Karnataka High Court
Smt. Shashi Sharma Alias Seema vs Praveen Sharma And Another on 17 January, 1997
Equivalent citations: II(1998)DMC254, ILR1997KAR609, 1998(2)KARLJ671
Author: R.P. Sethi
Bench: R.P. Sethi
ORDER R.P. Sethi, C.J.
1. The strained husband and wife who are parties to this appeal, are in litigation which is pending in the Family Court at Bangalore. The appellant/wife has filed a suit for grant of various reliefs including the relief of maintenance. Upon her application, the Family Court had granted the temporary injunction against the respondent-husband restraining him from alienating the two plaint-schedule properties or subjecting them to any encumbrance pending disposal of the suit. Aggrieved by the order of temporary injunction the respondent-husband filed a writ petition in this Court with prayer for quashing the order of the Family Court. Vide the order impugned in this appeal the learned Single Judge modified the order of the Family Court with direction that the said injunction will continue with respect to the residential house of the respondent-husband, but in regard to the shop he was permitted to sell the same subject to the condition of deposit and production of original fixed deposit receipt of Rs. 5,00,000/- into the Court to be dealt with as per further orders of the Family Court. It was further directed that the respondent shall not secure or create any lien or charge over the said fixed deposit of Rs. 5,00,000/-. The appellant was however given liberty to move the Family Court for any interm maintenance in accordance with law.
2. Before hearing the arguments we directed the production of parties in the Court for the purposes of reconciliation. Despite best efforts there has not been any compromise between the parties.
3. The learned Counsel appearing for the appellant has submitted that the learned Single Judge was not justified in allowing the writ petition and modifying the directions in exercise of the jurisdiction under Article 226 of the Constitution of India. It is further contended that the facts and circumstances of the case did not warrant the modification of the interim injunction granted by the Family Court. The exercise of the jurisdiction by the learned Single Judge has been stated to be contrary to the established principles Of law governing the grant, refusal and modification of the temporary injunctions granted in terms of Order 39, Rules 1 and 2 of the Civil Procedure Code.
4. Dealing with the later contention first we feel that if the Court had the jurisdiction, the learned Single Judge had all powers to modify the temporary injunction for protecting the interests of the parties. It can be said that the modification of the temporary injunction has perhaps not adversely affected the interests of the appellant who had sought the temporary injunction for protection of her rights in a suit wherein the main relief claimed was that of maintenance. However, the important question posed before us is the question of jurisdiction and the scope of Article 226 in relation to the interim orders passed in proceedings under the Family Courts Act.
5. The Family Courts Act, 1984, (hereinafter called the 'Act') was enforced w.e.f. 14-9-1984. The Act was enacted to provide for the establishment of Family Courts with a view to promoting conciliation in, and securing speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. In the statement of objects and reasons, it was stated:
"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 disputes.
2. The Bill inter alia, seeks to.--
(a) provide for establishment of Family Courts by the State Governments;
(b) make it obligatory on the State Governments to set up a Family Court in every city or town with a population exceeding one million;
(c) enable the State Governments to set up, such Courts in areas other than those specified in (b) above;
(d) exclusively provide within the jurisdiction of the Family Courts the matters relating to.--
(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a marriage or as to the matrimonial status of any person;
(ii) the property of the spouses or either of them;
(iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor;
(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure;
(e) make it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will he informal and the rigid rules of procedure shall not apply;
(f) provide for the Association of Social Welfare Agencies, Counsellors, etc., during conciliation stage and also to secure the services of medical and welfare experts;
(g) provide that the parties to a dispute before a Family Court shall not be entitled, as of right, to be represented by legal practitioner. However, the Court may, in the interest of justice, seek assistance of a legal expert as amicus curiae;
(h) simplify the rules of evidence and procedure so as to enable a Family Court to deal effectually with a dispute;
(i) provide for only one right of appeal which shall lie to the High Court".
6. Chapter II of the Act deals with the establishment of Family Courts, appointment of Judges, Association of Social Welfare Agencies, etc., Counsellors, Officers and other employees of Family Courts. Chapter III deals with jurisdiction. Chapter IV prescribes the procedure for dealing with the cases filed in the Family Courts. Chapter V deals with appeals. Under Section 19 appeal is maintainable against every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. A perusal of the relevant provisions of the Act unambiguously leads to the conclusion that no provision has been made for filing of an appeal or revision against an interlocutory order passed by the Family Court. In the absence of a provision to the contrary, no party acquires a right to approach the Higher Court by way of appeal or revision. The appeals under the Act are maintainable only against the final orders. It is settled position of law that an appeal is a statutory right which may not be conferred upon a party unless special provision is made under law for filing of such an appeal.
7. Under identical circumstances in a case under the Motor Vehicles Act where no provision is made for filing an appeal against the interim order, it was held by one of us (Sethi, J.) in Janak Raj v Union of India and Others, that:
"The appeals are, therefore, maintainable against the awards passed in terms of Section 110-B of the Act and not the orders under Section 92-A of the Act. It is well-settled proposition of law that an appeal is a statutory right which cannot be conferred upon a party unless a special provision is made under law for filing such an appeal. A Division Bench of this Court while disposing of C.F.M.A. No. 1 of 1987 entitled Oriental Fire and General Insurance Company Limited v Maya Devi, refused to entertain the appeal holding an order passed under Section 92-A of the Act to be an interim order, not appealable. Similarly, this Court dismissed C.F.M.A. No. 74 of 1986 and held:
"Section 92-A of the Motor Vehicles Act is a piece of beneficial legislation and while interpreting the same it is to be liberally construed. The object of the section cannot be defeated on hypertechnicalities. In this case I find that since sub-section (1) of Section 92-A of the Motor Vehicles Act provides for 'joint and several' liability the appellant cannot be heard to make a grievance of the interim award made by the Motor Accidents Claims Tribunal, Jammu, particularly when it is not disputed that the claimant suffered a permanent disablement as a result of the accident in which the vehicle insured with the appellant was involved".
Another Bench of this Court held in Oriental Fire and General Insurance Company Limited v N.D. Danial Stores :
"The provisions of Section 92-A are meant for consideration of granting an interim relief ex gratia to the legal representatives of the deceased or to the claimant, as the case may be. This part of legislation being based on socio-economic conditions of the citizens is a beneficial piece of legislation, which is not made subject of appeal under Section 110-D of the Motor Vehicles Act. This Court in a Division Bench as well as in the Single Bench has held the view that an appeal is not entertainable against the interim relief granted under Section 92-A of the Motor Vehicles Act".
It was again held in National Insurance Company Limited v Gurmeet Singh, that no appeal was maintainable against an interim order passed under Section 92-A of the Act".
8. Under Article 226 of the Constitution of India the remedy being discretionary the High Court would not ordinarily grant relief where there exists alternative remedy equally efficacious and adequate. Remedy under Article 226 of the Constitution cannot be permitted to be availed of for the purposes of frustrating the welfare legislation or allowed to be an appeal in disguise. The Article is not intended to circumvent the statutory procedure. Where the petitioner is shown to have remedy of challenging the final order by way of appeal, the High Court would normally not exercise its jurisdiction under Article 226 of the Constitution. While dealing with the scope of Article 226 of Constitution, in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v Dunlop India Limited and Others, it was held:
"Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. The Supreme Court can take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice needs to be strongly discouraged".
9. It is true that there is no absolute bar on the exercise of writ jurisdiction by the High Court in any case but before exercising such jurisdiction self imposed restraints are required to be taken note of. The Court may decide to exercise its jurisdiction where it is found that the order impugned was without jurisdiction or apparently contrary to settled position of law or was likely to result in miscarriage of justice or tantamounted to the abuse of process of Court or had been obtained by suppression of material facts or any other circumstance which shocks the conscience of the Court. The mere fact that the impugned order was harsh or likely to prejudice the interests of one of the parties would not be a ground for interference in exercise of the writ jurisdiction. The High Court would not be justified to entertain the plea of financial stringency allegedly being faced by the person approaching the Court. While exercising the jurisdiction and issuing a writ of certiorari, the High Court should keep in mind the conditions precedent under which such writ can be issued. The Apex Court in Hari Vishnu v Ahmad Ishaque, referred to such conditions and held:
"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a Superior Court were to rehear the case on the evidence and substitute its own findings in certiorari -- , , and , rel. on".
10. In Naresh Shridhar Mirajkar and Others v State of Maharashtra and Another, it was held:
"Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes up the matter before the Appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens. Just as an order passed by the Court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court so could a judicial order collateral to proceedings but directly connected with the proceedings be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties or is passed incidentally to make the adjudication of the dispute between the parties fair and effective, AIR 1955 SC 191, expl., , dist. and , rel. on.
If the test of direct effect and object which is sometimes described as the pith and substance test, is applied in considering the validity of legislation, it would not be inappropriate to apply the same test to judicial decisions. If a judicial order is passed by the Court in exercise of its inherent jurisdiction and its sole purpose is to help the administration of justice then any incidental consequence which may flow from the order will not introduce any constitutional infirmity in it".
11. It is worth noting that the respondent-husband has not alleged and the learned Judge did not find violation of any fundamental right in the case on account of the passing of the temporary injunction. The order of the Family Court was not found to be without jurisdiction or being contrary to law or resulting in miscarriage of justice. The grounds of the writ petition indicate that the pleas raised were such pleas which could have been adjudicated only in an appeal and not in exercise of the writ jurisdiction. If the High Court decides to interfere with the interim orders passed by the Family Courts, the same is likely to frustrate the provisions of the Act which are intended to achieve a social object as is evident from the statement of object and reasons and the various provisions noticed herein above. No writ petition is therefore maintainable against the interim orders passed by the Family Court unless the same is shown to be in violation of the conditions noted herein above.
12. It appears that the question of jurisdiction though raised in the statement of objections was not canvassed before the learned Single Judge, with the result that the impugned order was passed. The failure of the appellant's Counsel to appear before the learned Single Judge can be a circumstance which resulted in the passing of impugned order. No premium can be given to the appellant or her Counsel for non appearance in the Court at the time of hearing but because the question of jurisdiction is involved in this appeal which is likely to affect number of cases in future, we have opted to decide the appeal on merits.
13. Under the circumstances the appeal is allowed by setting aside the order of learned Single Judge with the result that the temporary injunction granted by the Family Court shall be revived. It has been brought to our notice that after the order of the learned Single Judge, the respondent has sold shop with respect to which the temporary injunction was vacated. The overt act of the respondent would not prevent the Family Court from enforcing the rights accruing under law either by directing the restoration of the property or by impleading the vendee of the shop as party to the suit or appropriately moulding the relief by adequately protecting the interests of the appellant herein. The appellant is also entitled to costs at the rate of Rs. 2,000/-.