SHEO KUMAR SINGH,J. - (1.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged two contradictory provisions i.e. Rule 36 of the Uttar Pradesh Family Courts Rules, 1995, and Rule 58 of the Uttar Pradesh Family Courts (Court) Rules, 2006, which are as follows:- Rule 36 (The Uttar Pradesh Family Courts Rules, 1995) Superintendence of High Court. - Unless there is any Rule to the contrary, a Family Court shall function under the Superintendence of the High Court. Rule 58 ( the Uttar Pradesh Family Courts (Court) Rules, 2006 - Every Principal Judge, and Judge of the Court shall be under administrative and disciplinary control of the District Judge and overall control of the High Court.
(2.) The petitioner, as submitted in the writ petition, is an Association of Judicial Officers and the Secretary has been authorised by the Association to file the present writ petition on its behalf seeking the relief for its Members, who are Judicial Officers in the District Courts.
(3.) With a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith, the Parliament enacted an Act called "The Family Courts Act, 1984 (Act No.66 of 1984) in which Section 4 provides the method of appointment of the Judges and jurisdiction of the Court as follows:- 4. Appointment of Judges. - (1) The State Government may, with the concurrence of the High Court appoint one or more persons to be the Judge or Judges, of a Family Court. (2) When a Family Court consists of more than one Judge - a. each of the Judges may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force; b. the State Government may, with the concurrence of the High Court, appoint any of the Judges to be the Principal Judge and any other Judge to be the Additional Principal Judge; c. the Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof; d. the Additional Principal Judge may exercise the powers of the Principal Judge in the event of any vacancy in the office of the Principal Judge or when the Principal Judge is unable to discharge his functions owing to absence, illness or any other cause. (3) A person shall not be qualified for appointment as a Judge unless he - a. has for at least seven years held a Judicial office in India or the office of a member of a tribunal or any post under the Union or a State requiring special knowledge of law; or b. has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or c. Possesses such other qualification as the Central Government may. with the concurrence of the Chief Justice of India, prescribe. (4) In selecting persons for appointment as Judges - a. every endeavour shall be made to ensure that persons committed to the need to protect and preserve that institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counseling are selected; and b. preference shall be given to women. (5) No person shall be appointed as or hold the office of, a Judge of a Family Court after he has attained the age of sixty-two years. (6) No salary or honorarium and other allowances payable to, and the other terms and conditions of service of, a Judge shall be such as the State Government may, in consultation with the High Court, prescribe. 7. Jurisdiction. - (1) Subject to the other provisions of this Act, a Family Court shall - a. have and exercise all the jurisdiction exercisable by any district Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and b. be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be. such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. Explanation- The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely: a. a suit or proceeding between the parties to a marriage for decree of a nullity marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; b. a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; c. a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; d. a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; e. a suit or proceeding for a declaration as to the legitimacy of any person; f. a suit or proceeding for maintenance; g. a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act a Family Court shall also have and exercise; a. the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and b. such other jurisdiction as may be conferred on it by any other enactment. 8. Exclusion of jurisdiction and pending proceedings. -Where a Family Court has been established for any area: a. no district Court or any subordinate Civil Court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section; b. no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the C9de of Criminal Procedure, 1973 (2 of 1974); c. every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974)- (i) which is pending immediately before the establishment or such Family Court before district Court or subordinate Court referred to in that subsection or, as the case may be, before any Magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act has come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established; ;