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The Delhi High Court has held that judicial bias in a case need not be proven as existing in fact but only needs to be tested by the ordinary person and evaluated based on the test of reasonable apprehension.

The bench of Justice Yashwant Varma while dealing with a transfer petition filed by a woman seeking transfer of proceeding from the court of Principal Judge of Family court, Saket, observed that the test of judicial bias has to be whether a reasonable person would have thought that the adjudicator was predisposed to decide the matter in a particular way or not.

“…bias is not an issue which is required to be proved as existing in fact. What is important to consider is whether the facts could give rise to an apprehension of bias. That apprehension can neither be founded on imagination nor can it rest merely on the fact that an adverse decision was rendered. 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,” Court said.

The backdrop of the case was that the parties had got married in Taiwan on December 4, 2018, as per Buddhist customs and a male child was born from the union on April 13, 2019. The relations between the parties soured immediately or soon after the child was born and a number of cases came to be filed before the family court as well as Delhi High Court related to the matrimonial discord and for the custody of the child.

The petitioner (wife) informed the court about three orders of the Family Judge, Saket Court i.e.the order dated August 2, 2021, related to the family court permitting her to travel to Dehradun, October 28, 2021 order related to the visitation rights of the father and another order dated November 9, 2021, passed in an application moved under Section 18 read with Section 23 and 26 of the Protection of Women from Domestic Violence Act (PWDV).

The petitioner alleged that a private meeting has taken place between the Judge and the respondents (husband) on November 15, 2021.

It was claimed that in the first order, the family judge had expressed his displeasure over the submission of the counsel for the petitioner that its order was passed on their concession. “Courts in India are not so powerless that they will require a concession from a petitioner and that the word concession used was highly contemptuous”, the judge had stated.

In the second order, the judge had disposed of the application permitting the respondent to visit the child daily and to collect him between 6 pm and 8 pm.

However, in the third order, the judge made several fierce remarks saying that the application under the PWDV Act was not just a tactic to blackmail the respondent but also to extort money from the respondent and his family members as the petitioner had chosen to claim everything “under the sky”.

The High Court found no fault with the first two orders of the family judge as well as the alleged meeting, but it said that it is in the order of November 9 that the judge appears to have lost sight of the imperative necessity of judicial decisions being compliant with the standards of sobriety and restraint.

“The expressions used to describe the claim of the petitioner can be legitimately recognized 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” said the High Court.

The bench added, "the language employed by the Family Judge was neither necessary nor imperative for ruling on the cause which was raised. It however embeds a reasonable apprehension and doubts with respect to the neutrality of the particular Family Judge."

Court further held that reasonable apprehension would continue to fester and sully the sanctity of proceedings that may ensue before the Family Court even in the future as the ‘credibility of the decision-making process has been sullied by the scathing remarks that came to be made’.

Court was of the opinion that any reasonable person when faced with the facts of the present case and the observations made would validly harbor 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.

Court, therefore, ordered the transfer of the case. However, it added that the decision should not be construed as an expression of the ability or the competence of the family judge or endorsement of the allegation that the judge is biased.

In addition to this, Justice Varma, in the judgment willfully stated the issue of the role of the family judge as well as the mantle of being a judge/ adjudicator.

He observed that a family judge can no longer be viewed as one who is to act in the capacity of a mere “fault-finder” but he is called upon to perform the role of facilitator, counselor, a mediator who takes 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.

“The Family Judge is thus today obliged to don a more collaborative robe and not approach the lis as just another legal dispute that arrives before a court for resolution. This 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,” Justice Varma stated.

On the issue of the mantle of being the judge/adjudicator, Justice Varma said that parties approach the court based on immense trust and faith envisioned in the system and the judge, representing the face of the court system, must thus appear to be just, even-handed, independent and neutral.

He added that ‘neutrality’ is one of the fundamental attributes of the justice system which requires the judge to consider and weigh each and 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.

Justice Varma concluded that 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,” Justice Verma observed.

Case Title: Kinri Dhir v. Veer Singh