Bombay High Court
Kamal V.M. Allaudin And Etc. Etc. vs Raja Shaikh And Etc. Etc. on 7 March, 1990
Equivalent citations: AIR1990BOM299, AIR 1990 BOMBAY 299, (1990) 2 BOM CR 335
ORDER
1. These are Matrimonial Petitions and Suits which involve a common question of law, namely, whether these matters stand transferred or should be transferred to the Family Court, Bombay established the Family Courts Act, 1984 (Act No. LXVI of 1984). The Family Court was established in the City of Bombay as from 7th October 1989, and the Act has been brought into force for the purpose of the said court as from that day. Since the question involved is likely to arise in several other Matrimonial Suits or Petitions pending in this court, I thought it convenient to request the counsel appearing in all these matters to address me, in the first instance, on this question, without going into the merits of each case which will be done separately.
The question that arises for consideration may be formulated thus:--
Whether the matrimonial jurisdiction ex-ercisable by this Court (High Court) on its Original Side is not affected by S. 7 of the Family Courts Act, 1984, and whether consequently the matrimonial matters pending in this Court on or after 7-10-1989 do not stand transferred to the Family Court?
2. For the sake of convenience, I will refer to the Counsel who support the line of argument that the jurisdiction of this Court is not affected and no matters are required to be transferred to the Family Court, as counsel who support the proposition, and those counsel who adopt the line of argument that the Family Court is how clothed with exclusive jurisdiction to entertain matters of the aforesaid category and all pending proceedings should be transferred to that Court, as, counsel opposing the proposition.
3. Mr. Rafiq Dada led the argument in support of the proposition, Mr. J. I. Mehta, Mr. D. V. Merchant, Mr, Karim and Miss.
Anusuya Dutt, Advocates, joined him by adding few more points.
4. On the other hand, Mr. Palan argued in support of the other view. Mr. P. L; N.ain and Mr. N. M. Shah supplemented his argu ments.
5. In order to be able to appreciate the nature of the controversy, it is necessary to set out at the outset the relevant provisions of the Family Courts Act :
Sub-sec. (d) of S.2 defines the "Family Court" to mean :
'a Family Court established under S. 3';
S. 3 of the Act reads as follows:--
"3(1). Establishment of Family Courts--
For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Government, after consul tation with the High Court, and by notifica tion-
(a) shall, as soon as may be after the commencement of this Act, establish for every area in the State comprising a city or town whose population exceds one million, a Family Court;
(b) may establish Family Courts for such other areas in the State as it may deem necessary.
(2) The State Government shall, after consultation with the High Court, specify, by notification, the local limits of the area to which the jurisdiction of a Family Court shall extend and may, at any time, increase reduce or alter such limits."
Sub-section (e) of S. 2 lays down that-
"all other words and expressions and but not defined in this Act and defined in the Code of Civil Procedure, 1908, shall have the meanings respectively assigned to them in the Code."
6. Chapter III of the Act deals with jurisdiction.
7. It is necessary to set out Ss. 7 and 8 of the Act which read as follows:--
JURISDICTION "7(1). Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purpose of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such Subordinate Civil Court for the area to which the jurisdiction of the Family court extends.
Explanation.-- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, name-ly:-
(a) 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 restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magis trate 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
(b) such other jurisdiction as may be conferred on it by any other enactment.
8. Exclusion of jurisdiction and pending proceedings.-- Where a Family Court has been established for any area,--
(a) no District Court or any Subordinate Civil Court referred to in sub-sec. (1) of S. 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973;
(c) every suit or proceeding of the nature referred to in the Explanation to sub-sec.(1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),--
(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section, or as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Familly Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established."
Section 20 of the Act provides that -
"The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
Section 21 of the Act confers powers on the High Court to make Rules as it may deem necessary for carrying out the purposes of this Act. Likewise, Sections 22 and 23 confer powers upon the Central Government and the State Government respectively to make Rules for carrying out the purposes of the Act and such other purposes as are enumerated therein but such Rules are to be made in the case of Central Government with the concurrence of the Chief Justice of India and in the case of State Government after consultation with the High Court and laid before the Parliament when made by the Central Government and before the State Legislature when made by the State Government.
8. The Government of Maharashtra made Family Court Rules, 1987 which have been brought into force from 1st May 1987. However, the Family Court in Bombay was established much later thereafter.
9. The High Court of Bombay also has framed the Family Courts (Court) Rules, 1988 in exercise of the powers conferred upon it by Section 21 of the Family Courts Act.
10. It would, therefore, be seen on reading Section 7 of the Act that the Family Court now has and exercises all the jurisdiction that was exercisable till the establishment of the Family Court, by any District Court or any subordinate Civil and Criminal Court in respect of suits and proceedings of the nature referred to in the Explanation to the said Section. It also introduces a deeming fiction that for the purposes of exercising such jurisdiction the Family Court shall be deemed to be a District Court or as the case may be such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. It must be noted in this context that under Section 3(1)(a) of the Act a Family Court may be established for every area in the State comprising a city or town whose population exceeds one million (subject to any alteration as may be made by the State Government in the manner prescribed in subsection 2). It is therefore clear that the jurisdiction of the Family Court extends over an area for which it may have been established and such area may be different than the area of territorial limits of any existing District Court or subordinate Court specified under the Civil Courts Act. Although Sections 7 and 8 thus refer to a District Court and subordinate civil Courts, the Act does not contain any definition of the District Court. In order, therefore, to determine what is a District Court within the meaning of and for the purposes of Sections 7 and 8 of the Act, recourse has to be taken to other relevant laws including the Code of Civil Procedure.
11. Section 2(4) of the Code of Civil Procedure reads thus :
(4) "district" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court."
On a plain reading of this clause, it becomes apparent that the inclusion of the local limits of the Ordinary Original Civil Jurisdiction of a High Court is for the purpose of defining a 'District' and not necessarily a District Court. However, the question is vexed and I shall presently turn to the arguments of the Learned Counsel who have tried to interpret the clause in different ways.
12. Since Sections 7 and 8 of the Act speak of a 'District Court', the question that has to be resolved is as to whether the High Court, when it exercises matrimonial jurisdiction, is covered by the definition of a 'District Court' contained in Section 2(4) of the Code of Civil Procedure. If it to be regarded a District Court in that sense, then there is no difficulty in holding that part of matrimonial jurisdiction of the High Court is now taken away and conferred upon the family Court. If, on the other hand, it is found that the High Court is not a District Court in the aforesaid sense, then the matrimonial jurisdiction of this Court would remain unaffected.
13. Mr. RafiqDada, the learned Counsel vehemently argued that the High Court can never be equated with the District Court even for the purposes of Sections 7 and 8 of the Act. In his submission, the family Courts Act is not armed at divesting the High Court of its matrimoninal jurisdiction which it exercises as extraordinary and inherent jurisdiction. In his submission, in so far as the matrimonial jurisdiction of the High Court (which it exercises on its original side) is concerned, it derives its source from Clause 35 of the Letters Patent and inasmuch as the Letters Patent has not been amended by the Parliament, the Family Courts Act does not take away that jurisdiction. Consequently in his submission, there arises no question of matrimonial proceedings in regard to which jurisdiction is not statutorily conferred upon the Family Court being taken away from the High Court nor there arises any question of pending matters being required to be transferred from the High Court to the Family Court. The learned Counsel submitted that at one time although Clause 35 of the Letters Patent was understood in a limitative sense applicable only to matrimonial matters between Christians and the other jurisdiction was referable to Clause 12 of the Letters Patent, that distinction has been done away with when it has been interpreted that Clause 35 embraces every type of matrimonial jurisdiction. He, describes the jurisdiction exercised by this Court under Clause 35 of the Letters Patent as "matrimonial jurisdiction" of this Court. In support of this proposition, the learned Counsel has placed reliance upon an unreported decision of J. C. Shah, J., (as His Lordship then was) in the case of Bai Vanchala wife of Shiva B. Kamble v. Shiva Bhau Kamble, M. J. Suit No. 1715 of 1949 decided on 13th September, 1950. That was a suit between parties who were Hindus, for dissolution of the marriage and incidental reliefs. The learned Judge had occasion to consider the effect of the Bombay Prevention of HinduBigamous Marriages Act XXV of 1946 and Bombay Matrimonial (Transfer of Section 4A of the Bombay Matrimonial (Transfer of Cases) Act, the scope of Clause 35 of the Letters Patent and its extent was examined in great detail by the learned Judge. After setting out the historical background of the matrimonial jurisdiction of this Court (High Court) and after noticing as to how earlier the jurisdiction fell under four heads viz., Common Law, Equity, Esclesiastical and Admiralty, and noting the history up to the establishment of this Court under the Charter, so also considering the effect of the marginal heading of Clause 35 of the Letters Patent the learned Judge held thus:--
"But neither the heading 'matrimonial jurisdiction' which precedes Clause 35 nor the marginal note 'matrimonial jurisdiction' is in my judgment sufficient for holding that the High Court has not or had not matrimonial jurisdiction in respect of disputes other than those expressly provided for in Clause 35 of the Letters Patent."
It was further observed, after referring to the decision of Grump J. in Rachel Benjamin v. Benjamin Soloman Benjamin and the decision of the Full Bench in the case of Nina Dalal v. Merwanji Pherozshaw, (1930) ILR 54 Bom 877 : (AIR 1930 Bom 385) (FB), thus:--
"Mr. Justice Broomfield was of the view that whatever may have been the matrimonial jurisdiction of the Court under Cl. 35 of the Letters Patent when it was enacted or promulgated, by reason of the subsequent developments and amendments made to the Indian Divorce Act, Cl. 35 of the Letters Patent must be deemed to have been abrogated or amended. xxxxxxxxx"
14.When similar question came up for consideration before Mr. Justice K. K. Desai (as He then was), in a suit filed by a Muslim wife in this Court for a decree for dissolution of marriage against her husband, being M. J. Suit No. 57 of 1963, decided on 31st October, 1963, after referring to the above quoted passages from the decision of Shah, J., the learned Judge, agreeing with the view taken by Shah J., concluded thus:--
"Respectfully following the observations of the learned Judge, I am bound to hold that the phrase "matrimonialjurisdiction" as contained in Section 3(a) of the Bombay City Civil Court Act refers and relates to all matters matrimonial. The result is that the matrimonial matters being cognizable by the High Court as a Court of matrimonial jurisdiction, are not directly receivable and triable by the Bombay City Civil Court. These matters are triable by the Bombay City Civil Court only when transferred under the provisions in Section 4A of the Act."
15. In order to understand the ratio laid down in these two judgments correctly viz., that the exercise of matrimonial jurisdiction by this Court under Clause 35 of the Letters Patent is not confined only to the Christians but members of other communities irrespective of their religious persuasion can also seek matrimonial relief under that jurisdiction, the relevant provisions of the law that fell for consideration in those cases have to be briefly noted. Clause 35 of the Letters Patent reads as under :
"35. And We do further ordain that the said High Court of Jurisdiction (at Bombay) shall have jurisdiction within (the Presidency of Bombay) in matters matrimonial between our subjects professing the Christian religion: Provided always, that nothing herein contained shall be held to interfere with the exercise of any jurisdiction in matters matrimonial by any Court not established by Royal Charter within the said Presidency lawfully possessed thereof."
Clause 12 of the Letters Patent reads thus :
"12. And We do further ordain that the said High Court of Judicature (at Bombay), in the exercise of its ordinary original civil jurisdiction shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immovable property such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for suit, within such limites except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, or the Bombay City Civil Court."
Section 4A of the Bombay Matrimonial (Transfer of Cases) Act, 1950, reads as follows :--
"4A(1) Notwithstanding anything contained in any law for the time being in force, the High Court may at any stage transfer to the City Civil Court any suit or proceeding which is cognizable by it as a Court having matrimonial jurisdiction and instituted in such Court.
(2) Any suit or proceeding so transferred shall be heard and disposed of by the City Court and the City Court shall have all the powers and jurisdiction in respect as if it had been originally instituted in that Court.
(3) In any such suit or proceeding institution fees shall be paid, credit being given to any Court fee levied in the High Court and costs incurred in the High Court till the date of transfer shall be assessed by the City Court in such manner as the Provincial Government may, after consultation with the High Court, determine by rules."
The question that had arisen after the Transfer of Cases Act was, as to whether the matrimonial jurisdiction which was till then exercised under Clause 35 or Clause 12 of the Letters Patent, as the case may have been, was taken away. In that context, in the aforesaid decisions, Section 4A was construed to mean that the said jurisdiction was not taken away but a discretion was conferred on this Court to transfer such of the matrimonial matters as were entertained by it to the City Civil Court for trial when considered proper. The sum and substance of these two decisions therefore is that the matrimonial jurisdiction of this Court remained intact and the scope of Clause 35 was construed to apply to all matrimonial matters which were not specifically assigned to any other Court by statute. Precisely, therefore, it is submitted now by Mr. Dada that even the Family Courts Act makes no difference to that position and the matrimonial jurisdiction of this Court remains unaffected as it is exercised under the Letters Patent and not as a district Court.
16. Broadly speaking, the relevant matrimonial laws go by the religious persuasions of the parties as part of their persona! law. Under Clause 35 of the Letters Patent, this Court is conferred with matrimonial jurisdiction in regard to Christians. Other matrimonial suits were entertained in exercise of jurisdiction under Clause 12 of the Letters Patent, though Shah J., held that the total matrimonial jurisdiction of this Court was exercisable under Section 35 of the Letters Patent.
17. In the year 1954, the Special Marriage Act was brought on the statute book. By Section 2(e) of the Act, "District Court" was defined (in so far as material here) to mean the City Civil Court in any area for which there is a City Civil Court. By that time the Bombay City Civil Court had been established. There-
fore, by virtue of this statutory provision, the matrimonial jurisdiction of this Court was taken away to the extent of matters covered by the Special Marriage Act and it was conferred upon the City Civil Court. Like-wise, under the Foreign Marriage Act 1969, by Explanation to Section 18(2), the same definition of the 'District Court' as contained in the Special Marriage Act, 1954 was adopted for the purposes of the said Act. That means the jurisdiction under the Act was conferred upon the City Civil Court so far as the City of Bombay was concerned, and to that extent the jurisdiction exercisable by this Court under the Letters Patent came to be taken away. Then came the Jindu Marriage Act 1956 which is applicable to Hindus, Buddhists, Jains, and Sikhs. That Act conferred the jurisdiction for the purposes of the Act upon the City Civil Court (in the City of Bombay) by virtue of Section 3(b) which defines "District Court" to mean in any area for which there is a City Civil Court, that Court. The result was that thejurisdiction, for the purposes of that Act, was conferred upon the City Civil Court and consequently that part of jurisdiction exercisable by this Court under the Letters Patent was taken away.
18. However, as Mr. Dada rightly pointed out, the in road in the jurisdiction of this Court made under that Act was to the extent of matters that were covered by the Act and even after the implementation of that Act this Court still continued to have remnants of matrimonial jurisdiction to Hindus. In that connection Mr. Dada brought to my notice a decision of the Division Bench of this Court (Chagla, C. J. and S. T. Desai J.,) in the case of Mrs. Kamala Nair v. Narayan Pillai Kumarain Nair, . That was a petition for dissolution of marriage filed in this Court, the parties to the petition being governed by Marumuka-thayam Law, and the question raised was whether the High Court could entertain such petition, in view of the Hindu Marriage Act having been enacted. Chagla, C.J., (as he then was) after noting the definition of the expression "District Court" contained in the Hindu Marriage Act, stated that Section 29(2) of the Hindu Marriage Act, 1955, in terms saves customs and enactments which give right to a party to obtain dissolution of a Hindu Marriage whether solemnised before or after its commencement. A petition for divorce under Marumukathayam Law is not a petition under the Act and Section 19 of the Act has no application to such a suit. It was held that High Court had jurisdiction to hear the suit. Reference to the said decision has been made only to point out that it was held that notwithstanding the enactment of the Hindu Marriage Act governing the Hindus, the residuary matrimonial jurisdiction still remained vested in this Court. It is submitted that in other words, it means that unless the matrimonial jurisdiction or any part of it exercisable by this Court under its Letters Patent is not taken away by express provision of law or by necessary implication, amending either Clause 35 or Clause 12 of the Letters Patent, the matrimonial jurisdiction of this Court remains unaffected and intact.
19. There are two other principal statutes of which note is required to be taken. Under the Indian Divorce Act, 1869, the term 'High Court' has been explained in the Interpretation Clause. Under Section 3(1) 'High Court' means,--
"With reference to any area, the High Court for that State" (in a State) It also prescribes that-
"in the case of any petition under the Act, 'High Court' means the High Court for the area where the husband and wife reside or last resided together."
Section 3(3) of the Act defines the 'District Court', as :
"in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction under this Act, the husband and wife reside or last resided together."
It is also material to note the definition contained in Section 3(4) which defines a 'Court', to means-
"the High Court or the District Court, as the case may be."
Section 4 of the Act needs to be set out and it reads as follows:--
"4. Matrimonial jurisdiction of High Court to be exercised subject to Act --Exception.-- The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts, and by the District Courts subject to the provisions in this Act contained, and not otherwise, except so far as relates to the granting of marriage licence, which may be granted as if this Act had not been passed."
Section 8 of the Act relates to extraordinary jurisdiction of the High Court and provides that the High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under the Act in the Court of any District Judge within the limits of its jurisdiction under the Act. It also confers power on the High Court to withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge. Section 9 provides that when any question of law or usage having the force of law arises at any point in the proceedings previous to the hearing of any suit under the Act by a District Judge or at any subsequent stage of such suit, or in the execution of decree therein or order thereon xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx it has to be referred to the decision of the High Court. The scheme of the Act is therefore clear and the distinction is maintained between the High Court the District Court. It contemplates transfer or withdrawal of cases under the Act from a District Judge to the High Court or from one District Judge to the other District Judge, but it does not contemplate transfer of proceedings instituted or entertained by the High Court itself to the District Judge. This Act, therefore, statu-torily confers the jurisdiction upon the High Court wherever the cause arises (under the Act) within the area over which the High Court exercises its original jurisdiction. This Act has to be read in the context of Clause 35 of the Letters Patent which makes provision for exercise of matrimonial jurisdiction in respect of Christian. If the High Court is excluded from the purview of Sections 7 and 8 of the Family Courts Act, then, obviously two inconsistent situations will arise. It will mean that for the persons who are not Christians, there will be a different forum as a District Court (i.e. Family Court) and so far as the Christians are concerned a different Court in the shape of Original Side of the High Court will be there within the limits of its territorial jurisdiction. There would arise a further anomalous position as matters between the Christians which hithertofore were entertained by District Courts outside the limits of original jurisdiction of the High Court will now go before the Family Court but matters that arise within the limits of jurisdiction of the Original Side of the High Court will continue to be entertained by the High Court. This situation needs to be reconciled. At the moment I have referred to the provisions of this Act to point out that despite the existence of Clause 35 of the Letters Patent, the Act has specifically conferred jurisdiction upon the High Court and District Court for the purposes of the Act. It means that whether to confer specific jurisdiction in consonance with the Letters Patent or whether to take away the jurisdiction of the High Court exercisable under Clause 35 of the Letters Patent, there has to be a statutory provision made in express terms or in terras which by necessary implication bring about such consequence. In that sense, the Family Courts Act does not give any indication.
20. In so far as the Parsis are concerned, the matrimonial matters amongst them are regulated by the Parsi Marriage and Divorce Act, 1936. Section 2(2) defines the "Court" for the purposes of the Act to mean a Court constituted under the Act. Section 18 of the Act provides that for the purpose of hearing suits under the Act a Special Court shall be constituted in each of the Presidency-towns of Calcutta, Madras and Bombay and in such other places in the territories of the several State Governments as such Governments respectively shall think fit. Section 19 of the Act makes it clear that the Court so constituted shall be entitled the Parsi Chief Matri-
monial Court of Bombay (In so far as presently material) and the local limits of the jurisdiction of the Court shall be conterminous with the local limits of the ordinary original civil jurisdiction of the High Court, and the Chief Justice of the High Court or such other Judge of the same Court as the Chief Justice shall from time to time appoint, shall be the Judge of such Matrimonial Court, and in the trial of cases under the Act, he shall be aided by seven delegates. Now, although this definition was incorporated in the Act in 1936 and although the Act has been amended as late as in 1988 by Act No. 5 of 1988 from 25th March, 1988, I do not find any change made in Section 18 or Section 19, save and except that the number of delegates has been reduced to five in place of seven. That goes to show that the High Court exercises jurisdiction for the purpose of this Act as a Special Court and to that extent Clause 35 of the Letters Patent stands substituted by virtue of the statutory provision.
21. The position therefore presents no difficulty in so far as matrimonial matters between parties who are Hindus, Christians and Parsis are concerned or who may be governed by the Special Marriage Act or Foreign Marriage Act. The forums are known and although it may seemingly appear to be incongruent after the advent of the Constitution that communities of different religious persuasions should be required to approach different forums for obtaining similar matrimonial reliefs, that position is the result of existing laws which have not so far been consolidated.
22. That brings me to the crucial question as to what is the position in respect of matrimonial matters arising between parties who are Muslims and parties who are Jews. By and large, matrimonial petitions and suits coming to the Courts pertain to the Hindu, Muslim, Christian, Parsi and Jew communities. Even the Family Courts Act contemplates that personal law of parties will govern them in their respective matrimonial causes. The matters between spouses who are governed by different personal laws or who have gone through a civil marriage would ordinarily fall under the Special Marriage Act and therefore now would be cognizable by the Family Court. The Dissolution of Muslim Marriages Act, 1939, does not prescribe any forum. Consequently, a proceeding under that Act takes the form of a suit and a decree. The preamble of the Act itself refers to suits for dissolution ,of marriage by women married under Muslim Law. By reason of Section 15 of the Code of Civil Procedure, the suits are filed in the ordinary civil Court of lowest jurisdiction in the Mofussil. But, in so far as the City of Bombay is concerned, they are filed on the original side of the High Court. In my view such suits fall under Clause 12 of the Letters Patent, though it may be debatable whether such suits would fall under Clause 35 in view of the judgment of Justice J. C. Shah J., (supra), but under whichever clause they may fall, they are being entertained in this Court in the absence of any other forum in the nature of a Court of ordinary civil jurisdiction being prescribed under the Act. The ordinary civil jurisdiction in the City of Bombay is vested in the High Court on its original side. After the establishment of the City Civil Court, question arose as to whether such suits should be filed in the City Civil Court, that forum being available as the Court of lowest jurisdiction. That question precisely fell for consideration of Mr. Justice K. K. Desai in the case of Mrs. Shirin A. K. Makani (supra). As stated earlier, it was held by Desai, J. in that case that since the phrase "matrimonial jurisdiction" contained in Section 3(a) of the Bombay City Civil Court Act refers and relates to all matters matrimonial, such matrimonial matters being cognizable by the High Court as the Court of Matrimonial Jurisdiction, these are not directly receivable and triable by the Bombay City Civil Court, but these matters are triable by that Court only when transferred under the provisions in Section 4A of the Act. In order to appreciate this aspect, it is necessary to take note of Section 3 of the City Civil Court Act. It provides: (in so far as material for the present purpose)-
".......Notwithstanding anything contained in any law, such Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature (not ex-
ceeding fifty thousand rupees) in value and arising within the Greater Bombay except suits or proceedings which are cognizable-
(a) by the High Court as a Court of x x x x x XXXXXXXXXXXX XX XXXXXXXXXXXX matrimonial jurisdiction".
After the establishment of the Family Courts Act, the Legislature has not amended the Transfer of Matrimonial Jurisdiction Act to substitute the City Civil Court by Family Court therein. The position therefore remains that matrimonial suits between the Muslims under the Dissolution of Muslim Marriage Act continue to be cognizable by the High Court as held by Mr. Justice K. K. Desai. There is also no povision in any law for transfer of such suits to Family Court. Unless therefore it could be held that the District Court contemplated by the Family Courts Act includes the High Court on its Original Side, such suits would continue to be cognizable by this Court.
23. Turning now to the Jews, their matters are regulated by their personal law. There is no statute governing their matrimonial affairs. Any matter matrimonial arising between them, therefore, takes the shape of a suit and on the analogy of the Dissolution of Muslim Marriages Act, such a suit should be filed in the ordinary Civil Court of lowest jurisdiction under Section 15 of the Code of Civil Procedure. Such suits arising in Bombay are being entertained by this Court on its Original Side. The jurisdiction of this Court for deciding disputes between parties who are Jews governed by the Jewish Law is referable to Clause 12 of the Letters Patent viz., the civil jurisdiction as held by Crump J., in Rachel Benjamin v. Benjamin Soloman Benjamin, (1925) ILR 50 Bom 369 : (AIR 926 Bom 169), wherein matrimonial jurisdiction was regarded as distinct from civil jurisdiction. It is further clear from the judgment of Mr. Justice K. K. Desai to which reference has been made above, that such suits were not cognizable by the City Civil Court. Desai J., has discussed this aspect in the judgment and has eventually concluded, having regard to Section 3 of the Bombay City Civii Court Act, that such jurisdiction was always exercised by this Court. Hence, even the suits between Jews will continue to be cognizable by this Court unless a view could be taken that this Court while exercising jurisdiction on its Original Side under Clause 12 of the Letters Patent is acting as a District Court within the meaning of and for the purpose of the Family Courts Act, and that under the said Act exclusive jurisdiction is conferred on that Court to entertain such suits and the jurisdiction of this Court to that extent has been taken away.
24. Mr. Rafiq Dada submitted that the jurisdiction of this Court is neither taken away by any express provision nor by necessary implication or intendment by the Family Court Act. He submitted that this Court cannot be described to be a district Court within the meaning of Section 2(4) of the Code of Civil Procedure. According to him the concept of a District Court in the various matrimonial Acts makes that position abundantly clear. Referring to Section 3 of the Family Courts Act, he submitted that inasmuch as consultation with the High Court is contemplated, the High Court is treated as a distinct entity and that shows that it is not considered to be the District Court for the purpose of the Act. To the extent of this submission, I find it difficult to agree because the consultation required is in respect of establishment of the Family Court and not in respect of its jurisdiction. The learned Counsel submitted that the legislature must be deemed to have been aware of the various Acts relating to matrimonial law and of the fact that in several such Acts such as Hindu Marriage Act and the Special Marriage Act, the phrase 'District Court' was clarified and thus had the legislature intended to include High Court within the definition of a District Court, it would have done so in express terms. He also referred to the provisions of the General Clauses Act, 1897. Section 3(17) of that Act defines a District Judge to mean the Judge of a principal Civil Court of original jurisdiction, but also states that it shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. He submitted that the true meaning of the phrase 'District Court' employed in the Family Courts Act has to be ascertained bearing in mind this definition as well as the fact that under Section 2(4) of the Civil Procedure Code only a district has been defined and no separate definition of a District Court has been given. In this submission in the context of definition contained in Section 2(4) of the Civil Procedure Code, the High Court on its Original Side may be regarded as exercising powers over a district i.e. the territorial area of its limits of its jurisdiction but thereby it does not become a District Court. He submitted that a District Couirt is to be regarded subordinate to the High Court under Section 3 of the Code of Civil Procedure and therefore the High Court is distinct from a District Court and cannot be described as a District Court. He also drew my attention to Part III of the Bombay Civil Courts Act, 1869. Section 5 of that Act provides that there shall be in each district a District Court presided over by a Judge to be called the District Judge. Section 3 empowers the State Government to alter the limits of existing districts and to create new districts. That shows that the connotation of district is a geographical connotation. Section 7 of the Act lays down that the District Court shall be the principal Court of original civil jurisdiction in the district, within the meaning of the Code of Civil Procedure. That is how the Civil Procedure Code in Section 2(4) defines a district and explains it to be the District Court. It is therefore contended by the learned Counsel that although this Court exercises original civil jurisdiction alike a District Court, in the absence of there being a District Court for the City of Bombay due to the existence of the High Court, the High Court cannot be described to be a District Court, but it only exercises the powers or jurisdiction which a District Court in other places would exercise. Mr. Dada submitted that thus the concept of the District Court differs in the context of different Acts and for different purposes and therefore merely by reading Section 2(4) of the Code of Civil Procedure, a High Court cannot be described to be a District Court within the meaning of Sections 7 and 8 of the Family Courts Act.
25. In the case of Pravin R. Geglani v.
Beharilal Beniprasad Pvt. Ltd., ., Naik J. held that having regard to Section 12 of the Bombay City Civil Court Act and the notification dated 20th January, 1950 issued under Section 4 of the Act, the Bombay City Civil Court is the principal Court of original civil jurisdiction in respect of the matters C9vered by the said notification (subject however to the exceptions specified in S. 3 of the Act) and, therefore, it would be the District Court referred to in Section 2(4) of the Civil Procedure Code. Mr. Dada submitted that this judgment does not lay down any ratio to the effect that the High Court on its Original Side is the District Court for all purposes because Justice Naik himself has stated that the City Civil Court is principal Court of civil jurisdiction subject to the exceptions specified infection 3 of the Act. which exceptions include proceedings which are cognizable by the High Court in its matrimonial jurisdiction. Hence, in so far as matrimonial jurisdiction is concerned, even according to this judgment, the High Court cannot be said to be a District Court.
26. The learned Counsel next drew my attention to Rules framed by the State of Maharashtra as well as by this Court to point out that the High Court is mentioned distinctly from a District Court. It must be remembered that in Clause (g) of Explanation to Section 7 of the Family Courts Act, reference is made to a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Rule 35 of the Maharashtra Family Court Rules reads thus:--
"All applications for guardianship and adoption other than the applications over which the High Court has jurisdiction shall be filed before the Family Courts."
It is therefore argued that the jurisdiction of the High Court in these matters remains unimpaired and if that be so, different interpretation for the purposes of Clauses (a) to (f) and for the purpose of Clause (g) of Explanation cannot be placed and the entire Explanation to Section 7 has to be construed in a harmonious way, which, in other words, would mean that even for the purposes of Clauses (a) to (g), the High Court continues to be a District Court and is not the District Court for the purposes of the Family Courts Act. According to the learned Counsel, similar is the position by reason of the Family Courts (Court) Rules, 1988, made by the High Court, inasmuch as Rule 50 provides that all petition's for guardianship other than the applications over which the High Court has jurisdiction shall be filed before the Family Court. Mr. Dada also referred to the provisions of Guardians and Wards Act, 1890 in this connection. He argued that the definition of 'District Court' contained in Section 4(4) of the Act is an inclusive definition whereby the High Court in the exercise of its ordinary original civil jurisdiction is assigned the meaning as a District Court. However, according to the learned Counsel, Section 3 saves the jurisdiction of the High Court which lays down in clear terms that nothing in the Act shall be construed to affect or to take away any power possessed by any High Court. That shows, according to the learned Counsel, that the definition of 'District Court', although is an inclusive definition for certain purposes, it does not affect the jurisdiction of the High Court. Section 3 of the Act, according to the learned Counsel, has to be understood in the context of Clause 17 of the Letters Patent which clause confers jurisdiction of the High Court as to infants and lunatics and therefore petitions for guardianship are taken cognizance of by this Court. It may not be out of context to mention here that where there is a special law regulating such matters, the jurisdiction under Clause 17 stands substituted such as under the Hindu Minority and Guar-
dianship, Act, 1956, or where such matters arise incidentally in a suit or other proceedings in any other Court. Hence, the learned Counsel submits that Explanation to Section 7 cannot be read by splitting apart its different clauses for the purposes of determining the question of jurisdiction and by construing the District Court differently for different purposes.
27. Mr. Dada, therefore, submitted that in matters matrimonial arising between Muslims under the Disssolution of Muslim Mar-riages Act and matrimonial suits between persons who are Jews or between persons who are not governed by any of the statutes prevalent at the time, continue to be cognizable by this Court in the exercise of its matrimonial jurisdiction and this Court cannot be described as a district court for the purposes of Section 7 or Section 8 of the Family Courts Act.
28. Mr. J. I. Mehta, who supported the submissions of Mr. Dada additionally submitted that although Section 2(4) of the Civil Procedure Code may define a district with reference to geographical extent of the district, converse of that does not follow so that even though the High Court has jurisdiction over the district, it does not become a district court simply because the High Court or the City Civil Court or the Family Court have concurrent jurisdiction over the same territorial limits and each court remains a district court. Referring to the judgment of Naik, J. in Pravin Geglani's case, (supra) he submitted that the ratio stretched to its logical conclusion may imply that there could be two district courts in the city of Bombay, one City Civii Court and the other High Court. That would not be the correct way of understanding the ratio, because in his submission, there can be only one principal court by reference to territorial limits and consideration of pecuniary limits of jurisdiction of such court is irrelevant. Referring to the Family Court Rules framed by the State of Maharashtra and the High Court, on which Mr. Dada also commented, as noted earlier, Mr. Mehta submitted that if a High Court was included in the definition of the district court under the Family Courts Act, then Rule 35 of the Maharashtra Family Court Rules and Rule 50 of the Family Courts (Court) Rules of the High Court Rules would bring about a result inconsistent with Section 7 of the Act. He submitted that the expression district court has to be understood in the context of different statutes. He pointed out that there are few grey areas in the Act; for instance, the Act is silent about suits which may be composite in nature involving matrimonial causes and civil rights. In substance, therefore, he submitted that the High Court is hot covered by the expression district court occurring in Sections 7 and 8 of the Family Courts Act.
29. Mr. D. B. Merchant supplemented he above submissions of the learned counsel by referring to Section 19 of the Family Courts Act. That Section provides that an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. According to Mr. Merchant, this goes to show that family court would be a subordinate court and therefore it would not be correct to equate the High Court with a district court. In so far as this argument is concerned, in my opinion, it is slightly besides the point because even if it is held that this Court can no longer take cognizance of matrimonial matters which would be decided by the Family Court, nevertheless, this court would continue to exercise its appellate jurisdiction.
30. Mr. Karim who also supported the submissions of Mr. Dada, referred to Section 5 of the City Civil Court Act, and contended that since the City Civil Court is deemed to be a court subordinate to and subject to the superintendence of the. High Court within the meaning of the Letters Patent, that shows that that Court and the High Court are distinct. This submission also appears to me to be somewhat besides the point under consideration because there is no doubt nor anybody has tried to suggest that the Family Court would not be a subordinate court to the High Court. However, there is considerable force in his next submission that when the City Civil Court was established, Clause 12 of the Letters Patent was correspondingly amended but no such amendment has been made with the enactment of the Family Courts Act. Mr. Karim submitted that the legislature must be deemed to have full knowledge of the matrimonial jurisdiction vested in this Court and of the fact that unless an amendment was made taking away that jurisdiction as was done after the establishment of the City Civil Court, it must be presumed that the legislature did not intend to include the High Court within the meaning of the District Court under Sections 7 and 8 of the Family Courts Act. This submission finds support from the B ombay High Court Letters Patent (Amendment) Act, 1948 (Act No. XLI of 1948) which came into force on 4th May 1948.
31. Lastly, Mrs. Anusuya Dutt, who, besides being an Advocate, has also been actively, connected with women welfare activities and who at one time possibly was a protagonist of the establishment of the Family Courts, found herself constrained to fall in line with the submissions of Mr. Dada, Mr. Mehta and others to support the proposition and to maintain that the matrimonial jurisdiction of this Court has not been impaired or taken away by the Family Courts Act in respect of parties who are Muslims and Jews.
32. I have taken a detailed survey of the arguments and the relevant case law which tends to support the proposition set out above. The purport of the arguments of the learned counsel in support is that the High Court on its Original Side exercises inherent jurisdiction in matters matrimonial by virtue of Letters Patent and not as a district court established by any statute, and that unless there is an express provision made by the legislature taking away or limiting its jurisdiction, the High Court continues to possess that jurisdiction. Thus, it is submitted that the High Court is not a district court within the meaning of Sections 7 and 8 read with Section 2(e) of the Family Courts Act even after taking into account Section 2(4) of the Civil Procedure Code, and that there is no law requiring the High Court to transfer matters of which it takes cognizance, and hence, in addition to the matters falling under the Indian Divorce Act and the Parsi Matrimonial Act under which special jurisdiction is conferred on the High Court, the High Court continues to be competent to take cognizance of matters matrimonial arising between Muslims and Jews and such matters pending in this Court are not liable to be transferred to the Family Court.
33. Now, the argument against the proposition is led by Mr. Palan. Mr, Palan canvasses the view that having regard to the objects, reasons and purpose for which the Family Courts Act has been enacted, all matrimonial matters relating to all communities irrespective of their personal laws or religious persuasion must now be dealt with by the Family Court. He submits that the Family Court established under Section 3 of the Act exercises jurisdiction over the local limits of the area to which its jurisdiction is extended by the State Government in consultation with the High Court and such Family Court exercises jurisdiction in the said area for the purposes of matters covered by Clauses (a) to (g) of the Explanation to Section 7 of the Act. He submitted that the emphasis is on the extent of jurisdiction over t he area for which the Court is established and the area may not necessarily and always coincide with the area over which an existing district court in the State may be exercising jurisdiction. The learned counsel referred to objects and reasons of the Act as well as the preamble of the Act in support of the above submission. It is submitted by Mr. Palan that all suits falling under Explanation to Section 7 of the Act, in whichever court they may be pending in the area under the jurisdiction of the Family Court established for that area, would stand transferred to the Family Court, In his submission, the provisions of Section 7 by their very nature have the controlling effect to determine the jurisdiction. According to the learned counsel, the question must be approached from the point of view that the Family Courts Act is related to "marriage" and "matrimonial relations" and "family affairs" arising from matrimonial relationship and that the provisions of Sections 7 and 8 of the Act when carefully analysed would clearly lead to the inference that all matters matrimonial fall within the ambit of the jurisdiction of the Family Court and consequently matters which were hitherto enter-tainable by the high court on its original side would be entertainable now by the Family Court and all pending matters would stand transferred to that Court.
34. Coming to the meaning of the phrase "district court" occurring in Sections 7 and 8 of the Act, the learned counsel submitted that having regard to the definition contained in Section 2(4) of the Code of Civil Procedure even the High Court on its Original Side exercising thematrimonial jurisdiction would be the 'District Court'. He relies on Clause (e) of Section 2 of the Family Courts Act, which provides that all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code. The definition contained in Section 2(4) of the Code of Civil Procedure has already been quoted above. Mr. Palan submits that the territorial limits of Greater Bombay over which the jurisdiction of the Original Side of the High Court extends is a 'District' as defined in Section 2(4). Therefore, according to him, it would be reasonable to assume that the Legislature intended that there should be only one District Court for this area. Mr. Palan further argues that there cannot be different District Courts dealing with the same type of subject-matter in the same area. That would be the result if it is held that the High Court on its Original Side is not a District Court and would continue to exercise matrimonial jurisdiction in certain matters. In that event the Family Court within the same district would also be dealing with similar matrimonial matters. According to the learned Counsel, to uphold such an arrangement would amount to giving rise to discrimination between citizens and citizens simply because they are governed by different personal laws. On that basis communities belonging to different religious persuasions will have to approach different Courts for similar purposes and this would be discriminatory, unconstitutional and invalid. According to the learned Counsel, after the advent of the Family Courts Act, even matrimonial matters arising under the Indian Divorce Act and Parsi Matrimonial Act also would be entertainable by the Family Court and not High Court. Mr. Palan argues that the provisions of the Act must be construed on the touchstone of the conslitutional guarantee of equality amongst the citizens.
35. Dealing with the two unreported decisions on which the learned Counsel in support of the proposition have relied, viz., Bai Vanchalabai's case decided by Shah J., (supra) and Mrs. Shirin Makani's case decided by K. K. Desai J. (supra), Mr. Palan submitted that Justice Shah has not analysed Clause 12 of the Letters Patent in all its perspectives and the decision of K. K. Desai J., itself makes it clear that whereas the High Court exercises jurisdiction in matrimonial matters amongst the Christians under Clause 35 of the Letters Patent, it exercises the jurisdiction in matrimonial suits relating to other communities under Clause 12 of the Letters Patent. Mr. Palan places very strong reliance on the decision of the Madras High Court in The Daily Calendar Supplying Bureau, Shivkasi, v. The United Concern, . It was followed by a Division Bench of this Court in , Mohan Meakings Ltd. v. Pravara Sahakari Sakhar Karkhana Ltd. In the Madras decision, it was held as follows:--
"Clauses 11 and 12 of the Letters Patent confer ordinary original civil jurisdiction to the High Court, over the Presidency Town of Madras, Bombay, etc. Therefore, the area of the Presidency Town will be a District as defined in S. 2(4) of the Civil P. C., 1908 and when the High Court exercises its original civil jurisdiction over the city limits, it can be deemed to be a District Court, in those cases where resort to the definition in S. 2(4) of the Civil P.C. is permissible for the purpose of fixing jurisdiction......"
That was a case which arose under the Copyright Act, 1957, Section 67 of that Act confers jurisdiction upon the District Court having jurisdiction within local limits of which the infringement of the copyright arises, to entertain suits in that respect.
36. The case Mohan M. Ltd. v. V.P.S. Karkhana (supra) arose under the Trade and Merchandise Marks Act, 1958. The plaintiffs in that case filed a suit alleging infringement of their trademark. Defendants denied that allegation. One of the issues that arose in that suit was as to whether the suit of the nature referred to in Section 105 of the Trade and Merchandise Marks Act, 1958, valuation of the suit being Rs. 50,000/- or less is triable by the High Court or City Civil Court, having regard to the definition of District Court in Section 2(4) of the Code of Civil Procedure. After noticing the definition of 'District Court' contained in Section 2(4) of the Code of Civil Procedure, the Division Bench examined that question. Reference was made to Clauses 11 and 12 of the Letters Patent of the Bombay High Court (as amended in 1948), and the provisions of the City Civil Court Act. the ruling in Pravin R. Geglani's case and in the unreported decision of this Court in Natyarlal Ramanlal Gandhi v. M/s. Zenith Iron Works, Suit No. 91 of 1960, decided on 31-7-1962 was also noted. It was observed that the controversy raised and settled in Pravin R. Geglani's case was altogether different and there was no occasion to consider the suits or the proceedings falling within Clauses (a) to (d) of Section 3 of the Bombay City Civil Court Act. No opinion however was expressed about the said decision as it had no application to the case on hand, It was observed :
"At this stage, it will be relevant to refer to Clause 12 of the Letters Patent which conferred ordinary original civil jurisdiction to the High Court over Presidency Towns of Madras, Bombay, etc. Therefore, the area of the Presidency Town will be a district as defined in Section 2(4) of the Code of Civil Procedure, 1908 and when the High Court exercises its original jurisdiction over the city limits of city of Greater Bombay, it is deemed to be a District Court. Section 9 of the Code of Civil Procedure gives power to every Civil Court to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred and Explanation 1 to that Section says that a suit in which the right to property or to offfice is contested is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of question as to religious rights or ceremony."
The Learned Judges then referred to the passage from the decision of the Madras High Court in the Daily Calendar Supplying Bureau's case which I have quoted above, and expressed that-
"We are in complete agreement with the principles laid down by the Division Bench of the Madras High Court."
Then, referring to the unreported decision of this Court in Natvarlal's case (supra), it was observed :
"Although the controversy in that suit was under the Patents and Designs Act, the expression 'District Court' used in that Act has not been defined, but, however, definition given under the Civil Procedure Code is made applicable in that behalf. The same analogy would equally apply to the present case also."
It was stated that upon reading all the relevant provisions :
"We are of the opinion that thejurisdiction of the Bombay City Civil Court so far as the suits falling under Sec. 105 of the Act are concerned, irrespective of the pecuniary valuation, are totally excluded and such a suit must be filed on the Original Side of the High Court. If such harmonious construction is not given, then in a given case it may lead to an anomalous situation."
Eventually it was held in answer to the question that arose in that case that the suit was triable by the High Court and not by the Bombay City Civil Court, inasmuch as the suit of the nature referred to in Section 105 of the Trade and Merchandise Marks Act 1955 irrespective of the pecuniary valuation is triable by the High Court and not by the Bombay City Civil Court so far as district of Greater Bombay is concerned.
The learned Counsel submitted that this decision does not say that the High Court is not a District Court but indicates that the definition contained in Section 2(4) of the Code of Civil Procedure could be applied where the expression is not defined in an Act and that being the position under the Family Courts Act, there should arise no difficulty in deeming the High Court as the District Court for the purposes of the said Act.
37. Elaborating on the theme that unless a liberal interpretation is placed upon the phrase "District Court" occurring in Sections 7 and 8 of the Family Courts Act, Mr. Palan submitted that the Family Courts Act should be looked upon as a piece of social legislation made in public interest for speedy resolution of matrimonial disputes which object is consistent with the constitutional doctrine of equality. He argues that the objects for which the legislation is made can be looked into as an aid for interpretation of the provisions of the statute and that the Court should lean in favour of constitutionality of a law consistently with its objects and if necessary, the Court must introduce a legal fiction to enable it to place a liberal interpretation thereon so that the objects of the Act can be achieved. He seeks support for this argument from the following rulings:
Kavalappara Kottarathil Kochuni v, States of Madras and Kerala, ; Kedar Nath Singh v. State of Bihar, AIR 1962 SC and M. K. Balkrishna Menon v. Asst. Controller of Estate Duty-cum-Income-tax Officer, Ernakulam, .
Mr. Palan vehemently argued that the legislature could not have intended only to transfer the cases relating to Hindus to the Family Court and leave other communities to pursue their remedies in the High Court. Hence, if the existence of two separate District Courts is recognised, then clearly there would arise discrimination amongst different classes of persons based on their personal law which is required to be avoided. He submitted that the Family Courts Act endeavours to prescribe special procedure for summary and speedy disposal of the matrimonial disputes and for endeavouring in the direction of conciliation between the spouses. This approach, according to him, is in keeping with the modern developments and psychological considerations.
38. Mr. Palan further submitted that with the enactment of the Family Courts Act it must be implied that the Parliament by necessary implication amended the Letters Patent of this High Court which it undoubtedly had the power to do under the Constitution and has conferred exclusive jurisdiction in matrimonial matters upon the Family Courts. He submitted that this impli-
cation should be extended to mean that even the Indian Divorce Act and Parsi Matrimonial Act stand amended: In short, according to the learned Counsel, the Family Courts Act is a complete Code within itself. Relying upon the decision in Fazlehussein Haiderbhoy Buxamusa v. Yusufally Adamji, , Mr. Palan tried to support the argument that the Letters Patent must be deemed to have been amended by necessary implication. Shah J., held in that case that in the event of a conflict between the Letters Patent and the Civil Procedure Code, the latter statute must prevail. The learned Judge has held that Clause 44 of the Letters Patent provides that the provisions of the Letters Patent are subject to the legislative powers of the Union Parliament. Reliance is also placed on the decision of the Supreme Court in Union of India v. Mohindra Supply Co., . While dealing wiht the provi-sions of the Arbitration Act, the Supreme Court was pleased to hold in that case thus:
"The Arbitration Act which is a consoli-dating and amending Act, being substantially in the form of a Code relating to arbitration must be construed without any assumption that it was not intended to alter the law relating to appeals. The words of the statute are plain and explicit and they must be given their full effect and must be interpreted in their natural meaning, uninfluenced by any assumptions derived from the previous state of the law and without any assumption that the legislature must have intended to leave the existing law unaltered. The legislature has made a deliberate departure from the law prevailing....."
39. Mr. Palan also placed reliance on two other decisions to contend that matrimonial suits are entertained by this Court under Clause 12 of the Letters Patent and not Clause 35. In Mt. Ayesha Bibi v. Subodh Ch. Chakravarty AIR 1949 Cal. 436, where the parties who were originally Hindus and were married according to Hindu rites of whom the wife became subsequently converted to Islam the ceremony of conversion having taken place at a mosque in Calcutta, it was held that the High Court had jurisdiction to entertain the suit by the wife for a declaration that the marriage has been dissolved, under Clause 12 of the Letters Patent.
40. In the case of Robasa Khanum v. Kohdadad Bomanki Iram AIR 1947 Bom 272, the Division Bench of this Court (Stone C.J. and Chagla, J.) took the view that Clause 12 of the Letters Patent confers original jurisdiction upon the High Court to try suits of every description and that expression is wide enough to include in it even matrimonial suits where parties cannot obtain relief by invoking the special matrimonial jurisdiction of the High Court. It was in this case that it was laid down that this country not being Islamic country and the Courts in India did not administer the laws of any particular community, the law applicable to the case was not the Muslim Personal Law but the case must be decided according to justice and right. In paragraph 13 of the judgment, a question was posed:
"Has the High Court the jurisdiction to try matrimonial suits on the Original Side?"
In that connection, it was observed that the Disssolution of Muslim Marriages Act does not set up any special Court and presumably the cases coming under that Act would be tried on the Original Side. It was also observed that Clause 12 of the Letters Patent confers original jurisdiction upon the High Court to try suits of every description and that expression is wide enough to include in it even matrimonial suits where parties cannot obtain relief by invoking the special matrimonial jurisdiction of the High Court. This view was followed by Madon J., (as he then was) in Mozello Robin Solomon v. R. J. 'Solomon, Suit No. 422 of 1967, decided on 5-8-1968, unreported. Parties in that case were Jews. Relying on this judgment (i.e. in Robara Khanums' case) Mr. Palan submitted that there arises a conflict between the views taken by Shah J., and by the Division Bench in this case and in view of this Division Bench judgment, it must be held that matrimonial jurisdiction relating to parties other than Christians, particularly Muslims and Jews, is exercised by this Court under Clause 12 and and not under Clause 35 of the Letters Patent. Consequently, according to the learned Counsel, keeping in mind the provisions of Section 15 of the Code of Civil Procedure as well as Section 2(4) of. the Code of Civil Procedure, there is no difficulty in saying that when the High Court on its Original Side entertained matrimonial suits under Clause 12, it was doing so as a District Court within the meaning of Sections 7 and 8 of the Family Courts Act. Mr. Palan also relied on a later decision of this Court in Dr. Pinhas Ezekil Silas v. Sally Pinhas Silas AIR 1983 Bom 262, in which case Mehta J., held that the High Court had jurisdiction to entertain the matrimonial disputes between the Jews under Clause 12 of the Letters Patent.
41. Mr. Palan tried to approach the question from yet another angle. Referring to clause (g) of Explanation to Section 7, he submitted that the matters of guardianship contemplated by the Clause are matters relating to minors where a natural guardian is concerned because that would be a matter relating to matrimonial relationship, and therefore even though the High Court may continue to entertain jurisdiction under Clause 17 of the Letters Patent in respect of minors where there is no natural guardian available, other guardianship matters would be congnizable by the Family Court. According to the learned Counsel, this also provides the clue to understand the real nature of the jurisdiction conferred upon the Family Courts under the Family Courts Act which is complete in itself and embraces all matters arising out of matrimony. Mr. Palan therefore urged that all matters matrimonial pending in this Court on the date on which the Family Court was established in Bombay, i.e. 7th October, 1989 must be transferred to the Family Court and this Court does not have jurisdiction to entertain such matters after the date.
42. Mr. P. L. Nain who supplemented the arguments of Mr. Palan, submitted that the provisions of Sections 7 and 8 of the Family Courts Act are very clear and confer exclusive jurisdiction in certain specified family matters on that Court and take away explicitly and expressly the jurisdiction of the High Court in such matters. He emphasised that Section 7 of the Act employs the expression 'shall' which shows that the transfer of pending cases is mandatory. He also referred to Section 20 of the Family Courts Act which provides that the provisions of the Act shall have overriding effecl notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. He submitted that the legislature must be deemed to have been fully aware of the definition contained in Section 2(4) and if the legislature wanted to make some different provision, it would have done so by making express provision and therefore there is no room to take the view that the High Court exercising jurisdiction on the original side is not a District Court within the meaning of that Section. Mr. Nain further submitted that by virtue of Section 7 of the Act even the jurisdiction exercisable by a Magistrate of First Class under Chapter IX of the Criminal Procedure Code has been conferred upon the Family Court and there can be no better illustration of what the legislature has intended in providing a forum in the shape of Family Court for dealing with all types of matrimonial disputes, and has clothed it with exclusive jurisdiction in that respect.
43. Drawing parallel from definitions contained in the Hindu Marriage Act, Com-panies Act and Bombay Public Trusts Act the learned Counsel submitted that since the jurisdiction of the High Court has not been saved by any express provision, it stands taken away. In his submission, the Civil Procedure Code does not merely prescribe procedure, but it also prescribes jurisdiction as would be clear from the provisions of Sections 9 and 15 to 22. Thus, when by Section 10 of the Family Courts Act, Civil Procedure Code has been made applicable to matters arising thereunder it means that the definition contained in Section 2(4) of the Code is applicable. Mr. Nain also placed reliance on the ruling in Daily Calendar Supplying Bureau v. United Concern, (supra).
44. Mr. N. M. Shah, Advocate, adopted the submissions made by Mr. Palan and Mr. Nain, and submitted that all pending matrimonial matters are liable to be transferred to the Family Court.
45. The submissions of Mr. Palan and Mr. Nain were sought to be replied by Mr. Dada. He submitted that it is necessary to remember the historical context of the matrimonial jurisdiction of the High Court. Referring to Clause 17 of the Letters Patent, he submitted that it clearly indicates that the High Court does not function as a District Court in guardianship matters and there is no dual connotation contemplated. He argued that the Family Court can never substitute the jurisdiction of the High Court exercisable under Clause 17 in matters of guardianship inasmuch as this jurisdiction is not confined to the territorial limits of jurisdiction of the High Court on the Original Side, but, it extends to the whole of the State. That, according to him, clearly suggests that the jurisdiction of the High Court is not taken away by the Family Courts Act. He submitted that there cannot be two different yardsticks applied for the purpose of determining the jurisdiction, one in respect of clauses (a) to (f) of the Explanation to Section 7 and another for clause (g). He emphatically argued that it is well eslablished rule that ouster of jurisdiction of the Court has to be inferred from clearest terms and not by inference or implication. Relying on certain passages from Craies on Statute Law', Seventh Edition, by S.G.G. Edgar, page 122, Mr. Dada submitted that the Court should be very slow to exclude the jurisdiction of a superior Court in the absence of outster of jurisdiction in clear terms made by the statute, and inasmuch as the High Court is a superior Court, its jurisdiction cannot be ousted by giving extended meaning to the provisions of Section 7 of the Family Courts Act. Mr. Dada also tried to suggest that the decision in Robasa Khanum v. Kho-dadad Bomanji Irani, AIR 1947 Bom 272 (supra), is not good law after the judgment of Shah, J., in Bai Vanchala's case (supra), since it was based on an overruled judgment. Mr. Dada submitted that no deeming fiction can be introduced in the interpretation of Section 7 of the Act. He maintained that the matrimonial jurisdiction of this Court has not been affected in the least by the Family Courts Act and there does not arise any occasion for any pending matrimonial matters being transferred from the Original Side of the High Court to the Family Court, Bombay.
46. I have set out above the submissions of the respective Counsel in great detail. I have also discussed some of the aspects touching the question under consideration in the light of the submissions of the Counsel. The arguments on either side are, indeed, formidable and contain great persuasive element. It has now to be examined as to which line of approach would be reasonable and rational to adopt. The question involved arises because the Family Courts Act does not define a District Court. Nothing could have been simpler than a provision being made in the Act to the effect that all matrimonial matters irrespective of the religious persuasion of the parties and irrespective of their personal law would hereafter be entertained exclusively by the Family Court, and all such matters pending on the material date in every Court shall stand transferred to the concerned Family Court (where one is established). This position raises questions of interpretation of the related provisions in the Act and the Civil Procedure Code. On the one hand the High Court is clothed with the special jurisdiction under the Letters Patent and on the other the legislature has been following a consistent practice of defining a 'District Court' for the purposes of different Acts to which reference has been made in the aforesaid narration of submissions of the Counsel. There is also a conflict of opinion arising from the Judgment of Shah J., in Bai Vanchala's case and the Division Bench Judgment in Robasa Kha-num's case (AIR 1947 Bom 272). In order to find out the true meaning of the expression "District Court', occurring in Sections 7 and 8 of the Family Courts Act, it will be useful to refer to the Statement of Objects and Reasons for which the Act has been brought forward. The position in that respect is, as held by the Supreme Court in Kavalappara Kottarathil Kochuni v. State of Madras and Kerala, , that although statement of objects and reasons is not admissible as an aid to the construction of a statute, it may be referred to for the limited purpose of ascertaining the purpose for which the Act has been made. The statement reads thus:
"STATEMENT OF OBJECTS AND REASONS:
Several associations of women, other organisations and individuals, have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th Report (1974) had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the Courts in adopting this conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family dis- putes."
This Statement emphasises two aspects, firstly, it was realised that despite the amendment of the Code of Civil Procedure providing for special procedure to be adopted in suits or suits relating to matters concerning the family, not much use has been made by the Courts in adopting the conciliatory procedure and the Courts continue to deal with the family disputes in the same manner as other civil matters and the same adversary approach prevails and consequently Family Courts have been established for speedy settlement of family disputes. That goes to show that one of the objects behind the Act was to bring about a material departure in the procedure that is being followed in resolving family disputes. That is why special procedure has been pres-
cribed under the Family Courts Act which is different from the procedure prescribed under the Code of Civil Procedure which has been characterised as 'adversary approach'. Secondly, it is emphasised that the Family Courts have been established in the public interest. The preamble of the Act makes it clear that it is -
"an Act to provide for the establishment of the Family Courts with a view to promote conciliation in, and secure speedy settlement, of disputes relating to marriage and family affairs and for matters connected therewith".
The first difficulty that stares in the face for accepting the line of approach putforth by Mr. Dada and other Counsel, in support of the proposition is that whereas the family Court would function consistently with the aforesaid objects with which the legislation has been brought forward and follow the simplified rules of evidence and procedure enabling it to deal speedily with a dispute, the High Court would continue to follow the same procedure as before which is adversary in nature. Such a consequence is inevitable if the High Court is not held to be a district court inasmuch as the procedure prescribed by the Family Courts Act would not apply to the matters tried by the High Court.
47. It is an important canon of interpretation that the words in a statute are to be construed in accordance with the intention of the law-maker. The intention, as can be deduced from the Statement of Objects and Reasons of the Act arid its preamble, is clearly to give a new shape to the procedure to be followed in resolving family and matrimonial disputes to which the Act applies, the emphasis being on simplification and conciliation. This new procedure displaces to its extent the existing procedure applicable to ordinary suits which by its very nature is dilatory and litigatory in character. It will be in the fitness of things to briefly note the procedure prescribed under the Act which would demonstrate that the emphasis placed by the legislature is upon conciliation and speedy settlement of the disputes.
48. By Section 3 of the Act, a Court is established for an area in a State comprising a city or town whose population exceeds one million. Section 4 deals with appointment of Judges of that Court but in sub-section (4)(a) of Section 4, an important indication is made by providing that in selecting persons for appointment of Judges -
"every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected."
Sub-clause (b) of that sub-section in terms provides that preference shall be given to women. Section 5 provides for the association of social welfare agencies in resolving the disputes to enable the Family Court to exercise its jurisdiction more effectively in accordance with purposes of the Act. Section 6 provides for appointment of counsellors to assist the Court in the discharge of its functions. Chapter IV prescribes the procedure to be followed under the Act by the Family Court. Under Section 9, a duty is cast upon the Court to make efforts for settlement of the dispute. Section 12 enables the Family Court to secure the services of a medical expert or such person (preferably a woman where available) including a person professionally engaged in promoting the welfare of the family for the purposes of assisting the Court in discharging the functions imposed by the Act. Section 14 liberalises the rigours of rules of evidence under the Evidence Act. Section 19 provides for an appeal against the final order of the Family Court in contested matters but what is pertinent to note is that it is prescribed that such appeal shall be heard by a Bench consisting two or more Judges. Section 20 gives an overriding effect to the provisions of the Act over anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law to the extent it is inconsistent with the Act. Thus, the scheme of the Act is clearly in the nature of making substantial departure from the procedure followed by ordinary Courts.
49. It is not as if only matters that were being dealt with by the Civil Courts that are now assigned to the Family Court but even matters over which criminal court was exercising jurisdiction relating to the order for maintenance of wife, children and parents under Chapter IX of the Code of Criminal Procedure, 1973, had been assigned to the family Court displacing that jurisdiction of the ordinary criminal Courts. Section 10 of the Act provides that apart from the special procedure prescribed under the Act, the rest of the procedure shall be followed in accordance with the Civil Procedure Cade or the Criminal Procedure Code as the case may be. Thus, the Act would take in its sweep matters arising under the Muslim (Protection of Rights on Divorce) Act, 1986, also.
50. In this context a note of the relevant rules that came to be framed under the Act may now be taken.
51. Rule 35 of the Maharashtra Family Courts Rules, 1987, framed by the State of Maharashtra, shows the intention of the legislature to require all the applications for guardianship and adoption to be ordinarily filed before the Family Court save and except such applications over which the High Court may still have jurisdiction. I shall discuss that aspect a little later. But the rule has its own significance in the context of the scheme establishing the special court viz., the Family Court for the purposes intended to be achieved by it. Similar to Rule 35 is the impact of Rule 50 of the Family Courts (Court) Rules, 1988 framed by the High Court. Rule 63 of the High Court Rules is a further indication of the fact that the Act is a social welfare measure. It provides that a copy of every guardianship order appointing a foreigner as a guardian shall be forwarded to the Ministry of Social Welfare, Government of India, and Social Welfare and Cultural Affairs Department, Government of Maharashtra, Mantralaya, Bombay. Those Rules also provide for procedure to be followed in case of applications by foreigners for guardianship and adoption under the law of the country where the foreigner resides. As against the aforesaid nature of special proce-
dure prescribed by the Act and the Rules made thereunder by the State legislature as well as by the High Court, when the matrimonial proceedings are entertained by the High Court as suits under Clause 12 of the Letters Patent, they are regulated by the ordinary procedure of suits which is regulated by the Code of Civil Procedure and Rules framed by the High Court on its Original Side. That procedure has proved to be dilatory and litigatory in nature and therefore it is what is called 'adversary approach'. Such approach itself is sought to be eliminated by establishing the Family Courts. Taking into account, therefore, the intention of the legislature in establishing the Family Courts, it appears to me that as the legislature intended to have the Act a wider application and not to restrict or confine it to any particular class of persons, the phrase 'district Court' occurring in Sections 7 and 8 requires to be liberally construed and interpreted. In this connection, it is significant to note that even though there will be uniformity of procedure followed by the Family Court while dealing with disputes amongst persons of different religious persuasion and belonging to different communities in the country, nevertheless, the parties would be governed by their own personat law except in matters governed by Special Marriage Act. Even though the Act does not travel to the extent of laying down a uniform Civil Code for all the communities and leaves that area untouched, yet, in the matter of procedure it aims at bringing about uniformity. It can be regarded as a major step in the direction of reform and uniformity. In this connection, as an aid to interpret the said Law consistently with its objects, it would be relevant to refer to Article 44 of the Constitution of India contained in the Chapter on Directive principles of State Policy. That Article provides that the State shall endeavour to secure for the citizens a uniform Civil Code throughout the territory of India. As has been explained by the Supreme Court, the object behind this Article is to effect an integration of India by bringing all communities on the common platform on matters which are at present governed by diverse personal laws but which do not form the essence of any religion, e.g., divorce; maintenance for divorced wife etc. To my mind, the Family Courts Act brings about a very fine admixture of procedure and partly substantive law (for instance, as regards guardianship and adoption) and thus a big stride is taken in the direction of fulfilment of the object of Article 44. A step forward is thus taken to provide common procedure so that parties belonging to different communities can uniformaly benefit from the same, where the emphasis is on conciliation and speedy settlement of disputes, in a more congenial, informal and homely atmosphere as compared to the surroundings and atmosphere in the Courts which by its very nature tends to introduce adversary element in the minds of the litigants. The climate supposed to prevail in the Family Court, the vailability of counselling by experts, the presence of qualified Judges interested in preserving the institution of marriage and promoting welfare of the children, absence of legal harangues and technicalities and elimination of delays would have great psychological impact upon the minds of the parties and would greatly contribute towards resolution of the very intimate personal family disputes satisfactorily providing greater opportunity for preserving the institution of marriage and for promoting the welfare of the children rather than drive them in the opposite direction.
52. With this approach, the submission of the Counsel opposing the proposition that if all matters do not go to the Family Court, then there may arise discrimination between parties and parties by reason of different sets of procedure being followed, assume considerable weight.
53. Another feature that helps in unravelling the true nature of the Act is the provision made therein for bringing before the same forum matters which were so far being dealt with by the Criminal Court but making those claims also subject to the special kind of procedure prescribed under the Act with emphasis on conciliation and speedy disposal.
54. The third angle from which the Act can be viewed is the provisions made in respect of guardianship and adoption. That is an important part of the Act. Clause (g) of Explanation to Section 7 speaks generally about the suits and proceedings in relation to the guardianship of the person or the custody of, or access to, any minor. Although the language of this Clause is unqualified and explicit, questions however may still arise as to whether such matters should be governed by the special laws which make provision in those respects such as Hindu Minority and Guardianship Act. Hindu Adoption and Maintenance Act and Guardians and Wards Act, 1890. The personal law of Muslims classifies the guardians under distinct categories as guardianship of person and guardianship of property of the minor.
55. Having regard to the language of Clause (g) of the Explanation to Section 7 of the Family Courts Act, it appears to me that all matters in relation to the guardianship of the person or the property of, or access to a minor are now cognizable by the Family Court, irrespective of the personal (sic) by which they are governed. It is pertinent to note in this connection, the Rules made by the High Court (Rules 50 to 65) which make elaborate provision in respect of applications made for guardianship and particularly where a foreigner is concerned. A Home Study Report is contemplated and it is required that the Court should be satisfied that the child can be legally adopted by the foreigner under the lawof his country. A bond is required to be executed by the foreigner for the return of the child in case of difficulty and the Court is also empowered to pass appropriate orders for financial security of the minor if found necessary. Provision is also made in respect of the guardianship of an abandoned child and the Court is required to be satisfied about the consent of the natural mother having been taken at the time of abandonment or thereafter. That indicates that even the High Court while framing the Rules had in its mind wider scope of clause (g) of the Explanation to Section 7. It is true that from the Rules it would not be correct to construe the provisions of the Act but I have referred to the Rules only as an aid to understand the true nature of Clause (g).
56. However, as has been argued with some force, Rule 35 of the Rules framed by the State Government and Rule 50 of the Rules framed by the High Court, both exclude guardianship petitions over which the High Court has jurisdiction from the purview of the Rules. Consistently with this nature of the said Rules, heavy reliance has been placed by the Counsel on clause 17 of the Letters Patent. The said Clause is reproduced below:--
"17. And we do further ordain that the said High Court of Judicature (at Bombay), shall have the like power and authority with respect to the persons and estates of infants, idiots, and lunatics within the Presidency of Bombay, as that which was vested in the said High Court immediately before the publication of these presents."
57. This Clause came to be considered by a Division Bench of the Madras High Court, In the matter of Patrick Martin, . I may usefully turn to the discussion in the judgment which is of direct relevance to the point under consideration. The Madras High Court was dealing with Sections 2(e), 7, 8 and 20 of the Family Courts Act read with Section 2(4) of the Civil Procedure Code in a matter relating to appointment of a guardian for an Indian female child where the application was made by a foreign national to be appointed guardian of the child. The Division Bench concluded that the jurisdiction of High Court in such matters is lost after establishment of Family Courts by the Act. The Court examined Clauses II and 17 of the Letters Patent, 1865 (which is common to Madras High Court and Bombay High Court. Clause 11 is common to both the High Courts and it confers general territorial original jurisdiction upon the High Court). The learned Judges say in para 7 of the report thus:--
"7. Learned Counsel for the appellants would point out that as per Cl. 11 of the Letters Patent dt. 28-12-1865 this High Court has got civil original jurisdiction of general nature with local limits which is analogous to the jurisdiction of a District Court and that X X X X X X In fact, he accepted that this Court cannot exercise any jurisdiction under Cl. 11 of the Letters Patent dt. 28-12-1865 in respect of matters covered by the Act from the time of the commencement of the Act. But his main contention was that this Court under the abovesaid Letters Patent possessed in addition to territorial general jurisdiction under Cl. 11, a special jurisdiction relating to infants and lunatics under Cl. 17, that such jurisdiction was not affected since the High Court in exercise of that jurisdiction could not be equated to a District Court and that S. 8 of the Act would not operate. He further added that jurisdiction once conferred could be taken away only by an express provision, that since S. 8 did not take away the special jurisdiction under Cl. 17, S. 20 of the Act would be also effectless."
The Court proceeded to determine this point, Precisely, on these lines have travelled the arguments of Mr. Dada and the learned Counsel supporting him. The Learned Judges of the Madras High Court referred to the corresponding Clause 16 of the Charter of the (earlier) Letters Patent of 1862 as well to the provisions in the Charter dated 26-12-1800 creating the (then) Supreme Court (since the jurisdiction vested under Clause 17 of the present Charter would be the same). They noted that when the different Clauses of the Charter of the Supreme Court and also the Charters which created British Courts prior to the Supreme Court, we find always a clear distinction, viz., on one side the British subjects and on the other the natives of the inhabitants (of Madras). Then the Court referred to the historical reasons for which such distinction existed. They concluded by saying that -
"Therefore, the jurisdiction of the High Court under Cl. 17 in the last Charter dt, 28-12-1865 which is the same as the one which the Supreme Court possessed is limited to British subjects and does not extend to others."
58. An attempt was made before the Court to argue that clause 17 of the Letters Patent of 1865 extends to Indians as well. Amongst decisions on which reliance was placed in support of that contention was the decision of this High Court in Julieta v. Lila Coutinho, . In the opinion of the Madras High Court, that decision deals only with the territorial extent of jurisdiction and was not helpful in deciding the point under consideration. The learned Judges noted that at the time of the Supreme Court there was a dual system of judicial administration; one for the British subjects and some other limited cases, and another for the natives; and the distinction was maintained even in the present Letters Patent granted by Charter of 1865. With this historical background, it was held that as per the well accepted norms of interpretation, the jurisdiction of Cl. 17 of the Charter dt. 28-12-1865 extended only to British subjects as was understood at the time of the Charter of the Supreme Court dt. 26-12-1800, and it was not open to natives. The learned Judges have said :
"In fact, Cl. 17 is a remnant of the dual system of judicial administration created in the interest of the colonial power"
and further:
"Pursuing the matter still further, we have to observe that even that jurisdiction of the High Court under Cl. 17 limited as it was to Britishers is no longer available even for them. No doubt, as per Art, 372 of the Constitution, all the law in force in the territory of India immediately before the commencement of the Constitution was to continue to be in force until altered or repealed or amended by a competent legislature or competent authority."
After referring to the observations of the Supreme Court in State of Madras v. C. G. Menon, , it is said:
"Similarly, in this case, India having become independent there cannot be a special forum for the Britishers in the matter of adoption. They have to subject themselves to the law of the land and therefore Cl. 17 of the Letters Patent dt. 28-12-1865 has no application whatsoever and has become a dead letter."
It is further held that even assuming that the jurisdiction of the High Court under Cl. 17 still existed, it would be (as per the appellants in that case) a jurisdiction of general nature applicable to all; then Section 15 of the Code of Civil Procedure will come into play, and (the appellants in that case) should approach the lowest grade Court competent, viz, the Family Court, and that the "proper forum for the parties in the matter is the Family Court wherever and whenever it is established, and till then the respective District Courts, with of course the right of appeal before this Court."
59. The Madras High Court has interpreted Clause 17 of the Letters Patent, which is applicable to this High Court also, on the basis of the earlier Letters Patent, after taking a historical perspective of the matter and was inclined to confine the Clause only to Britishers and to declare it a 'dead letter'. I would have thought it necessary to go into the question as to whether this is the correct approach to interpret Clause 17 or it should be construed on its plain language which does not mention 'British subjects' but, Justice J. C. Shah, in Bai Vanchala's case (M. Suit No. 1715 of 1949, D/- 13-9-1950) (supra) also had referred to the historical perspective in order to understand the true nature of Clause 35. Mr. Justice Shah did so after stating that "Now, in order to resolve this question to obtain a historical perspective of what the Matrimonial Jurisdiction of this Court is", and surveyed the development since the Year 1797 when the Recorders Courts were having jurisdiction over the Island of Bombay. Then he referred to the Charter creating the Supreme Court and analysed the extent of its jurisdiction. He further noted that the Supreme Court and the Sadar Diwani Adalat Court were abolished by the Indian High Courts Act, 1861, and the High Court of Bombay was constituted. He expressed the view that by reason of Section 106 of the Government of India Act, 1915, the jurisdiction of the several courts of Record was conferred or continued by the Indian High Courts Act, 1861, and that that jurisdiction in its turn continued by Sec. 223 of the Government of India Act, 1935, and the jurisdiction so vested has been again continued by Art, 225 of the Constitution of India. However, it is interesting to note that although Clause 35 employs the expression "subjects professing the Christian religion", whereas Mr. Justice Shah held that Clause 35 was not confined to the Christians, the Madras High Court in the aforesaid decision, after adopting opposite line of approach, has held that Clause 17 was confined only to British subjects when that Clause does not contain any reference to British subjects. The aforesaid decisions show that this Court as well as Madras High Court were inclined to place a broader construction upon Clauses 35 and 17 of the Letters Patent respectively so as to secure the ends of justice more, effectively.
60. In my view, it would be mote pragmatic and in tune with the social ethos of the present day to adopt interpretation of Clause 17 in a broader way and to hold that existing Clause 17 of the Letters Patent does not render the conferment of jurisdiction upon the Family Courts by Parliament any way inconsistent therewith.
61. That necessarily raises the question as to what are the matters that would continue to be cognizable by the High Court since both the body of Rules save guardianship petitions over which the High Court has jurisdiction. It is not necessary for me to examine this question elaborately as it does not directly arise for consideration, but, prima-facie, it appears to me that Clause (g) must be understood as primarily relating to questions of guardianship arising out of a matrimonial cause and not generally, consistently with the purpose of the Act. That is also clear from the fact that guardianship of property of a minor is not included in Clause (g). However, inasmuch as the Guardians and Wards Act 1890, defines the District Court by reference to Section 2(4) of the Code of Civil Procedure and as the Family Court is now invested with the jurisdiction that was exercised by a Court as a district court under that Act, petitions for guardianship of a minor when made by a person other than a natural parent or natural guardian of the child including in cases of adoption of a child by a foreigner as also in cases of abandoned children will lie to the Family Court, under that Clause. Even so some area is left uncovered by Clause (g) and in those matters High Court will undoubtedly continue to exercise its jurisdiction under Clause 17 of the Letters Patent. Broadly speaking, therefore, the position that appears to emerge can be summarised as under:
(a) All suits and proceedings wherein the question of guardianship of the person of any minor or his custody or access to him arises whether governed by any personal law or the provisions of the Guardians and Wards Act, (to that extent) would be cognizable by the Family Court if the matter arises within the area over which the jurisdiction is exercisable by the Family Court;
(b) Any matter as to adoption including by a foreigner where question of guardianship of the minor is involved would be cognizable by the Family Court, if the matter arises within the area over which jurisdiction is exercisable by the Family Court;
(c) Family Court would have no jurisdiction if the question involved relates to appointment of a guardian in respect of property of a minor whether under personal law or as a statutory or Testamentary guardian;
(d) Where question of appointment of a guardian for both purposes namely person and property of a minor is involved, the Family Court would have no jurisdiction as Clause (g) of the Act does not include proceeding in relation to property of a minor;
(e) All suits and proceedings in relation to the guardianship arising outside the territorial limits of the areas of the Family Courts but within the State of Maharashtra would be cognizable by the High Court under Clause 17 of the Letters Patent.
If the scope of Clause (g) of the Explanation to Section 7 of the Act is undestood in the aforesaid manner then the provisions of Sections 7 and 8 of the Act, section 2(4) of the Code of Civil Procedure read with Section 2(e) of the Act, Clause 17 of the Letters Patent, Rule 35 framed by the State Government and Rules 50 to 65 of the Rules framed by the High Court can be harmoniously read. It will not, therefore, be possible to accept the contention that by reason of the above-mentioned Rules no part of the jurisdiction of this Court under Clause 17 has been transferred to the Family Court.
62. I may once again usefully refer here to the judgment of the Madras High Court In the matter of Patrick Martin's case (supra). The Division Bench agreed with the view of the learned single Judge which was expressed thus:--
"The original jurisdiction of the High Court is not a normal jurisdiction of a High Court in the scheme of the Constitution; such original jurisdiction is a precarious one susceptible of being terminated at any time by a law of the appropriate legislature; such jurisdiction was allowed to continue as an interim measure till alternative arrangements were made, as per Art. 225 of the Constitution. He therefore concluded that the original jurisdiction which vested in the High Court in respect of minors had come to an end after the Family Courts Act, 1984, has come into effect."
I have however indicated above my own view of clause (g) taking into account certain aspects which do not appear to have been noticed by the Madras High Court in the aforesaid ruling.
63. It is common ground before me that the Letters Patent could be amended by the legislature. For that matter reference may be made to Bombay Act XLI of 1948 viz., the Bombay High Court Letters Patent (Amendment) Act, 1948 which amended the Letters Patent. Likewise, the matrimonial jurisdiction which the High Court was exercising whether under Cl. 35 or Clause 12 of the Letters Patent was curtailed by the Special Marriage Act and the Hindu Mar riage Act which came into force in 1954 and 1955 respectively by conferring the jurisdic tion under those Acts upon the City Civil Court, in so far as the City of Bombay was concerned. The State legislature also passed the Bombay (Transfer of Matrimonial Juris diction) Act, 1950 (Act XXVI of 1950) which introduced a provision by which although the High Court continued to entertain matri monial suits under its special jurisdiction, it could transfer those suits to the City Civil Court. That shows that the intention of the legislature was to require the lower Court to exercise such jurisdiction although the suits may have been filed in the High Court. A reference has already been made above to later Acts mentioned by the Counsel on either side which shows that consistently over the time the legislature has expressed an intention to confer the jurisdiction upon the District Court and lessen the burden of the High Court which it would have to carry otherwise under the Letters Patent. In this connection Proviso to Clause 35 of the Letters Patent is worthy of note.
64. In the light of the above discussion, I am inclined to interpret the words 'district Court' occurring in Sections 7 and 8 of the Family Courts Act in a wider sense. That does not come in conflict with the status of the High Court as superior and the Apex Court. Even assuming that the High Court may not be described as the district Court, it can certainly be held that it was exercising the same powers and same jurisdiction of the district Court if one were to exist in the city of Bombay prior to the establishment of the City Civil Court. In that sense, when this Court was entertaining suits between Muslim parties and Jews and even Hindus when the dispute did not fall within the confines of the Hindu Marriage Act, and was doing so to the same extent as the district Court would have done, taking away that jurisdiction and vesting it in the Family Court by enacting the Family Courts Act the Legislature cannot be said to have taken any step which comes in conflict with its inherent jurisdiction under the Letters Patent which is meant to be exercised in the absence of any other law. I am inclined to take the view that there is no reason not to hold the Family Court as a district Court within the meaning of Section 2(4) of the Code of Civil Procedure having regard to the context in which the Court has come to be established and the purpose for which it would exist.
65. The main thrust of the argument of Mr. Dada is that the special jurisdiction of the High Court under its Letters Patent (under clauses 35 and 17) is sacrosanct and could not be equated with the exercise of powers by a district Court. It is not possible to accept that view as the Letters Patent can be amended by the legislature. It would therefore be consistent with the scheme of the Act and its purpose and also in the public interest to take the view that the phrase 'district court' in Sections 7 and 8 of the Family Courts Act includes the jurisdiction that was being exercised by this Court on its Original Side in respect of matters covered by Clauses (a) to (g) of Explanation to Section 7. It is true, as submitted by Mr. Dada, that a Court would be zealous in guarding its own jurisdiction. Undoubtedly, this Court is the superior Court and its jurisdiction cannot be lightly tinkered with. However, times have changed. New dimensions of public interest and social reform arc emerging taking us in the direction of fulfilment of the obligations arising under Chapter IV of the Constitution of India. This Court cannot be oversensitive and feel touchy lover loss of its jurisdiction to entertain certain kinds of suits which cannot in any manner come in conflict with its position as the superior Court and a Court of Appeal.
66. It would be appropriate to take notice here of the recent legislation viz., the passage of Maharashtra Act No. XV of 1987 entitled as the Bombay City Civil Court and Bombay Court of Small Causes (Enhancement of Pecuniary Jurisdiction and Amendment Act, 1986". That Act provides the latest instance of "taking away of the original jurisdiction of this Court in certain respects and conferring it upon the City Civil Court. Could it be said that by doing so, the position of the High Court as the apex and superior Court has been lowered by the Legislature? The answer clearly would be in the negative. It is true that the Act has not come into force as yet, but the fact remains that it is on the anvil. The taking away of the original jurisdiction of this Court and conferment of the same upon the Family Court by the Family Courts Act stands on similar footing.
67. This judgment has been given in connection with the five matters in which none of the parties are either governed by the Indian Divorce Act or the Parsi Marriage and Divorce Act. I had. therefore, no occasion to fully explore the implications of the enactment of the Family Courts Act in relation to the Indian Divorce Aet and the Parsi Marriage and Divorce Act and matter's arising thereunder. I do not, therefore, express any final opinion in respect of jurisdiction exercisable under those Acts, I have only incidentally discussed the provisions of those Acts to enable me to determine the question on hand.
68. This discussion made so far leads me to take the following view:--
i) All suits and petitions falling under any of the Clauses (a) to (f) the Explanation to Section 7 of the Courts Act, 1984, excluding matters governed by the Indian Divorce Act, 1869, and Parsi Marriage and Divorce Act, 1936; which were cognizable by the High Court on the Original Side, in exercise of jurisdiction Under the Letters Patent, lie to the Family Court as from 7-10-1989, and the jurisdiction of the High Court stands excluded to that extent in relation to the area over which the Family Court, Bombay, exercises jurisdiction;
ii) No final opinion is expressed as regards matters matrimonial to which Indian Divorce Act and the Parsi Marriage and Divorce Act applies. Prima facie, such matters will continue to be cognisable by the High Court until jurisdiction in that respect is conferred by express statutory provision upon the Family Court;
iii) All suits and petitions of the description mentioned in Clause (i) above and pending in this Court (High Court) on the Original Side on 7-10-1989 and thereafter stand transferred and arc liable to be transferred to the Family Court, Bombay, under Section 8 of the Family Courts Act, 1984;
iv) However, each suit and/or petition will be required to be examined on merits after hearing the parties (unless they consent) to determine whether it falls under any of the Clauses (a) to (f) of the Explanation to Section 7 of the Family Courts Act and is required to be transferred to Family Court. If the cause does not fall under any of the aforesaid Clauses, it will continue to be entertained by the High Court;
v) Suits or petitions wherein matrimonial relief is not sought in the nature contemplated by any of the Clauses (a) to (f) of Explanation to Section 7 but is based on non-existence of matrimonial relationship such as where the marriage is denied or is alleged to be void will not be cognizable by the Family Court and will not be liable to be transferred from the High Court;
vi) Suits and petitions where relief of the nature covered by any of the Clauses (a) to (f) of Explanation to Section 7 of the Family Courts Act is sought only incidentally along with principal relief of general nature these will continue to be cognizable by the High Court and pending matters of such nature will not be liable to be transferred to the Family Court (e.g. share in a matrimonial home or maintenance is claimed in a suit for general partition of undivided Joint Hindu Family property).
vii) Petitions relating to guardianship falling under Clause (g) of Explanation to Section 7 of the Family Courts Act will be cognizable by the Family Court as explained earlier in Para 61 above;
viii) All suits and petitions relating to Muslim Women where the cause arises under the Dissolution of Muslim Marriages Act 1939, and Muslim Women (Protection. of Rights on Divorce) Act, 1986 as well as matrimonial causes amongst Jews are cogniz able by the Family Court and all such pending matters are liable to be transferred to the Family Court.
69. It would be relevant and useful at this stage to take note of few more decisions of this Court in the light of which I find fortified in taking the above view :
1) In Siona Nuriel Samuel v. Nuriel Nissim Samuel , where parties were Jews, Khatri J., has taken the view that matrimonial disputes arising under the Jewish Law fall under Clause 12 and not under Clause 35 of the Letters Patent. He negatived the contention that the State Legislature had no competence to enact Section 4A (of the Bombay City Civil Court Act) on the count that it purported to override the provisions of the Letters Patent' as being without substance;
2) In Rekapally v. Union of India 1986 Mah LJ 838, a Division Bench of this Court (M. M. Qazi and M. S. Deshpande JJ.) has held while construing provisions of Sections 14, 28 and 29 of the Administrative Tribunals Act, 1985 in the context of Articles 226 and 323 of the Constitution of India, that the provisions of the Act completely exclude the jurisdiction of the High Court under Article 226 of the Constitution;
3) In A.P Banerjee v. State of Maha-rashtra ATR 1988 (2) HC 334 (Bom) R. A. Jahagirdar J. has also taken similar view as in Rekapally's case (above at (2)).
These decisions show that the Legislature may by appropriate legislation take away the jurisdiction exercisable by the High Court even under the Constitution and confer the same upon a Court or Tribunal constituted for the purpose. The same principle can be adopted for holding that by enacting the Family Courts Act, the Legislature could and has taken away part of the matrimonial jurisdiction exercisable under the Letters Patent and confer it on the Family Courts. (It is not necessary to examine the provisions of the Administrative Tribunals' Act in detail. Suffice it to note that Section 14 of the Act prescribes the jurisdiction, powers and authority of the Central Administrative Tribunal in service matters mentioned therein and Section 28 excludes jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution, in respect of matters covered by Article 14).
4) In Julieta v. Lila Coutinho, , (referred to in the judgment in the matter of Patrick Martin , by the Madras High Court) it was held by this Court that for the purpose of Clause 17, the jurisdiction of the High Court would mean not merely the Ordinary Original Civil Jurisdiction, but would extend to the entire State of Maharashtra. I respectfully agree with the said decision and have followed it while examining the scope of Clause (g) of Explanation to Section 7 of the Family Courts Act, above. I do not agree with the view of the Madras High Court that it only deals with territorial extent of jurisdiction.
70. In the result, I hold that the Family Court established in Bombay on 7-10-1989 is the 'district Court' for the purposes of Sections 7 and 8 read with Section 2(e) of the Family Courts Act, 1984, for the area of the Municipal Corporation of Greater Bombay (vide Maharashtra Government Gazette dated 20-4-1989, Part 4-B, PP. 498-505 and dated 23-11-1989 Part 4-A, p. 1444) in respect of matters indicated in paragraph 68 above, and that, to that extent the jurisdiction of High Court stands excluded. I therefore answer the preliminary point in the negative.
71. The suits and petitions (mentioned in the title of this Judgment) are consequently adjourned for hearing to determine whether these fall under any of the Clauses (a) to (g) of Explanation to Section 7 and are required to be transferred to the Family Court under Section 8 of the Act or would continue to remain in this Court. That question will be decided in each matter separately after hearing the parties.
72. Order accordingly.