JASRAJ CHOPRA,J. - (1.) A Division Bench of this Court vide its order dated 3.12.1990 in D.B. Civil Writ Petition No. 4867 of 1990, Radhey Shyam Soni v. The State of Rajasthan and Ors. referred the following questions for determination by a larger Bench to be constituted by Hon'ble the Chief Justice: (1) Whether in view of the fact that the parties have succumbed to the jurisdiction of the Family Court and have not raised any objection about non -compliance of Sections 4, 5 and 6 of the Family Courts Act, 1984, the learned Judge of the Division Bench in Dr. Suresh Kumar Bakliwal case (supra) and other connected cases were authorised to formulate the questions which they have formulated and answered in the pending appeals against the judgment of a family court specially as regards the constitution and functioning of Family Court? (2) Whether functioning of the Family Courts can be brought to a stand still simply because certain Rules have not been framed either by the High Court or by the State Govt. or Central Govt. Under Sections 21, 22 and 23 read with Sections 4, 5 and 6 of the Family Courts Act, 1984 or in the alternative: Whether non -framing of the Rules Under Sections 21, 22 and 23 or for that matter Under Section 14 of the Family Court Act cut at the root of the functioning of the Family Courts and whether the Family Courts at Jaipur, Jodhpur and Ajmer which are functioning for the last number of years should not be allowed to function simply because service conditions of the persons who are employed in these Courts as Judges, Officer and Counsellors have not been made part of the Rules, which have to be framed by the High Court or the State Govt.? (3) Whether the Provisions of Section 6 of the Family Courts Act, 1984 are mandatory in character or they are only directory in nature? (4) Whether appointment of Counsellors Association of Social Institutions Organisation meant for providing assistance to the Family Court for their better functioning is a condition precedent for the proper functioning of the Court or whether they are only enabling provisions, the compliance of which is not mandatory but directory? (5) Whether in view of Rule 14 to 20 read with Rule 32(2) of the Rules of High Court of Judicature for Rajasthan, 1952, the observations of Hon'ble D.L Mehta, J. in Dr. Suresh Kumar Bakliwal case(supra) as regards the powers of Hon'ble the Chief Justice regarding transfer and posting of Judicial Officer desarve to be sustained or they deserve to be expunged? It is in this back ground that, the aforesaid five questions are before us for determination.
(2.) IT will be very useful to give the short back -ground of this reference here. A Division Bench of this Court at Jaipur Bench while dealing with D.B. Civil Misc. Appeal No. 335 of 1989 and 16 other appeals mentioned in Schedule A annexed with the Judgment, vide its Judgment dated November 8, 1990 observed that in a number of appeals filed before this Court under the Family Courts Act, 1984(hereinafter referred to as 'the Act'), questions relating to establishment of Family Courts and their functioning and failure of competent authorities to frame rules Under Sections 4, 5 and 6 of the Act have been raised in different forms and, therefore, it was considered proper that specific questions of importance should be formulated and notices should be issued to the State Advocate General, State Government, the High Court and the Members of the Bar. Accordingly following six questions were framed and were answered by the Judges constituting that Bench as under: Questions Framed Answers furnished by Answers furnished by by the Bench Hon'ble D.L Mehta. J. Hon'ble G.S. Singhvi. J. 1. Whether the provisions of Section 4 of the Act Family Court should be desmed to be Family Court is a Court are followed in the matter of a court Subordinate to the High Court. Subordinate to the High Court. appointment of the Judges of the Family Court? 2. What are the terms and conditions of Family Courts have not been Family Courts have not the Judges including salary and other constituted so far according to been constituted in allowances payable to the Judges of the law in the State of Rajasthan. acordance with law in the Family Courts and whether such terms State of the Rajasthan. 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 On account of violation of Sections 4,5,6,14 Family Courts cannot function as provided Under Section 5 of the Family and 23 of the Act, the Family Court without framing Rules under Court Act or not? cannot function legally till the Rules are Sections 5, 6, 21 and 23 of the Family made, Judges are appointed in accordance Court Act, 1984. with the provisions of Section 4 and their service conditions are fixed as per the provisions of law. 4.Whether the State Govt. in accordance Family Courts cannot function Family Courts cannot function with the provisions of Section 6 of the Act, after without the Counsellors and it is the without Counsellors and it is the consulting the High Court had determined obligatory duty of the State and the obligatory duty of the State and the number of categories of the counsellors High Court to provide he High Court to provide. to assist the Family Court in Counsellors and to frame Rules Counesllors and to frame Rules regarding the terms discharge of its function? regarding the terms and and conditions of administration conditions of administration of of Counsellors and presence Counsellors and presence of of Counsellors in the Counsellors in the proceedings proceedings of the Courts. of the Court is a must; 5. Whether the counsellors have been Section 6 is mandatory in nature; Did not record any specific provided to assist the Family court in agreement with Hon'ble D.L. Mehta, J. accordance with the Provision of Section 6 of the Act?' 6. Whether the terms and conditions It is also the duty of the State Did not record any specific of the association of the Counsellors referred to in Govt. to determine the agreement with Hon'ble Mehta, J. Clause (1) of Section 6 have been specified by association of social welfare Rules, made by the State Govt., if any? agencies and to provide the stance of association to the Family Courts. It may be stated here that Hon'ble Mr. Justice D.L. Mehta further observed that Section 25 of the Rajasthan Civil Courts Ordinance it self provides that the control over District Court and the Courts subordinate therefore, including postings and promotions shall be vested in the High Court. It was also held that postings include postings by transfer and it is not only the privilege of the Chief Justice but it is the privilege of the High Court and the High Court may constitute a Committee and delegate its powers is a different matter but the power of the transfer cannot be exercised by the Hon'ble Chief justice alone as the powers to post a particular Judge is the privilege of the High Court and not of the Chief Justice. His Lordships Hon'ble Mr. Justice D.L. Mehta further held: So far the postings may be way of transferring the Judicial Officers from one post to another including the Family Court are not in accordance with law and the Provisions of Section 25 read with Article 235 have not been followed. We hope that in future every posting shall be made in accordance with the provisions of Section 25 read with Article 235 of the Constitution as postings include posting by way of transfer One must take note of it that the High Court and the Hon'ble Chief Justice cannot be equated. Whenever the word 'High Court' has been used, it means all Judges sitting together or the Committee of the Judges constituted by the Full Court for the performance of the duties. We hope that the Registry in future will take note of it and wherever the matter is to referred to the High Court, it will not keep it pending or decide it only by asking submission to the Hon'ble Chief Justice. As regards these observations of Hon'ble Mehta, J., Hon'ble G.S. Singhvi, J. observed as follows: However, I do not express any opinion on the views expressed by Hon'ble Mehta, 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 earlier, the Judge who was posted as Judge, Family Court, Jodhpur was transferred as District Judge, Sri Ganganagar and, therefore, that post was lying vacant. That apart, on the basis of the aforesaid Division Bench Judgment in Dr. Suresh Kumar Bakliwal case (supra), functioning of the Family Courts at Jodhpur, Jaipur and Ajmer was also brought to a halt. In that view of the matter, feeling aggrieved by non -progress of his case pending before the Family Court, Jodhpur, one Shri Radhey Shyam Soni submitted an application to Hon'ble the. Chief Justice mentioning therein that the Family Courts Act, 1984 (No. 66 of 1984) 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 there with and consequent to the promulgation of the aforesaid act, a Family Court was established at Jodhpur vide Notification No. P. 1.(12)Judl./88 dated 6.7.1988 with the jurisdiction of Revenue District of Jodhpur. It was submitted that the established of this Court facilitated the early disposal of matrimonial matters, which were long pending and it gave relief to the affected parties. According to the petitioner Radhey Shyam Soni, his case bearing No. 78A/88 (Radhey Shyam v. Vijay Kaur.) filed Under Section 13 of the Hindu Marriage Act is also pending in the Family Court, Jodhpur and when it was at the stage of final disposal, the Presiding Officer of the Family Court was transferred. He has further submitted that a Division Bench of this Court at Jaipur Bench in Dr. Suresh Kumar Bakliwal case (supra) has held that the Family Court cannot function legally till the Rules are made, Judges are appointed in accordance with the provisions of Section 4 and their service conditions are fixed as per the provisions of law and the said decision has been given in pending appeals, which were filed against the orders passed by the Family Courts constituted under the Family Courts Act, 1984. It was submitted that as a result of this judgment in Dr. Suresh Kumar Bakliwal's case(supra) and non -posting of a Judge at Family Court, Jodhpur, it is causing hardship to the affected people and would cause unnecessary delay in deciding the matrimonial cases. He has, therefore, requested Hon'ble the Chief Justice to intervene in the matter and to ameliorete 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. This application dated 16.11.1990 was forwarded to the Public Interest Litigation Cell of the High Court wherein it was treated as a writ petition and was placed before a Division Bench of this Court at Jodhpur. The Division Bench felt that they cannot agree with the conclusions arrived at by the Division Bench in Dr. Suresh Kumar Bakliwal's case (supra), and therefore, the aforesaid five questions were referred to be determined by a larger Bench of this Court to be constituted by Hon'ble the Chief Justice.;