sub -Judge, Jullundur. On 10th March, 1962, the petitioner instituted the present application for restitution of conjugal rights against the respondent. It is averred that to begin with the Sub Judge has been insisting on a settlement of the matter between the parties and as this was a legitimate effort the petitioner complied with all the directions which the Court gave from time to time though after a certain time the petitioner felt that the learned Sub Judge was unnecessarily prolonging the proceedings. On 9th May, 1962, the learned Sub -Judge is stated to have desired the respondent's father and the petitioner's brother who are both colleagues on the staff of the D. A. V. College, Jullundur, to meet at his house and accordingly invited them to tea. At the meeting there was no progress towards reconciliation but the learned Sub -Judge again called the petitioner to his house on 20th May, 1962. On his arrival there the petitioner found the learned Sub -Judge absent. On the following day the parties informed the Court that there was no chance of compromise but the learned Sub -Judge nevertheless insisted on 12th June, 1962, and again on 14th June, 1962, that the petitioner should go to the house of his father -in -law for the purpose of creating conditions for settlement. The petitioner pointed out that the wife must express her regret for the serious allegations made by her in the maintenance proceedings but the learned Sub -Judge did not exert this influence on the wife in that direction on the contrary he insisted that the petitioner should carry out his order without any condition. On 12th June, 1962, the husband offered to hand over to the respondent her jewellery and clothes which were in his possession but she declined to accept the same saying that she would do it in the Court where her suit was pending. The petitioner in compliance with the orders of the learned Sub -Judge went to his father -in -law's house to stay there but he was insulted and humiliated by the members of the family including his father -in -law. The petitioner informed the learned Sub Judge about the treatment meted out to him but the Sub -Judge insisted on the petitioner going to his father -in -law's place once again. Stress is laid on the assertion that the learned Sub -Judge has all the time been putting pressure on the petitioner only without saying anything to the wife and even without reprimanding her for the ill -treatment meted out to the petitioner. Various dates were given in the proceedings till 10th August, 1962, and all the time the learned Sub Judge continued to suggest to the petitioner ways and means of settling up the differences with his wife. On 10th August, 1962, the learned Sub -Judge again insisted on the petitioner going to his father in -law's place and threatened to pass a heavy order of ad interim maintenance and costs of the proceedings in case of refusal.

(2.) AFTER narrating these circumstances the petitioner has submitted that he has come to the conclusion that he cannot expect justice from the Court of the learned Sub -Judge because he has been deliberately siding with the respondent. The petitioner thereupon is stated to have requested the learned Sub Judge hot to proceed with the hearing of the case so as to enable him to move the learned District Judge for the transfer of this case; he is also stated to have pointed out that the petitioner wanted to summon the learned Sub -Judge as a witness to the various incidents for the purpose of showing that while the petitioner was always ready and willing to settle his differences with the respondent she and her parents were always disinclined to do so. This application came up for hearing on 13th August, 1962, when the learned Sub -Judge made certain observations suggesting that it was perhaps petitioner's counsel who had initiated the idea of the learned Sub -Judge being cited as a witness. On 17th August, 1962, the petitioner moved the learned District Judge under section 24 of the Code of Civil Procedure for the transfer of the case and on 18th August, 1962, further proceedings in the trial Court were stayed and the order of stay was communicated to the trial Court. In spite of the stay order the learned Sub -Judge is stated to have taken up the application and dismissed the same on 20th August 1962. This according to the petitioner betrays the prejudiced mind of the learned Sub Judge against the petitioner. Reference has also been made to the attitude of the learned Sub -Judge in accommodating the counsel for the respondent and refusing accommodation to the petitioner's counsel on 13th August, and 28th August, 1962. On 21st September, 1962. the learned District Judge, Jullundur, rejected the petitioner's application for the transfer of the case. It is in these circumstances that the present petition has been presented for the transfer of the proceedings. On 14th January, 1963, the Motion Judge issued notice on this application and also stayed further proceedings. A copy of the petition was sent to the trial Judge for comments.

(3.) ON the merits the learned counsel for the petitioner has concentrated on the contention that the learned Sub -Judge has, in his zeal to bring about a compromise, been putting pressure on the petitioner and insisting on him to submit to the unreasonable demands of the respondent and her relations. This, according to the learned counsel, has created a reasonable apprehension in the petitioner's mind that he would not get fair deal and impartial justice from the Court of this learned Sub -Judge. He has also submitted that the comments of the learned Sub -Judge are not in accordance with the whole truth and has submitted that I should hold that the learned Sub -Judge had actually invited the relations of the parties to tea at his house and had also suggested that the petitioner should go to his father -in -law's house; his denial according to the learned counsel is untrue.