RADHE SHYAM SONI Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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. "