Madras High Court
Sudha Ramalingam vs Registrar General on 15 April, 2014
Bench: N.Paul Vasanthakumar, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-04-2014 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P.No.30236 of 2013 M.P.No.1 of 2013 Sudha Ramalingam ... Petitioner Vs. 1. Registrar General, High Court of Judicature at Madras 2. State of Tamil Nadu, rep.by Principal Secretary, Home (Courts-II) Department, Secretariat, Chennai. 3. Women Lawyers Association (Regd), rep.by its Secretary, High Court Campus, Chennai 600 104. 4. Shaikh Mehrunisa, Advocate, E1, Kamlesh Enclave, 101A Baraka Road, Kilpauk, Chennai 10. 5. Tamil Nadu Federation of Woman Lawyers, High Court Buildings, Chennai- 600 104. rep.by its President K. Santhakumari. ... Respondents (R-3 impleaded as per order of the Court dated 8.11.2013 in M.P.No.2 of 2013) (RR-4&5 impleaded as per order of the Court dated 19.11.2013 in M.P.Nos.3 & 4 of 2013) Writ Petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of declaration, declaring the functioning of the Holiday Family Courts at Chennai as illegal, unconstitutional, discriminatory and ultra vires of the Family Courts Act. For Petitioner : Ms.Geetha Ramaseshan For 1st Respondent : Mr.V.Vijayasankar For 2nd Respondent : Mrs.A.Sri Jayanthi, Special Government Pleader For 3rd Respondent : Mr.S.Prabhakaran for Ms.D.Prasanna O R D E R
N.PAUL VASANTHKUMAR,J This writ petition is filed as Public Interest Litigation by a practising Advocate, praying for issuance of a writ of declaration, declaring the functioning of the Holiday Family Courts at Chennai as illegal, unconstitutional, discriminatory and ultra vires of the Family Courts Act.
2. The case of the petitioner is that Holiday Family Courts were inaugurated on 10.7.2010 at the instance of the High Court, due to which the Advocates practising before the Family Courts in Chennai, who are permitted to appear for the parties, including Amicus Curie in various cases with the permission of the Presiding Officers of the Family Courts, are put to great hardships as the Advocates are unable to meet their professional and family commitments. A memorandum to that effect was submitted to the Hon'ble the Chief Justice to withdraw the order constituting Holiday Family Courts in Chennai. Various resolutions were passed by the Women Lawyers Association expressing their difficulties in this regard and the same having not been fructified, this writ petition is filed by contending that Rule 3 of the Family Courts Procedure Rules, 1996 empowers the Family Court sitting on Holidays and outside normal working hours, if the Judge considers it necessary to do so in the circumstances of the case, with prior notice to the parties or those representing the parties, and such person or persons as the Judge may consider necessary, and as per Section 21 of Family Courts Act, 1984, the High Court is empowered to make Rules, as it may deem necessary, for carrying out the purposes of this Act.
3. In short, the contention of the petitioner is that functioning of the Holiday Family Courts in Chennai is without any legal sanction and the decision to have Holiday Family Courts at Chennai is causing hardships, mental agony and various other difficulties to the Family Court Legal Practitioners.
4. The Registrar General, High Court has filed counter affidavit on 7.1.2014 opposing the prayer stating that the Holiday Family Courts were started functioning as per the administrative decision of this Court, which was taken bearing in mind the public interest i.e. for the benefit of litigants and about 25% more cases are disposed of after the Holiday Family Courts started functioning in Chennai. The particulars about the disposal of cases in Holiday Family Courts in Cennai are also mentioned stating as follows:
2010 .. 629 2011 .. 539 2012 .. 952 2013 (till November) .. 459
Holiday Family Courts are functioning for speedy disposal/settlement of family disputes, which are vested with jurisdiction to deal with the matters covered under Section 7 of the Family Courts Act, 1984. The Legal Practitioners permitted by the Family Court, are primarily to do conciliatory efforts and as a matter of right they cannot practise as counsel for the parties, and such permission is required to be given by the Family Court Judge under proviso to Section 1e of the Act. The 13th Finance Commission suggested various steps to have morning/evening/holiday Courts and allocated funds for the period from 2010 to 2015 to the State of Tamilnadu and pursuant to that 90 Evening Courts were sanctioned in 30 Districts. Functioning of Holiday Family Courts in Chennai from 10.7.2010 has got appreciation from the litigants and the Government of Tamil Nadu also sanctioned additional honorarium to the Family Courts Judges and staff working in Holiday Family Courts on the basis of the request made by the High Court through G.O.Ms.No.984 Home (Courts-II) Department, dated 25.11.2010. The High Court having control and supervision over the Family Courts under Article 235 of the Constitution of India decided to have holiday sittings of Family Courts in Chennai City. High Court is considering the request of the Women Lawyers Association for declaring Holidays/Vacations including Family Courts, and there is no illegality in the functioning of Holiday Family Courts in Chennai.
5. Ms.Geetha Ramaseshan and Mr.S.Prabakaran, the learned counsel appearing for the petitioner as well as impleaded respondents submitted that the functioning of Holiday Family Courts at Chennai has no legal basis and by not declaring holidays/vacation to Family Courts in advance, advocates engaged as Conciliator/Amicus Curiae are affected, and therefore appropriate directions may be given by this Court.
6. The learned counsel appearing for the High Court on the other hand submitted that the High Court having been vested with the control over the Subordinate Courts under Article 235 of the Constitution of India, is empowered to decide about the working days, holidays, working hours to all Courts including Family Courts, and the same cannot be questioned by the petitioner or by the respondents 3 to 5, and the High Court introduced the Holiday Family Courts at Chennai for the benefit of the litigants, and there is no illegality in the functioning of the Holiday Family Courts in Chennai. The learned counsel also submitted that the request of the Women Lawyers Association was considered favourably to the maximum extent to declare holidays during vacation and festival days as and when representations are received.
7. The learned counsel appearing for the High Court submitted that the during pendency of this writ petition, the High Court on its administrative side considered the request of the Women Lawyers Association and decided to restrict the sittings of Holiday Family Courts at Chennai on Saturdays only with effect from 11.3.2014, which was intimated to the Principal Judge, Family Courts, Chennai, through Official Memorandum in Roc.No.2456-A/2010/F1, dated 11.3.2014 and the petitioner and the Associations are not justified in pressing the writ petition now. The learned counsel for the petitioner at this stage submitted that Amicus Curiae/Conciliators may be permitted to appear by giving express consent, either by the parties or by the respective counsel before posting cases on Holiday Family Courts in Chennai and, if such procedure is directed to be followed by Holiday Family Courts, the posting of cases on Holiday Courts would solve the major problem and the petitioner as well as the members of the 3rd and 5th respondents Lawyers Association and the 4th respondent are willing to appear before the Holiday Family Courts for matters, which are posted by consent Holiday Family Courts at Chennai.
8. We have considered the rival submissions made by the learned counsel for the respective parties.
9. It is not in dispute that High Court is having administrative and Supervisory power over the Courts subordinate to it including the Family Courts under Article 235 of the Constitution of India. Article 235 of the Constitution of India reads thus:-
"235. Control over subordinate Courts.- The total control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."
10. The word "control" in Article 235 of the Constitution of India has been used in a comprehensive sense and includes control and superintendence of the High Court over the Subordinate Courts and the persons manning them on the judicial and the administrative side. In this case, power of exercised by the High Court is its administrative power, which confer such power to ensure independence of judiciary. The said position is made clear in the decisions of the Hon'ble Supreme Court, reported in (1998) 3 SCC 72 [High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal]; (1999) 7 SCC 725 [Registrar (Admn.) High Court of Orissa v. Sisir Kanta Satapathy and (2007) 1 SCC 1 [Parkash Singh Badal v. State of Punjab].
11. On a reading of Article 235 of the Constitution of India, it is apparent that control of the High Court over the Subordinate Courts is absolute. Section 21 of Family Courts Act, 1984 empowers the High Court to make rules for carrying out the purposes of this Act and the State Government is vested with the powers to make rules only in consultation with the High Court to carry out the purposes of this Act under Section 23 of the Family Courts Act, 1984. The High Court in exercise of that constitutional power is finalising the Calendar for Subordinate Courts every year and the same is not disputed by the petitioner and the respondents 3 to 5.
12. By reading of Article 235 of the Constitution of India read with the objects of the Family Courts Act, 1984 and Sections 21 and 23 of the Act, we are of the firm view that the jurisdiction of this Court to notify that Family Courts in Chennai will function on holidays is having legal sanction and want of jurisdiction alleged by the petitioner in that respect is unsustainable.
13. The Family Courts Act, 1984 was enacted with a view to promote conciliation and secure speedy settlement of family disputes and disputes relating to marriage and family affairs and in the matters connected therewith. Only with a view to speed by settle the disputes and considering the fact that in Chennai city large number of persons filing family disputes are in employment, this Court thought fit that functioning of Family Courts on holidays would be more convenient for the litigants and it was also welcomed by the litigants and also proved as successful from the data furnished by the Registry regarding the number of cases disposed in Holiday Family Courts.
14. The learned counsel appearing for the petitioner as well as the respondents 3 to 5 during their submissions expressed their satisfaction for restricting the Holiday Family Courts to Saturdays only and suggested to post Family Court matters only by consent of the parties or by counsels. This Court is of the view that the petitioner and respondents 3 to 5 can submit representation to that effect to this Court on administrative side i.e. praying for issuing directions to the Presiding Officers of the Holiday Family Courts to post cases/family disputes in Holiday Family Courts only after filing memo signed by the parties to the proceeding or by the counsel, who are representing/assisting the parties to the proceedings. No such request was made by the petitioner/Associations so far. Hence, liberty is granted to make such representation before the Registrar General, who in turn will place it for considering the same and take a decision on this aspect administratively.
15. The learned counsels also submitted that this Court is promptly considering the request of the Bar for declaring festival holidays and vacations of Holiday Family Courts. However the same being declared just prior to the Holiday/Vacation, the same is causing inconvenience to the members of the Bar. This Court on going through the Files, noticed the fact that the association is making such requests at the last moment i.e, just prior to the commencement of the vacation or holidays and therefore the petitioner and the Association are not justified in blaming the High Court for such belated announcements. At this stage the learned counsels submitted that hereafter representations to the High Court will be made well in advance for taking early decision regarding the declaration of festival holidays and vacations to the Holiday Family Courts. The said submission is recorded.
16. The writ petition is disposed of accordingly. No costs. Connected miscellaneous petition is closed.
(N.P.V.,J) (M.S.N.,J.)
15-04-2014
Index :Yes/No
Internet :Yes/No
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To
1. The Registrar General,
High Court of Judicature at Madras.
2. The Principal Secretary, Home (Courts-II) Department,
Secretariat, Chennai.
3. The Secretary, Women Lawyers Association (Regd),
High Court Campus, Chennai 600 104.
4. The President, Tamil Nadu Federation of Woman Lawyers,
High Court Buildings, Chennai- 600 104.
N.PAUL VASANTHAKUMAR,J
AND
M.SATHYANARAYANAN,J
vr
Pre-Delivery Order in
W.P.No.30236 of 2013
15-4-2014