The new judge on the block is always newsworthy. "What is he like?" we ask each other. "Good” is received with relief; outwardly, it means that she/he hears, does not speak more than the lawyers and does not interrupt our train of thought when we are already under pressure to make our case.

But most importantly, the judge must have an open mind, a keenness to adjudicate and weigh a well-crafted judicious balance.

We often do not find these qualities in the judicial hierarchy that presents itself to us as one multi-storeyed institutional structure. The inter-storey relationships should be kept within the building and when they are not, the entire building appears to be eroding.

An instance of this problem was seen when the Delhi High Court recently censured a family court judge for one of his orders.

We had several run-ins with each other and enjoyed the sparring (at least I did). Admittedly, he was bold and (perhaps too) imaginative. I had to, on more than one occasion, go to the High Court to rectify several of his somewhat extravagant interpretations of a statute.  

Notwithstanding his untrammeled intellectual flights, he was excellent at balancing equities.

To cite an example, I was arguing in a child custody case for a mother that the father would take the children for expensive holidays that she could not afford and the children would thus view their mother as the weaker parent. The judge ordered that the father would bear expenses for an identical class and quality of the holiday with the mother.

It is a good goal to prevent process from becoming punishment. This judge was trying to cut to the nub of the matter on facts and then see how to achieve a just result.

To cite another example, both husband and wife had filed for divorce. They were on the same page on not wanting to be in a marriage: yet they resist the case of the other side.

This is how this judge dealt with it: he concluded that judicial time would be wasted by a trial limited to the issue of “whose fault is it anyway” and called it divorce by mutual consent since neither wanted to be in the marriage. He thus granted divorce to both and ordered that the interim financial order would continue till the decree and that the divorce was not a bar to her filing separate maintenance proceedings.

The Delhi High Court remanded the matter for trial, holding that both wanting divorce cannot be called consent because there was an absence of mutuality on the terms of exit.

He had similarly tried to cut to the chase in two cases between the same parties that were appealed before the High Court in the judgement referred to above. One, a divorce filed by the wife and another, a custody plea filed by the husband.

The family court ruling shows that the judge was empathetic to the human predicament of a couple litigating a 6-year marriage for 7 years.

He noted that the husband seemed to have weaponised the litigation. He found that the husband had even prevented the wife from relocating abroad with the children, even if to earn a better living given that he was paying only ₹10,000 per month.

Such coercive conduct is a common problem suffered mostly by wives burdened with oppressive costs of living and litigation and yet it cannot form part of legal pleadings. But there is a valuable judicial tool of noting “demeanour” while passing an order. This, the judge did.

The Family Courts Act does envisage this. Section 10(3) allows the court to develop its own procedure to “arrive at a settlement or at the truth of the facts alleged by one party and denied by the other.”

The judge did just that. He asked the husband the reason for resisting the divorce. The husband said he still loved the wife. The judge found that unbelievable given his litigation conduct and that he had filed other cases against her. On further probing by the judge, the husband agreed to the divorce if he got full custody of the children. And that was the nub of it. It was really about custody and there seemed reluctance about child support and alimony payments.

On the other hand, the judge (who in fact closed the wife's right to evidence for separate reasons) also found that the wife had not been able to prove her case of fault to justify the grant of divorce. Since it is he who had closed her evidence, it is indeed a problematic.

But here is another noteworthy point: the Act does not envisage a detailed trial. Section 15 mandates that the judge can record the “substance” of oral testimony and make it part of the record.

So, the judge resolved as follows:

As to divorce petition filed by the wife, even though the parties were married under the Special Marriage Act (SMA), he took an innovative road by contrasting the nature of the marriage to that under the Hindu Marriage Act (HMA).

The former being secular in nature, he says, cannot be a sacrament: though he uses the word “holy” and thus can have a lower threshold of proof of matrimonial fault to allow relatively easier exit.

The High Court had rejected this argument in the Abdullah matter finding that the two statutes (HMA and SMA) were pari materia. But the family court does not see that, because obviously it was not brought to its attention.

The judge saw from the litigation conduct of the parties that there is no going back and proceeded to see cruelty as a continuing act where husband has weaponised the legal system to enable his behaviour of coercive control. The issue of systemic cruelty was tangentially referred to by the Supreme Court in the case of Rakesh Raman v. Kavita (2023).

The egregious error is, of course, the judge’s reliance on Section 28A of the Marriage Amendment Bill, which never became law. Indeed, the High Court was rightly infuriated. It is all very well to talk of an imaginative, bold judge, but litigation costs to rectify blatant errors are indeed a real concern.

But my issue is with the manner in which the High Court expressed its displeasure. It is one thing to correct an error; it is another to record a public reprimand.

Interestingly, in paragraph 40 of the judgment, the High Court itself acknowledges the Supreme Court’s consistent advice that appellate courts should ordinarily refrain from making personal remarks against judicial officers. Yet, it proceeds to hold that the conduct here merited precisely that. It goes further and lists other instances where the judge is said to have overstepped in the past. This too is problematic because those other cases did not contain a reprimand. After all, we don’t know the facts and circumstances of the other cases. A disagreement by an appellate court is surely not an indicator of the merit of the judge, but simply a healthy friction necessary for evolving a jurisprudence.

The public reprimand thus is indeed troubling.

Trial court judges, already functioning within tight administrative and hierarchical structures, may well become wary of taking bold or innovative approaches even where the statute permits it. The fear of a recorded public rebuke and its possible bearing on future postings is real.

The judge has since moved the Supreme Court by way of an SLP challenging the adverse remarks. That, too, tells its own story.

There are judges and then there are judges. All of them make errors and the higher court is there to rectify them. Even the apex court looks to rectifying its errors - being human and all that.

So the question is: does this judge deserve the public castigation?  

I would answer: no judge does deserves that and certainly not this one. To trim and refine a ruling in the mill of justice is a process all the way till it attains finality in an appeal. But to record a reprimand for posterity is, with due respect, overzealous.

The direction that he be sent to training could have been handled at an internal supervisory administrative level. It is not seemly that the High Court make public its irritation with a judge in the lower rung of a hierarchy. if we scold our juniors, we do so privately and certainly don’t record the scolding for posterity. 

Moreover, I need to repeat what I said earlier: a public scolding has a chilling effect on an already burdened and increasingly bureaucratised trial court system.

As the base of the judicial pyramid, trial courts need to be robust for the top to be efficient and the upper echelons need to be sensitive to the problems of the base.

Malavika Rajkotia has been an advocate in the Indian Courts for over 35 years and has developed a practice on divorce and property law.

The author acknowledges advocate Sajal Arora for suggestions that informed this piece.