SHANKER KANOJIA Vs. MAYABAI S KANOJIA

JUDGEMENT

(1.) Shri S.C. Pandey for the appellant, heard on admission.

(2.) Learned counsel for the appellant has raised a point that since the notification u/s.3 of the Family Courts Act, 1984, has been issued by the State Govt., the Family Court must be deemed to have been established on the date when such notification was issued. It is true that section 3 of the Family Courts Act, 1984, is captioned as "Establishment of Family Courts". It is, however, equally true that no Family Court can be said to have been effectively established unless the Judges to that Court have been appointed in accordance with the provisions of section 4 of the Act. Section 4 of the Act lays down that the State Govt. may with the concurrence of the High Court appoint one or more persons to be the Judge or Judges of Family Court. From the impugned order of the learned single Judge, it appears that no Judge had been appointed on 1-4-1989 as a Judge of the Family Court. 1-4-1989 is the relevant date. It can, therefore, be said by no stretch of imagination that section 8 of the Act which talks of exclusion of jurisdiction and pending proceedings can be said to operate in the field. Section 8 lays down, inter alia where a Family Court has been established for any area :-

(3.) Learned counsel submits that since a notification u/s.3 of the Act was issued, for all practical purposes a Family Court should be deemed to have been established and u/s. 8 of the Act all such proceedings covered by the Explanation to sub-section (1) of Section 7 must be deemed to have stood transferred to the Family Court on the date on which the notification was issued. We are afraid we cannot subscribe to that view, for the establishment of a Family Court in its turn implies that Judges to preside over the Family Court had been appointed and were effectively functioning. As it has already been noticed earlier that no Judge of the Family Court in question had been appointed on the relevant date i.e. 1-4-1989 and, therefore, it cannot be said that the jurisdiction of the District Court or any Subordinate Civil Court where the suit or proceedings was/ were pending, ceased and the proceedings stood transferred to the Family Court concerned for there was no Family Court worth the name to which such proceedings could stand transferred. The argument of the learned counsel for the appellant, therefore, though attractive, has no merit.