RADHEY SHYAM SONI Vs. STATE OF RAJASTHAN

JUDGEMENT

(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:

(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:

(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.