SARLA SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Petitioner Sarla Sharma has challenged insertion of Rule 22 in Chapter-IV of the Rajasthan (High Court) Family Court (Amendment) Rules, 1994 (hereinafter shall be referred to as 'the Rules of 1994') vide Notification No. Gen/XV/(a)/3/87/709, dated 11-4-1996 on the ground that the Rule 22 framed by the High Court is ultra vires being contrary to the scope, object and mandate of S. 13 of the Family Courts Act, 1984 (hereinafter shall be referred to as 'the Act of 1984').

(2.) The Act of 1984 has been framed for setting up the Family Courts for the settlement of family disputes, where emphasis is laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence is eliminated. The Law Commission in its 59th Report (1974) had stressed that in dealing with disputes concerning the family the Court ought to adopt and approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of trial. The Commission recommended establishment of Family Courts for speedy settlement of family disputes. The Bill, inter alia, seeks to provide for establishment of Family Courts by the State Government in every city or town with a population exceeding one million. Section 7 of the Act of 1984 exclusively provides within the Family Courts jurisdiction, a suit or proceeding between the parties to a marriage, for a decree of, nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or of restitution of conjugal rights or judicial separation or dissolution of marriage, of declaration as to the validity of a marriage or as to the matrimonial status of any person, with respect to the property of the parties or of either of them, of injunction in circumstances arising out of a marital relationship; for a declaration as to the legitimacy of any person; for maintenance, in relation to the guardianship of the person or the custody of, or access to, any minor. The Family Court shall also exercise 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 and such other jurisdiction as may be conferred on it by any other enactment. By virtue of Section 8 of the Act of 1984 the exclusive jurisdiction to try the matters mentioned hereinabove has been given to Family Court where a Family Court is being established. Section 9 of the Act of 1984 imposes a duty on a Family Court to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceedings.

(3.) Section 15 of the Act of 1984 provides that in a suit or proceeding before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall record or cause to be recorded a memorandum of the substance of what the witness deposes. Section 16 of the Act of 1984 lays down that where the evidence is of a formal character it may be given by affidavit which may, subject to all just exceptions, be read in evidence before the Family Court. The Family Court may, on an application made by the party to the suit or proceedings, summon and examine any such person, as to the facts contained in his affidavit. Considering the object and the provisions made in the Act of 1984 it is clear that the Family Courts are established to settle the disputes relating to marriage and family affairs and for matters connected therewith by conciliatory process overreaching rigid rules of procedure and to settle the matter expeditiously between the parties and to achieve socially desirable results.