JASRAJ CHOPRA J. - (1.) IT is alleged that on 16. 11. 1990, petitioner Radhey Shyam moved an application before Hon'ble the Chief Justice along with a copy of the Division Bench Judgment of this Court in. Dr. Suresh Kumar Bakliwal V. Smt. Neelanjana Jain (D. B. Civil Misc. Appeal No. 335 of 1969 and 17 other Misc. Appeals, decided November on November 8,1990 at Jaipur Bench, Jaipur. That application has been ordered to be treated as a writ petition and has been put before us for disposal.
(2.) IN this writ petition, it was submitted that the Family Court Act, 1984 (No. 66 of 1984) (for short the Act" hereinafter) was formulated in the year. 1984 with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. It is alleged that consequent to the promulgation of the aforesaid Act, a family Court was established at Jaipur with effect from 1. 1. 1986 vide Notification No. P. 2 (8) Judl. /80 dated 26. 12. 1985 with the jurisdiction of Revenue District, Jaipur and two family Courts were established at Jodhpur and Ajmer vide Notification No. P. l (12)Judl. /88 dated 6. 7. 1988 with the jurisdiction of Revenue District of Jodhpur and Revenue District of Ajmer respectively. It was submitted that establishment of these courts facilitated the early disposal of matrimonial matters, which were long pending in the Courts of Rajasthan and give relief to the affected parties. According to the petitioner, his case bearing No. 78a/88 (Radhey Shyam V. Vijay Kaur) filed under s. 13 of the Hindu Marriage Act is also pending at the Family Court, Jodhpur and when it was at the stags of final disposal of the case, the Presiding Officer of the family Court was transferred. With the petition the petitioner has submitted the decision a Division Bench of this Court in Dr. Suresh Kumar Bakliwal's case (supra) has held that the Family court should be deemed to be a Court subordinate to the High Court, (ii) that the Family court has not been constituted so far according to law in the State of Rajasthan and (iii) that on account of violation of ss. 4,5,6,14 and 23 of the Act, the Family Court cannot function legally till the rules are made, Judges are appointed in accordance with the provisions of S. 4 and their service conditions are fixed as per the provisions of law. It was Further held that Family Court cannot function without the Counsellors and it is the obligatory duty of the State and the High Court to provide Counsellors and to frame rules regarding the terms and conditions of administration of Counsellors and presence of Counsellors in the proceedings of the Court is must and s. 6 is mandatory in nature. It was also held that similarly, it also the duty of the State Govt, to determine the association of social welfare agencies and to provide the assistance of Associations to the Family Court. It was submitted by the petitioner that as a result of the aforesaid Division Bench Judgment, the the Family Court, Jodhpur not function and no posting of a Judge at the family Court Jodhpur will take place, which would cause hardship to the affected peplod and would cause unnecessary delay in deciding the matrimonial matters. He has, therefore, requested Hon'ble the Chief Justice to intervene in the matter and to ameliorate the lot of affected people by posting a Judge at the Family Court, Jodhpur so that the disposal of the matrimonial cases may be expedited. Since a reference has been made about the Division Bench decision in Dr. Suresh Kumar Bakliwal's case (supra), it will be proper to deal with this judgment be cause it raises serious questions of law and fact and in our considered view, they deserve to be decided by a larger Bench to be constituted by Hon'ble the Chief Justice because the entire work of the Family Court in Rajasthan has been brought to a stand still and the purpose and the object which was sought to be achieved by this special legislation with the establishment of Family Courts and their effective functioning to give relief to estranged couples in matrimonial disputes and to provide maintenance to helpless women and children appears to have been stultified by this Judgment. The Learned Judges of the Division Bench felt that in a number of appeals filed before this Hon'ble Court against the orders passed by the Family Courts constituted under the Family Courts Act, 1984, questions relating to establishment of family Court and their functioning and failure of competent authorities to frame Rules under ss. 4,5, and 6 of the Act have been raised in different forms. The Court, therefore, felt it proper that specific questions of importance should be formulated and the notices should be issued to the State Advocate General, State Government, the High Court and the Members of the Bar so that these questions of public importance may be decided. The following questions were formulated by the Division Bench in or. Suresh Kumar Bkliwal's case (supra) for its determination 1. Whether the provisions of s. 4 of the Act are followed, in the matter of appointment of the Judge of the Family Court 7 2. What are the terms and conditions of the Judges including salary and other allowances payable to the Judges of the Family Court and whether such terms and conditions including salary and other allowances have been fixed by the State Govt. , in consultation with the High Court ? 3. Whether the Rules have been framed as provided under S. 5. of the Family Court Act or not ? 4. Whether the State Govt, in accordance with the provisions of s. 6 of the Act, after consulting the High Court had determined the numbers of categories of the counsellors to assist the Family Court in discharge of its function? 5. Whether the Counsellors have been provided to assist the Family Court in accordance with the provisions of s. 6. of the Act? 6. Whether the terms and conditions of the associations of the Counsellors referred to in clause (1) of S. 6 have been specified by Rules, made by the State Govt, if any ? The main judgment was rendered by Hon'ble D. L. Mehta,j. and he he has recorded the operative part of the judgment in the following terms "in the result, we answer that (i) family Court should be deemed to be a court subordinate to the High Court, (ii) family Court has not been constituted so far according to law, in the the State of Rajasthan (iii) on account of violation of Secs. 4,5,6,14 and 23 of the Act of 1984, the Family Court cannot function legally till the rules are made, Judges are appointed in accordance with the provisions of s. 4 and their service conditions are fixed as per the provisions of law. Family Court cannot function without the Counsellors and it is the obligatory duty of the State and the High Court to provide Counsellors and to frame Rules regarding the terms and conditions of administration of Counsellors and presence of Counsellors in the proceedings of the Court is a must and s. 6 is mandatory in nature. Similaly, it is also the duty of the State Govt, to determine the association of social welfare agencies and to provide the assistance of Associations to the Family Court. All consequential actions should be taken within two months. " and Hon'ble G. S. Singhvi, J. has recorded his conclusion as follows: "i have gone through the order dictated by Hon'ble Mehta, J. I agree with him so far as conclusion regarding status of Family Court as the Court subordinate to the High court is concerned. I also agree with him that the family Court has not been constituted in accordance with law and that family Court cannot function without framing rules under ss. 5, 6, 21 and 23 of the Family Court act 1984. I also agree with him that the Family Court cannot function without the Counsellors and it is the obligatory duty of the State and the High Court to provide Counsellors and to frame rules regarding the terms and conditions of administration of Counsellors and presence of Counsellors in the proceedings of the Court, However, I do not express any opinion on the views expressed by Hon'ble Mehta ,j. on the question of power of Hon'ble Chief Justice regarding posting and transfer of Judicial Officers. " It is pertinent to note that certain observations have been made in the Judgment by Hon'ble D. L. Metha,j. as regard the powers of Hon'ble the Chief Justice regarding posting and transfer of Judicial Officers and about those ob servations, a disagreement has been recorded by Hon'ble G. S. Singhvi,j. in the following words: "however, I do not express any opinion on the views expressed by Hon'ble Metha, J. on the question of power of the Hon'ble Chief Justice regarding the posting and transfer of Judicial Officers. "
(3.) IT may be stated here that S. 19 (5) of the Act lays down that an appeal preferred under sub. sec. (1) shall be heard by a Bench consisting of two or more Judges. Thus, to make any decision effective in an appeal filed against an order of the Family Court,a concurrent Judgment has to be passed by a Bench consisting of two or more Judges and till it is a concurrent Judgment, it cannot be termed to be a Judgement in the eye of law and, therefore, the aforesaid observations of Hon'ble D. L. Mehta, J. regarding power of the Hon'ble Chief Justice for posting and transfer of Judicial Officers can at best be treated as observations of Hon'ble D. L. Mehta, J. with which Hon,ble G. S. Singhvi,j. has not concurred and, therefore, the aforesaid observation cannot be treated as a part of decision required to be rendered by a Division Bench as per S. 19 (6) of the Act and have no binding force of Judgment. We shall deal with the aspect of the matter a little later but for the present ,we will address ourselves on this aspect of the matter whether the questions that have been formulated in these appeals have been raised or formulated in these appeals in the light of the observation made by Hon'ble D. L. Metha,j. at pages No. 22 and 23 of the judgment, which are as under : "that in all the cases, the parties have surrendered to the jurisdiction of the Court and they have not raised any objection that the provisions of ss. 4,5 and 6 have not been follwed,as such the Family Court cannot function. Thus, the parties have surrendered to the jurisdiction and have waived the right of objecting the jurisdiction of the Court. " When the parties have not raised a dispute about the constitution of the Family Courts as provided by ss. 4,5 and 6 of the Act and have surrendered to the jurisdiction of the Court, was it proper for the appellate Court to raise such questions about the very constitution of the Family Courts and was it in the province of the appelate court to stultify the very functioning of the Family Court negating the very purpose for which these Court were established? The object for which this Act has been enacted was to provide for the establishment of Family Courts with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. It may be stated here that before enactment of the aforesaid Act, the disputes about the marriage and family afore were being heard and decided by the District Courts and it was only after the issuance of the Notifications No. P. 2 (8) Judl. /80 dated 26. 12. 1985 and No. P. 1 (12) Judl. /88 dated 6. 7. 1988 that one Family Court was established at Jaipur with effect from 1. 1. 1986 and two Family Courts were established at Jodhpur and Ajmer after July,1988 and these family Courts have been empowered to hear and decide the disputes relating to the marriage and family affairs having jurisdiction in the revenue Districts of Jaipur, Jodhpur and Ajmer and the remaining Districts in Rajasthan have not been covered by this Act. ;