Allahabad High Court
Anil Bahal vs Smt. Manju on 25 August, 1988
Equivalent citations: AIR1989ALL9, AIR 1989 ALLAHABAD 9, (1989) 1 HINDULR 479, (1989) 1 HINDULR 272, (1989) 1 DMC 143, (1989) 1 DMC 336, (1989) MATLR 59, (1988) ALL WC 1307, (1989) 1 CURCC 349
Author: A.P. Misra
Bench: A.P. Misra
ORDER A.P. Misra, J.
1. The present revision is directed as against an order dated 8th January, 1985, passed in a suit for divorce filed by the respondent in which maintenance was granted to the respondent in the said proceedings.
2. In revision, the grounds raised were that the Court below committed material irregularity in passing the impugned order without giving any specific finding with regard to the income and means of the applicant and without considering other matters. It has been brought to the notice of this Court that a compromise has been arrived at in the Family Court constituted under the Family Courts Act, 1984, which has been annexed as Annexure I to the rejoinder affidavit and by virtue of that compromise the suit for divorce is to be decreed. In view of the Family Court being established the proceedings pending in various Courts including the one impugned in the present suit stands transferred to the said Family Court by virtue of Section 8 of the said Act.
3. It is relevant to refer to the various provisions of the aforesaid Family Court which was established with the object that the said Family Courts ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should further make reasonable efforts at settlement before the commencement of the trial. Keeping this object in mind the Family Court was invested with special jurisdiction under Section 7 of the Act. Explanation to Section 7(1) provides that the suits which are cognizable by the Family Court include suits or proceedings which include a suit for dissolution of marriage. Section 8 gives exclusion of jurisdiction and pending proceedings and lays down that where such proceedings are pending shall stand transferred to the Family Court. Under it, it is provided that where a Family Court has been established for any area no district Court or any subordinate Civil Court shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature preferred to in the Explanation to Section 7(1), while under Section 8(c) it is provided that if such suit which is pending immediately before the establishment of such Family Court before any district Court or subordinate Court shall stand transferred to such Family Court on the date on which it is established. Section 9 provides duty of the Family Court to make efforts for settlement. Section 11 provides the proceedings to be held in camera. Section 19 provides an appeal, save as provided in Sub-section (2), 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. Under Sub-section (2) no appeal is provided where a decree is passed with consent. Sub-section (3) provides the period to file certain appeal, while Sub-section (5) provides that an appeal preferred under Sub-section (1) shall be heard by a Bench consisting of two or more Judges. Sub-section (4) specifically refers that except as provided in the said sub-sections no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court. It is thus clear that any judgment and order passed by the Family Court is appealable to the High Court except one which is on consent and interlocutory order.
4. It is also significant that in the present case, it has been clearly stated, which has not been denied, that the Family Court was established in October on 9th October, 1986, whereas the present suit for divorce is pending in the subordinate Court Admittedly, in view of Section 8 of the aforesaid Act the suit stands transferred to the Family Court on that date and it is the Family Court which had jurisdiction to decide the suit on merits and not the District Court where the suit is pending.
5. Without going into other matters in this case it is significant to refer to Annexure 1 to the rejoinder affidavit which is said to be a compromise arrived at between the parties in a proceeding under Section 125, Cr. P.C. before the Family Court in Case No. 172 of 1986 which refers to various proceedings which are pending between the parties and also spells out its consequences. However, so far in terms of the said compromise no order has been passed by the Family Court in the present suit in which the present impugned order has been filed before this Court. It is significant looking to the very spirit of the Family Court and the object of its creation is to bring about settlement in respect of family disputes including the one which has given rise to the present revision for maintenance to be adjudicated in a congenial atmosphere in a Court specially constituted for the purpose. Admittedly, this suit was pending in the Court below on a date when the Family Court was constituted. However, in view of the Family Court having been established in the district of Kanpur and between the parties a compromise having been arrived at it is just and proper that the said Court should apply its mind to the question of maintenance inter se between the parties in the light of the said compromise afresh, rather than exercising power by this Court in its revisional jurisdiction.
6. Learned counsel for the respondent in this case, urged that the compromise speaks about maintenance of the wife and the daughter for future but she is entitled for a maintenance prior to that period. This plea raised by the respondent shall also be looked into and gone into by the Family Court in deciding the matter regarding the maintenance which was already ordered prior to the coming into force of the said compromise.
7. In view of the fact that now the suit itself stands transferred under Section 8 of the Family Courts Act, 1984, to the Family Court, and further the fact that since compromise having been arrived at by the parties in a proceeding under Section 125, Cr. P. C. which refers to other proceedings it is fit and proper that the case is sent back to the Family Court for adjudicating the matter afresh in accordance with law in the light of the observations made above.
8. Accordingly, the present revision is partly allowed and the impugned order dated 8th January 1985 is set aside and the case is sent back to the Family Court for deciding the matter afresh in the light of the observations made above in accordance with law. Since the matter is pending since long it is hoped the Family Court shall decide the matter expeditiously. Costs on parties.