Patna High Court
Smt. Usha Kumari vs Principal Judge, Family Court And Ors. on 31 July, 1997
Equivalent citations: AIR1998PAT50, AIR 1998 PATNA 50, (1998) 2 MARRILJ 299, (1997) 2 PAT LJR 472, (1997) 2 BLJ 474
Author: A.K. Ganguly
Bench: Asok Kumar Ganguly
JUDGMENT A.K. Ganguly, J.
1. The subject-matter of challenge in this writ petition is an order dated 3rd January, 1995 passed by the Principal Judge, Family Court, Patna. By the said order the Principal Judge, Family Court, Patna passed an order on the petition of the husband under Section 26 of the Hindu Marriage Act for the custody of the child. The concluding portions of the said order about the custody of the child are set out:
"In view of the above, the petition of the petitioner Under Section 26 of the Hindu Marriage Act is allowed and the father petitioner is held entitled to the custody of the child Vibhav. The mother respondent is directed to hand over the child Vibhav to the petitioner, but it is further directed that during holidays i.e. summar vacation and Durga Puja vacation the child Vibhav will remain with the mother respondent. The father petitioner will produce the child in the Court before the beginning of the school holidays for handing over to the mother and after the holidays are over the mother will produce the child in the Court to be handed over to the father. The father petitioner will also produce the child Vibhav in Court on every alternate date so that the mother respondent may meet the child. If any of the parties will violate the order of the Court he or she will sufffer the consequence either by dismissal of the suit or by striking out of the defence as the case may be. This order will remain operative till the disposal of the case so that the trial Court may pass final order at the time of final disposal of the case concerning the child on the basis of better evidence on the record."
2. Initially against the said order one Misc. Appeal being Misc. Appeal No. 32 of 1996 was filed by the wife. Along with the said Misc. Appeal, she also filed another writ petition being CWJC No. 1174 of 1996 (Smt. Usha Kumari v. The Principal Judge, Family Court, Patna) challenging the said order and with a prayer of analogous hearing.
3. Mrs. Sheema Ali Khan, learned counsel appearing fo the wife who is the petitioner in this writ petition submits, on instructions, that the other writ pettion being CWJC No. 1174 of 1996 has been withdrawn.
4. Challenging ihe maintainability of the Misc. Appeal objection was raised on behalf of the husband-respondent intcr-alia on the ground that the order appealed against being an interlocutory order, no appeal lies against the same. After the matter was adjourned for a few days, a Division Bench, before whom the appeal was pending, by an order dated 10th July, 1996 came to the finding that the Misc. Appeal is not maintainable under Section 19(1) of the Family Courts Act, 1984 even then the order appealed against was stayed by the same Division Bench. The learned Judgesof the Division Bench relying on the observations of the Supreme Court quoted in the judgment of Raj Kumar Srivastava v. Smt. Anjana Sinha, reported 1996 (1) Pat LR 563, came to the conclusion that this Misc. Appeal should be coverted into a writ petition under Article 227 of the Constitution of India inasmuch as this is an extraordinary case and that the High Court should interfere in order to rectify a grave injustice caused. So the Division Bench directed the matter to be placed before the appropriate learned single Judge taking up writ petition. Thereafter the matter was placed before a learned single Judge on 28-8-1996 and the matter was admitted by the learned single Judge and some orders have been passed and the matter has been kept pending in this Court for more than a year.
5. With great respect to the learned Judges of the Division Bench, this Court is of the view that the order dated 10th July, 1996 passed by a Division Bench converting this Misc. Appeal into a writ petition, after holding that the Misc. Appeal is not maintainable, has not been passed with due regard with the provisions of the Family Courts Act and also the scope of interference of the High Court under Article 227 of the Constitution of India.
6. In Vishcsh Kumar v. Shanti Prasad, reported in AIR 1980 SC 892 : (1980 All LJ 411), theApex Court held that where revisional power has not been granted to High Court under the statute, a revisional petition under Section 115 of the Civil Procedre Code, a distinct proceeding, cannot be converted into a petition under Article 227 of the Constitution. Doing so, would be, according to the Apex Cpurt, defeating the purpose of the Act.
7. Here the same situation prevails. It would appear from a discussion of the provisions of Family Courts Act, 1984 that legislative intent is to grant only one right of appeal to Hjgh Court and right of appeal at an intermediate stage is expressly excluded. In that context the discretion exercised in the order dated 10th, July, 1996 by Division Bench of staying the operation of the order appealed against after holding that the appeal is not maintainable and permitting conversion of the appeal into a writ petition under Article 227 is an exercise which runs counter to the legislative intent and that order of conversion cannot be treated as a binding precedent by this Court.
8. The obiter observation of the Supreme Court quoted in the order of conversion merely preserves the High Court's power of interference under Article 227 of the Constitution in a given case. Those observations certainly do not justify the order of conversion passed by the Division Bench. I am making it clear that I am making those observations with utmost and profound respect to the learned Judges of the Division Bench and on my understanding of the legal position.
9. If one looks to the provision of the Faniily Cowls Act, 1984 and the dominant purpose behind the enactment and its objects and reasons one cannot but miss that the clear intention of the legislature is to provide a forum for speedy settlement of the disputes which are covered under the Act. The Act has some salient features to show that its proceeding are less formal in nature and more or less and in the nature of a conciliation proceeding. There are provisions for associating social Welfare groups and counsellors in working out the purposes of Act vide Sections 5 and 6. Section 12 enables the Family Court to secure the services of a medical expert or the services of persons who are engaged professionally in promoting the welfare of the family. Section 14 suitably modifies the rigours of Evidence Act in its application to Family Court proceeding relating to admissibility of evidence. All these features unmistakably point out that Family Court proceedings have an element of openness and informality, about them. The statement of objects and reasons behind the said Act are set out below :--
"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 stressed that in dealing with disputes concerning the family 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 Government;
(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 Government 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 marriage or as to the matrimpnial status of any person:
(ii) the property of the spouses or of 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 Procedre;
(e) make it obligatory on the part of the Family Court to endeavour, in the first instance to affect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and 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 service 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 effectively with a dispute;
(i) provide for only one right of appeal which shall lie to the High Court.
3. The Bill seeks to achieve the above objects."
10. Therefore the appeal provisions under Section 19 of the Act have been advisedly made a restricted one to effectuate the above object. It is a one tier appeal to the High Court. Right of appeal being always a creature of statute, the statutory prescription must be adhered,to in order to achieve the avowed object of speedy disposal of disputes.
11. Learned counsel appearing for the petitioner submits that the provisions of Subsection (5) of Section 19 of the Act dilutes the fetters against filing of appeal from interlocutory order imposed under Sub-section (1) of Section 1.9. This Court is unable to accept the same. This Court holds that the provisions of Sub-section (5) of Section 19 are by way of 'ex abundanti cautela'. It is a well known legislative device to make the legislative intention manifest and patent. This Court is thus definitely of the view that no appeal from an interlocutory stage is permissible.
12. Now the question is whether powers given to this Court under Article 227 of the Constitution can be utilised to achieve a purpose which has been expressly negatived by a competent piece of legislation. The answer is obviously an emphatic 'NO'. It is well known that the powers under Article 227 of the Constitution are powers of superintendence over the Subordinate Courts and the main purpose for exercising such power is to keep the Subordinate Court within the bounds of their authority. It is settled beyond controversy that under Article 227, the High Court cannot interfere with an order which has been passed by a Subordinate Court simply because of the fact that on the said facts the High Court entertains a different view of the matter, However the obiter observation of the Supreme Court which has been quoted in Raj Kumar's case (supra) merely reiterates that High Courts' power under Article 227 are obviously there but power cannot be exercised as a handy substitute for the statutory powers. This Court is absolutely convinced that this is not a fit case where there is any grave injustice and High Court should interfere under Articles 227 of the Constitution of India on merits of the order even if the High Court feels that a different order could have been passed.
13. So this Court holds that this writ petition should be dismissed on the ground of maintainability alone and the same is hereby dismissed.
14. But in such matters, there is always a human angle specially when the welfare of the child is involved. The fact that this matter has been kept pending in this Court for more than a year is weighing on the conscience of this Court.
15. Learned counsel for both the parties agree that before passing the custody order the Principal Judge, Family Court, Patna has not ascertained the wishes and desire of the child. In that view of the matter, and having regard to the passage of time which has already elapsed and also out of its anxiety to see that future of the child is not spoilt as a result of bitterness between the parents/this Court dismisses the writ petition, with the following directions :--
(1) The petitioner Usha Kumari is directed to appear before the Principal Judge, Family Court, Patna on 8th August, 1997 along with the child and with a copy of this order. On that date the husband namely, Vijay Kumar must also appear. Vijay Kumar will be informed of the same by his Counsel.
(2) The. Principal Judge, Family Court, Patna will hold a conciliation between the parties in the Chamber and, if possible will try to resolve the dispute. If the Principal Judge fails to do so he must ascertain the wishes of the child to find out under whose custody the child wants to remain.
(3) If after ascertaining the wishes of the child the Judge feels that the custody order requires any variation, the order may be so varied. It is made very clear that the Court is not giving any direction to the Judge concerned to that effect. The entire matter is left to the discretion of the Judge.
(4) If the attempt for conciliation fails, all attempts should be made by the Judge to finally dispose of the main proceeding within a period of six months from date.
There will be no order as to costs.