Radhe Shyam Soni v. State of Rajasthan (94) — 1990 DIGILAW 736 (RAJ)

JASRAJ CHOPRA J.-It is alleged that on 16.11.1990, petitioner Radhey Shyam moved an application before Honble the Chief Justice along with a copy of the Division Bench Judgment of this Court in. Dr. Suresh Kumar Bakliwal V. Smt. Neelanjana Jain (D.B.Civil Misc. Appeal No.335 of 1969 and 17 other Misc. Appeals, decided November on November 8,1990 at Jaipur Bench, Jaipur. That application has been ordered to be treated as a writ petition and has been put before us for disposal. 2. In this writ petition, it was submitted that the Family Court Act, 1984 (No.66 of 1984) (for short the Act" hereinafter) was formulated in the year. 1984 with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. It is alleged that consequent to the promulgation of the aforesaid Act, a family Court was established at Jaipur with effect from 1.1.1986 vide Notification No.P.2(8) Judl./80 dated 26.12.1985 with the jurisdiction of Revenue District, Jaipur and two family Courts were established at Jodhpur and Ajmer vide Notification No.P.l(12)Judl./88 dated 6.7.1988 with the jurisdiction of Revenue District of Jodhpur and Revenue District of Ajmer respectively. It was submitted that establishment of these courts facilitated the early disposal of matrimonial matters, which were long pending in the Courts of Rajasthan and give relief to the affected parties. According to the petitioner, his case bearing No.78A/88 (Radhey Shyam V. Vijay Kaur) filed under s.13 of the Hindu Marriage Act is also pending at the Family Court, Jodhpur and when it was at the stags of final disposal of the case, the Presiding Officer of the family Court was transferred. With the petition the petitioner has submitted the decision a Division Bench of this Court in Dr. Suresh Kumar Bakliwals case(supra) has held that the Family court should be deemed to be a Court subordinate to the High Court,(ii) that the Family court has not been constituted so far according to law in the State of Rajasthan and (iii) that on account of violation of ss.4,5,6,14 and 23 of the Act, the Family Court cannot function legally till the rules are made, Judges are appointed in accordance with the provisions of S.4 and their service conditions are fixed as per the provisions of law. It was Further held that Family Court cannot function without the Counsellors and it is the obligatory duty of the State and the High Court to provide Counsellors and to frame rules regarding the terms and conditions of administration of Counsellors and presence of Counsellors in the proceedings of the Court is must and s.6 is mandatory in nature. It was also held that similarly, it also the duty of the State Govt, to determine the association of social welfare agencies and to provide the assistance of Associations to the Family Court. It was submitted by the petitioner that as a result of the aforesaid Division Bench Judgment, the the Family Court, Jodhpur not function and no posting of a Judge at the family Court Jodhpur will take place, which would cause hardship to the affected peplod and would cause unnecessary delay in deciding the matrimonial matters. He has, therefore, requested Honble the Chief Justice to intervene in the matter and to ameliorate the lot of affected people by posting a Judge at the Family Court, Jodhpur so that the disposal of the matrimonial cases may be expedited. 3. Since a reference has been made about the Division Bench decision in Dr.Suresh Kumar Bakliwals case (supra), it will be proper to deal with this judgment be cause it raises serious questions of law and fact and in our considered view, they deserve to be decided by a larger Bench to be constituted by Honble the Chief Justice because the entire work of the Family Court in Rajasthan has been brought to a stand still and the purpose and the object which was sought to be achieved by this special legislation with the establishment of Family Courts and their effective functioning to give relief to estranged couples in matrimonial disputes and to provide maintenance to helpless women and children appears to have been stultified by this Judgment. 4. The Learned Judges of the Division Bench felt that in a number of appeals filed before this Honble Court against the orders passed by the Family Courts constituted under the Family Courts Act, 1984, questions relating to establishment of family Court and their functioning and failure of competent authorities to frame Rules under ss.4,5, and 6 of the Act have been raised in different forms. The Court, therefore, felt it proper that specific questions of importance should be formulated and the notices should be issued to the State Advocate General, State Government, the High Court and the Members of the Bar so that these questions of public importance may be decided. The following questions were formulated by the Division Bench in or. Suresh Kumar Bkliwals case (supra) for its determination 1. Whether the provisions of s.4 of the Act are followed, in the matter of appointment of the Judge of the Family Court 7 2. What are the terms and conditions of the Judges including salary and other allowances payable to the Judges of the Family Court and whether such terms and conditions including salary and other allowances have been fixed by the State Govt., in consultation with the High Court ? 3. Whether the Rules have been framed as provided under S.5. of the Family Court Act or not ? 4. Whether the State Govt, in accordance with the provisions of s.6 of the Act, after consulting the High Court had determined the numbers of categories of the counsellors to assist the Family Court in discharge of its function? 5. Whether the Counsellors have been provided to assist the Family Court in accordance with the provisions of s.6. of the Act? 6. Whether the terms and conditions of the associations of the Counsellors referred to in clause (1) of S.6 have been specified by Rules, made by the State Govt, if any ? 5. The main judgment was rendered by Honble D.L.Mehta,J. and he he has recorded the operative part of the judgment in the following terms "In the result, we answer that (i) family Court should be deemed to be a court subordinate to the High Court, (ii) family Court has not been constituted so far according to law, in the the State of Rajasthan (iii) on account of violation of Secs. 4,5,6,14 and 23 of the Act of 1984, the Family Court cannot function legally till the rules are made, Judges are appointed in accordance with the provisions of s.4 and their service conditions are fixed as per the provisions of law. 4,5,6,14 and 23 of the Act of 1984, the Family Court cannot function legally till the rules are made, Judges are appointed in accordance with the provisions of s.4 and their service conditions are fixed as per the provisions of law. Family Court cannot function without the Counsellors and it is the obligatory duty of the State and the High Court to provide Counsellors and to frame Rules regarding the terms and conditions of administration of Counsellors and presence of Counsellors in the proceedings of the Court is a must and s.6 is mandatory in nature . Similaly, it is also the duty of the State Govt, to determine the association of social welfare agencies and to provide the assistance of Associations to the Family Court. All consequential actions should be taken within two months." and Honble G.S. Singhvi, J. has recorded his conclusion as follows: "I have gone through the order dictated by Honble Mehta, J. I agree with him so far as conclusion regarding status of Family Court as the Court subordinate to the High court is concerned. I also agree with him that the family Court has not been constituted in accordance with law and that family Court cannot function without framing rules under ss.5, 6, 21 and 23 of the Family Court act 1984. I also agree with him that the Family Court cannot function without the Counsellors and it is the obligatory duty of the State and the High Court to provide Counsellors and to frame rules regarding the terms and conditions of administration of Counsellors and presence of Counsellors in the proceedings of the Court, However, I do not express any opinion on the views expressed by Honble Mehta ,J. on the question of power of Honble Chief Justice regarding posting and transfer of Judicial Officers." 6. It is pertinent to note that certain observations have been made in the Judgment by Honble D.L.Metha,J. as regard the powers of Honble the Chief Justice regarding posting and transfer of Judicial Officers and about those ob servations, a disagreement has been recorded by Honble G.S. Singhvi,J. in the following words: "However, I do not express any opinion on the views expressed by Honble Metha, J. on the question of power of the Honble Chief Justice regarding the posting and transfer of Judicial Officers." 7. It may be stated here that S.19(5) of the Act lays down that an appeal preferred under sub. sec. (1) shall be heard by a Bench consisting of two or more Judges. Thus, to make any decision effective in an appeal filed against an order of the Family Court,a concurrent Judgment has to be passed by a Bench consisting of two or more Judges and till it is a concurrent Judgment, it cannot be termed to be a Judgement in the eye of law and, therefore, the aforesaid observations of Honble D.L. Mehta, J. regarding power of the Honble Chief Justice for posting and transfer of Judicial Officers can at best be treated as observations of Honble D.L. Mehta, J. with which Hon,ble G.S.Singhvi,J. has not concurred and, therefore, the aforesaid observation cannot be treated as a part of decision required to be rendered by a Division Bench as per S. 19(6) of the Act and have no binding force of Judgment. We shall deal with the aspect of the matter a little later but for the present ,we will address ourselves on this aspect of the matter whether the questions that have been formulated in these appeals have been raised or formulated in these appeals in the light of the observation made by Honble D.L.Metha,J. at pages No.22 and 23 of the judgment, which are as under : "that in all the cases, the parties have surrendered to the jurisdiction of the Court and they have not raised any objection that the provisions of ss.4,5 and 6 have not been follwed,as such the Family Court cannot function. Thus, the parties have surrendered to the jurisdiction and have waived the right of objecting the jurisdiction of the Court." 8. When the parties have not raised a dispute about the constitution of the Family Courts as provided by ss.4,5 and 6 of the Act and have surrendered to the jurisdiction of the Court, was it proper for the appellate Court to raise such questions about the very constitution of the Family Courts and was it in the province of the appelate court to stultify the very functioning of the Family Court negating the very purpose for which these Court were established? 9. 9. The object for which this Act has been enacted was to provide for the establishment of 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. It may be stated here that before enactment of the aforesaid Act, the disputes about the marriage and family afore were being heard and decided by the District Courts and it was only after the issuance of the Notifications No.P.2 (8) Judl./80 dated 26.12.1985 and No.P.1 (12) Judl./88 dated 6.7.1988 that one Family Court was established at Jaipur with effect from 1.1.1986 and two Family Courts were established at Jodhpur and Ajmer after July,1988 and these family Courts have been empowered to hear and decide the disputes relating to the marriage and family affairs having jurisdiction in the revenue Districts of Jaipur, Jodhpur and Ajmer and the remaining Districts in Rajasthan have not been covered by this Act. 10. Be that as it may, this much is clear that these points have not been raised in these appeals but still, they have been decided by the Division Bench and that too, without disposing of these appeals on merits. These appeals mentioned in the Schedule annexed with the Division Bench Judgment are still pending and they are yet to be heard and decided by this Court. It is clear from the Division Bench Judgment that the parties have not raised any objection about the constitution of the Family Courts provided by ss.4,5 and 6 of the Act. Thus, we are required to consider the question whether in those circumstances, it was open to the appellate court to frame such questions raising doubts about the constitution of the Family Courts even when the parties have not raised any objection about the constitution of the Family Courts as provided by ss.4,5 and 6 of the Act ? 11. In this respect, we would like to refer to an authority of their lordships of the Supreme Court in K.S. Venkataraman Co. (P) Ltd. V. State of Madras (1) wherein the majority of the Constitution Bench held that the three authorities under the Indian Income Tax Act viz., the Income Tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal are the creatures of the Act and they function thereunder. (P) Ltd. V. State of Madras (1) wherein the majority of the Constitution Bench held that the three authorities under the Indian Income Tax Act viz., the Income Tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal are the creatures of the Act and they function thereunder. They cannot ignore any source of income on the ground that the relevant provisions offend the fundamental rights or are bad for want of legislative competence. The Act does not confer any such right on them. Their jurisdiction is confined the assessment of the income and the tax under the provisions of the Act. Whether the provisions are good or bad is not their concern. As the Tribunal is a creature of the statute, it can only decide the dispute between the assesses and the Commissioner in terms of the provisions of the Act. That was a case where the vires of provisions were not challenged. Their lordships felt that as question can be not possibly give any decision on the question of the vires of provision. At the most, the only question that it may be called upon to decide is whether the tribunal has jurisdiction to decide the said question. On the express provision of the Act, it only hold that it has no such jurisdiction. It was further held that the appeal under s.66A(2) be the Supreme Court does not enlarge the scope of the said jurisdiction. The Supreme Court can only do what the High Court can do. Thus, it follows from R.S. Ventkataraman & Co.(P) Ltd.s case (supra) that the tribens was entitled to decide the question or dispute between the assesses and the commissioner and Further, a question can be raised about its own jurisdiction whether it can hear such question or not. It could not have travelled beyond that could not have decided the question relating to its our constitution. Their lordship quoted the observation of Derbyshire C.J. Raleigh Investment Co.s case (2) with approval, which reads as follows:. Derbyshire C.J., who was one of the Judges who took part in Raleigh Investment Co.s case in the Calcutta High Court, referring to the jurisdiction of the Appellate Assistant Commissioner, Observed thus: "He was employed to administer the Act and he had to take the Act as he found it. " 12. Derbyshire C.J., who was one of the Judges who took part in Raleigh Investment Co.s case in the Calcutta High Court, referring to the jurisdiction of the Appellate Assistant Commissioner, Observed thus: "He was employed to administer the Act and he had to take the Act as he found it. " 12. It is,therefore, clears that the appellate court has a very limited jurisdiction to decide the matter about the rights and wrongs of the disputes that are raised before the trial the questions Court. It can also hear and decide the questions about the facts and law as they arise out of the provisions of relevant Act but the appellate Court cannot travel beyond its brief. 13. Such a matter came up consideration before a Division Bench of the Delhi High Court in I.T. Commr., New Delhi V. Edward Kaventer Pvt. Ltd.(3) In that case, in para 9 of the Judgment, Division Bench referred to s.33 (4) of the Income Tax Act,which provides that the Tribunal may after giving both the parties an opportunity of being heard, pass such orders there on as it thinks fit. Interpreting these words, their lordships of the Division Bench held that though these words are expressive of the widest possible powers, then-scope is restricted by the use of the word thereon which limits the powers of he Tribunal to the subject-matter of the appeal. It was further held that as pointed out by the Supreme Court in Commr. of I.T.V. Nanick Sons (4), the Tribunal must exercise its powers only "in respect of matters that arise in the appeal and according to law." It cannot travel outside the scope of the appeal and adjudicate or give finding on a question which is not in dispute and which does not form the subject-matter of the appeal before it. Even where, it is provided that certain new points which are not raised in the memo of appeal can be urged with the of the Court then too it has been held that normally speaking such additional ground can be urged only in relation to the subject-matter already appealed against and in regard to such grounds, the Tribunal has a discretion to grant or refuse permission and the grant of permission may also be express or implied. But, where an appellant seeks to bring in new items which had nothing to do with subject matter of the appeal as originally filed, it will be as if the appeal in this regard has been filed belatedly and the Tribunal can entertain them only after considering whether there are grounds to excuse the delay in filing the appeal. (14) In this respect, we further refer to a decision of their lordships of the Supreme Court in Shankar V. Krishna (5),wherein it has observed: "That the right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the later." The main thrust of this decision is that an appellant enters the superior Court only to get redress from the errors of the Court below and further for a review of the decision of that Court. If the appellate court travels beyond that, it would mean that the appelate court travelled beyond its brief which is not permitted by law. 15. We may then refer to a decision of the Patna High Court in Govind Prasad Singh V. Kulwanti (6), where in it has been observed that the Courts are not at liberty to grant relief either not brought for in plaint or that does not flow naturally from ground of claim as stated in the plaint. It was further observed that the Court cannot make out a new case for a party. It is true that the courts are bound to take into consideration all the rights of the parties to the suit, both legal and equitable and give effect thereto by. their decrees as far as possible but the Courts are not at liberty to grant a relief either not sought for in the plaint or that does not naturally flow from the grounds of claim as stated in the plaint. 16. their decrees as far as possible but the Courts are not at liberty to grant a relief either not sought for in the plaint or that does not naturally flow from the grounds of claim as stated in the plaint. 16. In this cases, it has been the categorical finding of the Division Bench that in all the cases, the parties have surrendered to the jurisdiction of the Court and they have notarised any objection that the provisions of ss.4,5, and, 6 of the Act have not been followed, is such Family Court cannot Function. is stated above, which these questions were not raised by the parries in their pleadings, they cannot be decided in those appeal. Even while considering the scope of the appellate jurisdiction, we refer to a decision of their lordships of the Supreme Court in K.S. Venkatarman & Co.(P) Ltd.s case (Supra), wherein it has been observed that the Supreme Court cannot enlarge the scope of its appellate jurisdiction. 17. It has been the practice of the Court that they do not undertake interpretation of the Constitution in absence of a live issue. In Harsharan Verma V. U.O.I. (7), their lordships of the Supreme Court have observed that the Court do not undertake interpretation of the Constitution in absence of live issue. In this case no constitutional question has been raised but as stated above, the question regarding constitution & Proper reorganisation of the family Courts in violation of ss.4,5, and 6 of the Act not have been raised and on the amount of the aforesaid decision they were live issue because they were not raised by the parties and the parties have Surrendered to the jurisdiction of the Court. Thus the Court was only called upon to decide the question whether the judgment rendered by the Family Court in a particular case was right or wrong, according to the particular case was with or wrong, according to the provisions of the act. It was not called upon to decide the question as to decide the question as to whether the Family Courts have been constituted as per the provisions of ss.4,5 and 6 of the Act or not 7. It was not called upon to decide the question as to decide the question as to whether the Family Courts have been constituted as per the provisions of ss.4,5 and 6 of the Act or not 7. The Although, in the earlier part of the judgment, it has been observed by the Division Bench that certain questions have been raised about it but from the later part of the judgment find that no such questions were raised and, therefore, that being a finding of fact has to be accepted as such. 18. In District Board V. Upper India Sugar Mills (8), the two Judges of the Division Bench held different views about the scope of the appellate jurisdiction of a court. In that case, the disputed question that arose for the decision of the Court was whether the appellate court can hear the entire case and redecide it as it likes taking into consideration the facts of the case and the relevant law as it was in force, at the relevant time, i.e. either when the case was decided by the trial court or when the appeal was decided by the appellate court. On this question. Desai J. speaking for the Court observed that it has got all the powers of a trial court but this does not mean that it becomes a trial court and re-decides the matter in dispute. It can pass any order that the trial court could have passed; this only means that it can pass any order that could have been legally passed by the trial court on the date when it pronounced its judgment, On the other hand, Beg, J. speaking for the Court said that a survey of the entire provisions of the Code of Civil Procedure seams to show that the intention of the frames of the Code was to give the appellate court as far as possible powers analogous to that of the original court so as to enable the appellate court to have ample control over the case in the matter of affording relief according to law as it was obtaining at the time of the decision of the appeal. However, both the Judges of the Division Bench have held that the appellate Courts jurisdiction is co-terminus with that of the trial court. However, both the Judges of the Division Bench have held that the appellate Courts jurisdiction is co-terminus with that of the trial court. It therefore, follows from this decision that the trial court can entertain all questions or disputes within the frame work of the Act. It can also decide the questions which may be raised as regards its own jurisdiction to entertain those disputes but the question relating to the constitution of the Court cannot be decided by the trial court and, therefore, that question cannot be entertained. In this case, we are firmly of the view that formulating and deciding the questions relating to the very constitution of the Family Court was beyond the scope of the jurisdiction of the appellate courts because in this case, neither this dispute was raised the trial court viz.,Family Court. We conclude this to be so no the basis of the observations of the Division Bench, which have already been quote above, wherein it has been said that in all the cases, the parties have surrendered to the jurisdiction of the Court and have not raised any objection that the provisions of ss.4,5 and 6 of the Act have not been followed, as such the Family Court cannot function thus, the question regarding constitution of the Family Court was not a live issue, which could have been made subject-matter of the decision by the appellate Court. 19. It has been hold by their lordships of the Supreme Court in Parduman Kr.V. Virendra Goyal (9) that Sec. 107 (2) CPC is based on the general principle that an appellate court has the same powers and duties as are conferred and imposed by the Code on the original court and can do, while the appeal is pending, what the original court could have done , while the suit was pending. It has also been held in 1973(75) Pun.L.R (D)-266 that the jurisdiction of the appellate court is restricted to the matter appealed against. It cannot pass orders in any other matter. 20. Having dealt with the aforesaid authorities, we are firmly of the view that this matter needs to be decided by a large Bench to be constituted by Honble the Chief Justice as to whether the learned Judges of the Division Bench in Dr. It cannot pass orders in any other matter. 20. Having dealt with the aforesaid authorities, we are firmly of the view that this matter needs to be decided by a large Bench to be constituted by Honble the Chief Justice as to whether the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwals case (supra) have not travelled beyond their jurisdiction by raising certain questions about the very Constitution of the Family Courts based on the provisions of ss.4,5 and 6 of the Act. To be more specific, whether the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwals case (supra) could frame and decides such questions as have been raised and decided by them though they were not raised in the appeal and were not live issues because those questions were neither raised by the parties before the trial Court nor they were raised by the parties before the appellate court in their memo of appeals. 21. In Suresh Kumar Bakliwals case, the Division Bench held that the Family Court should be deemed to be a Court subordinate to the High Court. We may at once make it clear that we do not propose to Challenge this finding recorded by the learned Judges in this case. 22. The Second conclusion arrived at the Division Bench in the Bakliwals case is that the Family Courts have not been constituted according to the provisions of the Act in the State of Rajasthan and the third conclusion is that on account of violation of ss.4,5,6, 14 and 23 of the Act,the Family Courts cannot Function legally till the rules are made, Judges are appointed in accordance with the provisions of s.4. and their service conditions are fixed as per the provisions of law. It was further observed that the Family Court cannot function without the Counsellors and it is the obligatory duty of the State and the High Court to provide Counsellors and to frames Rules regarding the terms and conditions of administration of Counsellors and presence of Counsellors in the proceedings of the Court is a must and s.6 is mandatory in nature. It was also observed that it is the duty of the State Govt. to determine the association of social welfare agencies and to provide the assistance of Associations to the Family Court. Now, we shall deal with conclusions No.2 and 3 simultaneously. It was also observed that it is the duty of the State Govt. to determine the association of social welfare agencies and to provide the assistance of Associations to the Family Court. Now, we shall deal with conclusions No.2 and 3 simultaneously. S.3 of the Act reads as follows : 3.(1) For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Govt, after consultation with the High Court, and by notification ,- (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 exceeds 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 Govt, 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." 23. In this case, Family Courts at Jaipur, Jodhpur and Ajmer have been established vide Govt. Notification Nos.P.2(8)Judl./80 dated 26.12.1985 and No.P.l(12)Judl./88 dated 6.7.1988 with the jurisdiction of Revenue Districts of Jaipur, Jodhpur and Ajmer respectively. These Courts have been established under s.3 of the Act consultation with the High Court. Thus, it is clear that these three Family Courts at Jaipur, Jodhpur and Ajmer have been established in accordance with the provisions of s.3 of the Act. 24. S.4 of the Act deals with appointment of Judges and it says that the State Govt, may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of a Family Court. Sub.s.(2) of s.4 deals with the appointment of Addl. Judges. S.4(3) provides for qualification of the Judges and says that a person shall not qualified for appointment as a Judge unless he for at least seven years held a judicial office in India or the Office of a member of a Tribunal or any post under the Union of a State requiring special knowledge of law; or has for at least seven years been an Advocate of a High Court or of two more such Courts in succession; or possesses such other qualifications as the Central Govt. may, with the concurrence of the Chief Justice of India, prescribe. may, with the concurrence of the Chief Justice of India, prescribe. Sub-section(4) of s.4 of the Act lays down that in selecting persons for appointment as Judges,-(a) 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 selection; and (b) preference shall be given to women. It is nobodys case that the provisions of s.4 of the Act have been flouted by the State Govt. or the High Court, as the case may be at the time the Presiding Officers of these Family Courts have been appointed. It is also nobodys case that the Presiding Officers of these Courts do not possess 7 years experience as a Judicial Officer or do not possess such other qualifications, which have been prescribed by the Central Govt. with the consultation of the Chief Justice of India. What is required is that endeavour should be made to ensure that person committed to the need no 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. It is nobodys case that the Presiding Officers of these Family Courts lack these qualifications. We have already observed that prior to the promulgation of the Act and the establishment of these Family Courts, normally the disputes relating to marriage and family affairs were heard by the District Judges and they were exploring the possibility of re-conciliation between the parties and thereafter, judgement were rendered by them. Thus, it cannot be said that these Judicial Officers do not have any expertise and they are committed to the need to protect and preserve the Institution of marriage and to promote the welfare, of Children. Of Course, the law provides that the Judges of these Family Courts should be appointed by the State Govt. with the concurrence of the High Court but the Division Bench in Dr. Suresh Kumar Bakliwals case(supra) has held that these court are subordinate to the High Court and the posting of Judges of these courts can be made by the High Court. with the concurrence of the High Court but the Division Bench in Dr. Suresh Kumar Bakliwals case(supra) has held that these court are subordinate to the High Court and the posting of Judges of these courts can be made by the High Court. We see no reason to differ from the view taken by the Division Bench of this Court in Suresh Kumar Bakliwals case (supra) on this score. 25. Of Course, it has been observed by the Division Bench in Dr. Suresh Kumar Bakliwals case (supra) that posting of Judicial Officers as Judges of the Family Courts by the High Court means postings by the Full Court or a Committee appointed by the Full Court and such an appointment could not have been made by the Chief Justice. It may be stated here that in his conclusions, Honble G.S. Singhvi, J. has said that "I do not express any opinion on the views expressed by Honble Mehta, J. on the question of power of the Honble Chief Justice regarding the posting and transfer of Judicial Officers". Thus, the aforesaid observations made by Honble Mehta, J. cannot be said to be the Judgment or the decision of the Division Bench. They can at best be treated as observations of Honble Mr Justice Mehta and they are not binding. Now, we shall deal with the question whether these observations of Honble Mehta, J. are of any avail or not? 26. When it has been held that these Officers can be posted by the High Court because these Family Courts are subordinate to the High Court and the High Court has control over these courts, then we have no option but to follow the Rules of the High Court of Judicature for Rajasthan, 1952 (for short the Rules) in such matters. Chapter III of these Rules deals with Administrative Business of the Court. R.14 provides that all administrative business of the Court relating to the control over subordinate courts vested in the Court under Art.235 of the Constitution or otherwise and to the superintendence over the Courts and tribunals vested in the Court under Art.227 of the Constitution or otherwise shall be disposed of as provided hereinafter. R.14 provides that all administrative business of the Court relating to the control over subordinate courts vested in the Court under Art.235 of the Constitution or otherwise and to the superintendence over the Courts and tribunals vested in the Court under Art.227 of the Constitution or otherwise shall be disposed of as provided hereinafter. Here, it will be very useful to quote rr.15, 16,17 and 20 of the Rules in extenso : R.15 Matters on which all Judges shall be consulted:- On the following matters, all the Judges of the Court shall be consulted, namely : (a) proposals as to legislation or changes in the law, (b) proposals as to changes in or the issue of new Rules of Court; (c) proposals as to changes in or the issue of new rules for the guidance of subordinate courts; (d) appointment, promotion and seniority of judicial officers; (e) withholding of promotion, supersession or reduction of judicial officers; (e) withholding of promotion, supersession or reduction of judicial officers; (f) removal or dismissal of any judicial officer; (g) compulsory retirement of judicial officer otherwise than by way of punishment; (h) important questions of policy or those affecting the powers and status of the Court laid before the Court by Chief Justice or any other Judge; (i) matters connected with the Supreme Court; (j) annual administration report; (k) matters upon which the Govt. desires the opinion of the Court, if such matter is considered fit to be laid before the Court by the Chief Justice; and (l) any matter which the Chief Justice or the Administrative Committee, as constituted under r.16, may consider fit to be laid before them for consideration. R.16. Administrative Committee.- (1) A Committee of Judges shall be formed composed of the Chief Justice, the Administrative Judge and such other Judge or Judges, as the Chief Justice may, from time to time appoint. This Committee shall be called the Administrative Committee. (2) Subject to these Rules, the Administrative Committee shall act for the Court in its administrative business in respect of the matters enumerated in r.17. R.17. This Committee shall be called the Administrative Committee. (2) Subject to these Rules, the Administrative Committee shall act for the Court in its administrative business in respect of the matters enumerated in r.17. R.17. Matters on which the Administrative Committee shall be consulted :- The administrative Committee shall be consulted on the following matters, namely: (a) the issue of general letters to subordinate courts; (b) the issue of directions regarding the preparation of returns and statements; and (c) any other matter which the Chief Justice or the Administrative Judge may desires to be brought before it. R.20. Administrative business to be disposed of by the Chief Justice:-Subject to rules 15, and 17, the administrative business referred to in rules 14 shall be disposed of by the Chief Justice. 27. These rules clearly provide that all administrative business of the Court relating to the control over the subordinate courts vested in the Court under Art.235 of the Constitution shall be disposed of as provided by the Rules. R.15 prescribes those matters, on which, all the Judges of the Courts needs to be consulted. It does not lay down that about posting and transfer of Judicial Officers, all the Judges of the Court are required to be consulted. R.16 of the Rules provides that a Committee of Judges shall be formed composed of the Chief Justice, the Administrative Judge and such other Judge or Judges, as the Chief Justice may from time to time appoint. This Committee shall be called as Administrative Committee and it shall act for the Court in its administrative business in respect of the matters enumerated in r.17. R.17 lays down the matters on which the Administrative Committee shall be consulted. This rule does not provide that for transfers and postings of Judicial Officers, the Administrative Committee shall be consulted. Rule 20 clearly provides that subject to rr.15 and 17, the administrative business referred to in rr.14 shall be disposed of by the Chief Justice. Thus, it is clear that all those matters which are not covered by rr.15, 16 and 17 of the Rules and which form part of r.14 relating to control over subordinate courts vested in the Court under Art.235 of the Constitution or otherwise and to the superintendence over the courts and tribunals vested in the Court under Art.227 of the constitution shall be disposed by the Chief Justice. As the matters relating to transfers and postings of Judicial Officers have not been included in rr.15,16 and 17 of the Rules, it is within the domain of the Chief Justice to make transfers and postings of Judicial Officers and that will be deemed to have been made by the High Court under s,20 of the Rules. These Rules have been framed by the High Court in exercise of the powers conferred by s.46 of the Rajasthan High Court Ordinance, 1949 read with Art.225 of the Constitution of India and all other powers enabling it in that behalf. It appears that probably these Rules have not been brought to the notice of the Honble Judges of the Division Bench. One of the Judges of the Division Bench viz., Honble D.L. Mehta, J. felt that the Chief Justice has no power to make transfer and posting of Judicial Officer and actually, it should be done by the Full Court or a committee appointed by the Judges of the High Court. In view of the discussion made hereinabove, we feel that to this extent, the observations of Honble D.L.Mehta, J. deserve to be expunged and the contention of the petitioner Shri Radhey Shyam Soni that an Officer should be posted as Judge of the Family Court, Jodhpur deserves to be accepted. As regards the posting of a Judge of the Family Court, no Rules are required to be framed and only qualifications have to be looked into and an Officer has to be posted by the Honble Chief Justice as per r.20 of the Rules, so that the purpose of the Act to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs can be achieved. 28. Now, we proceed to examine s.5 of the Act. S.5 of the Act is discretionary. It starts with the pharase that the State Govt. 28. Now, we proceed to examine s.5 of the Act. S.5 of the Act is discretionary. It starts with the pharase that the State Govt. may, in consultation with the High Court, provide, by rules, for the association, in such manner and for such purpose and subject to such conditions as may be specified in the rules, with a Family Court of (a) institutions or organisations engaged in social welfare or the representatives thereof; (b) persons professionally engaged in promoting the welfare of the family; (c) persons working in the field of social welfare; and (d) any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act. The use of words may and further in such manner and for such purposes and subject to such conditions as may be specified in the rules clearly denote that this is only an enabling provision. It is not a mandatory provision. The learned Judges of the Division Bench have also not held that it is a mandatory provision. When s.5 of the Act is read with s.9, 10 and 12 of the Act, it will be clear that the Family Courts have power to adopt their own procedure subject to any Rules that may be made for the purpose by the High Court. Thus, if the Rules have not been framed about it, even the Family Courts have been empowered to evolve their own procedure with a view to arrive at a settlement. Thus, non-framing of the Rules does not count of the root of the functioning of the Family Courts and non-compliance of s.5 of the Act does not render the functioning of the Court as illegal. S.5 of the Act is an enabling section. The assistance of such categories of persons can be obtained by the Presiding Officer of the Court under s.12 of the Act read with s.16 of the Act. 29. Now, we deal with s.6 of the Act. It has been held by the learned Judges of the Division Bench that this provision is mandatory in nature. We are firmly of the view that it is not mandatory in character. S.6 has two parts. Sub.s.(l) of s.6 of the Act provides that the State Govt. 29. Now, we deal with s.6 of the Act. It has been held by the learned Judges of the Division Bench that this provision is mandatory in nature. We are firmly of the view that it is not mandatory in character. S.6 has two parts. Sub.s.(l) of s.6 of the Act provides that the State Govt. shall in consultation-with the High Court determine the number and categories of counsellors, Officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such Counsellors Officers and other employees as it may think fit. Firstly, the State Govt. in consultation with the High Court is required to determine number and categories of Counsellors, Officers and other employees required to assist a Family Court. It does not require any rules to be framed. The State Govt. can decide it in consultation with the High Court After determination of the number and categories of Counsellors, Officers and other employees required to assist a Family Court in the discharge of its function, the State Govt. has been given discretion to provide the Family Court with such counsellors Officers and other employees as it may think fit. The use of words such counsellors, Officers and other employees as it may think fit make the entire provision discretionary and not mandatory. 30. Now, we would like to discuss the importance of s.6(2) of the Act which provides that the terms and conditions of association of the counsellors and the terms and conditions of the service of the Officers and other employees, referred to in sub-s.(l) shall be such as may be specified by rules made by the State Govt. Thus, framing of the Rules is not a condition precedent for the constitution of the Service. Where the law provides that terms and conditions of the Service will be guided by the Rules and if the Rules are not framed, it does not mean that the working of the Court will be brought to a stand still. Thus, framing of the Rules is not a condition precedent for the constitution of the Service. Where the law provides that terms and conditions of the Service will be guided by the Rules and if the Rules are not framed, it does not mean that the working of the Court will be brought to a stand still. Article 162 of the Constitution provides that subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws; Provided that in any matter with respect to which the Legislature of a State and parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. Thus, it is clear that where the rules have not been framed, the State Govt. in exercise of its powers conferred by Art.162 of the Constitution can pass executive orders laying down the terms and conditions of the Service. In this respect, we can do not better then to quote certain authorities of their lordships of the Supreme Court. 31. In Ramesh Prasad V. State of Bihar (10), it has been observed by their lordships of the Supreme Court as follows : "that it is not obligatory to make rules of recruitment etc. before a service is constituted or a post is created or filled up. The process of rule-making is a protracted and complicated one involving consultation with various authorities and compliance with manifold formalities. The exigencies of administration at times require immediate creation of service or posts and any procrastination in that behalf cannot but prove detrimental to the proper and efficient functioning of public departments. In such like situations, the authorities concerned, would have the power to appoint or terminate administrative personnel under the general power of administration vested in them. In the absence of rules, qualifications for a post can validly be laid down in the self same executive order creating the service or post and filling it up according to those qualifications." In M/s. Bishamber Dayal Chandra Mohan V. State of U.P. (11), their lordships of the Supreme Court have observed : "If there is no enactment covering a particular aspect, certainly, the Govt. can carry on the administration by issuing administrative directions or instruction, until the legislature makes a law in that behalf, otherwise, the administration would come to a stand-still." Their lordships of the Supreme Court in Sant Ram V. State of Rajasthan (12) have held : "We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts, the Govt. cannot issue administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rule laying down the principle of promotion of junior or senior grade Offers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Govt. cannot issue administrative instructions regarding the principle to be follower in promotions of the Officers concerned to selection grade posts. It is true that Govt. cannot amend or supercede statutory Rules by administrative instructions, but if the rules are silent on any particular point, Govt, can fill up the gaps and supplement the rules and issue instructions not in consistent with the rules already framed." 32. Their Lordships of the Supreme Court also placed reliance on B.N. Nagarajan V. State of Mysore (13) wherein. It Was pointed out that it is hot obligatory under the proviso to Art.309 of the Constitution to make rules of recruitment etc before a service can be constituted or a post created or filled and secondly, the State Govt. has executive power, in relation to all matters with respect to which the Legislature of the State has power to make laws. 33. The same view has been expressed by their lordships of the Supreme Court in T. Cajee V. U. Jormonik Siem (14), wherein it has been observed. "that the Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para 19(i)(b) or till the District Council passed laws under para 3(l)(g)." 34. Thus, the resultant situation that has arisen on account of the Division Bench decision in Dr. Suresh Kumar Bakliwals case (supra) is that the Family Courts in Rajasthan have been estopped from functioning S.8 of the Act clearly. Thus, the resultant situation that has arisen on account of the Division Bench decision in Dr. Suresh Kumar Bakliwals case (supra) is that the Family Courts in Rajasthan have been estopped from functioning S.8 of the Act clearly. provides that where a Family Court has been established for any areas no district court or any subordinate Civil Court referred to in sub-s.(l) of s.7 shall in relation to such area have or exercise any jurisdiction in respect of any suit or proceedings of the nature referred to in the Explanation to that sub-section, and no Magistrate shall, in relation to such aria have or exercise any jurisdiction or powers under Chapter IX of the Cede of Criminal Procedure, 1973. Thus, in the areas where these Family Courts have been Established, all other Civil courts have been excluded to entertain and hear such disputes and the working of the Family Courts have been stultified for want of framing of the Rules, which will negate the very purpose for which this Act was enacted. We are firmly of the opinion that Sec.6 of the Act is not mandatory but it is directory in nature and that will be further clear from the provisions of Ss.9,10, 11, 12,13, 14, 15 and 16 of the Act. S.23 of the Act clearly provides that the State Govt. may after consultation with the High Court by notification make Rules for carrying out the purposes of this Act. Thus, the discretion has been left on the State Govt. to frame the Rules or not to frame the Rules. Thus, s.6 of the Act cannot be held to be mandatory. 35. Now, we would like to examine the provision of ss. 21,22 and 23 of the Act. S.21 of the Act relates to the power of the High Court to make rules in regard to certain matters mentioned in clauses (a) to (c) of sub-s.(2) of s.21 of the Act. S.22 of the Act is an enabling provision, whereby it has been provided that the Central Govt. may with the concurrence of the Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of a Judge referred to in clause (c) of sub-s.(3) of s.4 of the Act. S.23 of the Act provides that the State Govt. may with the concurrence of the Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of a Judge referred to in clause (c) of sub-s.(3) of s.4 of the Act. S.23 of the Act provides that the State Govt. may after consultation with the High Court by notification make rules for carrying out the purposes of this Act as mentioned in clauses (a) to (e) of sub-s.(2) of S.23 of the Act. Thus, the framing of these Rules under the Act has also been made discretionary or at the most directory because the legislature has used the word May for framing of such Rules. 36. Now, so far as Sec.44 of the Act is concerned, it only relates to the fact as to how far the provisions of evidence Act will be applicable to proceedings before a family Court. It has nothing to do with the fact to whether the Family Court has been property constituted or not. 37. These Rules are not relevant so far as appointment of Judges, Officers and Counsellors are concerned but they relate to the terms and conditions of their services. They can even be prescribed or clarified by executive orders in absence of Rules. They must have been clarified specifically because the Courts are functioning for the past some years and, therefore, the working of the Courts cannot fee brought to a stand still on that score, simply because certain Rules have not been framed, as has been held by the division Bench in Dr. Suresh Kumar Bakliwals case (supra). 38. The use of the word shall in s.6(2) of the Act cannot be treated as mandatory in view of other provisions of the Act. It can at best be held as directory in character, In a number of authorities, the use of word shall has been treated as may. In this respect, reliance may be placed on M/s. B.P.Khemka Pvt. Ltd., vs. Birenddra Kumar (15); Textile Commissioner V. Sagar Textile Mills (16); Govind Lal V. P.M. Committee (16); Bhikhan Bobla vs.. Punjab State (17); Kali Pada V. UOI (18) Vishandas V. Savitri Devi (19); Ganesh Pd. In this respect, reliance may be placed on M/s. B.P.Khemka Pvt. Ltd., vs. Birenddra Kumar (15); Textile Commissioner V. Sagar Textile Mills (16); Govind Lal V. P.M. Committee (16); Bhikhan Bobla vs.. Punjab State (17); Kali Pada V. UOI (18) Vishandas V. Savitri Devi (19); Ganesh Pd. V. Lakshami Narayan (20); and Govindrao V. State of M.P. (22) It will be clear from these authorities, that the use of the word shall can be treated as May We have not discussed these authorities in detail because in these authorities, principles have been laid down as to how the words shall and May have to be considered in a particular context and whether they are to be treated as shall or may have to be ascertained from the language used in a particular provision, keeping in view the object of the relevant provisions of the Act or the Rules and by taking into consideration all other surrounding circumstances. 39. It is one thing that law provides that the Rules may be framed and, therefore, a direction could be given to the State Govt. and the High Court to frame them within a particular period but it is quite another that in absence of the Rules, the working of the Court has been brought to a halt that certainly results in injustice because as per s.8 of the Act, the jurisdiction of all other courts dealing with such matters has ousted and if these courts do not function, the very object and the purpose of the Act will be frustrated. In our considered opinion, non-framing of the Rules regarding the pay, allowances, honorarium and other service conditions of the Judges, Officers, Counsellors and amicus curaie is not sufficient to hold that the Family Courts will not be able function in absence of such Rules. 40. In view of the discussion made hereinabove, we propose to refer following questions to be decided by a larger Bench to be constituted by Honble the Chief Justice: (1) Whether in view of the fact that parties have succumbed to the jurisdiction of the Family Court and have not raised any objection about non-compliance of Secs.4,5 and 6 of the Family Court Act, 1984, the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case (supra) and other connected cases were authorised to formulate the questions which they have formulated and answered, in Pending appeals against the judgement of the family court specially as regards the constitution & functioning of Family court ? (2) Whether Functioning of the family Court can be brought to a standstill simply because certain rules have not been framed either by the High Court or by State Govt. or Central Govt. under ss.21, 22 and 23 read with ss.4,5, and 6 of the Family Courts Act, 1984? or in the alternative:, Whether non-framing of the Rules under ss. 21, 22 and 23 or for that matter under S. 14 of the Family Courts Act cut at the root the Functioning of the Family Courts and whether the Family Courts at Jaipur, Jodhpur and Ajmer which are functioning for the last number of years should not be allowed to function simply because service conditions of the persons who are employed in these Courts as Judges, Officers and Counsellors have not been made part of the Rules, which have to be framed by the High Court or the State Govt.? (3) Whether the provisions of s.6 of the Family Courts Act, 1984 are mandatory in character or they are only directory in nature? (4) Whether appointment of Counsellors Association of Social Institutions and organisation meant for providing assistance to the Family Courts for their better Functioning is a condition precedent for the proper functioning of the Court or whether they are only enabling provisions, the compliance which is not mandatory but directory ? (5) Whether in view of rr. 14 20 of the Rules of High court of Judicature for Rajasthan, 1952, the observations of Honble D.L. Mehta, J, in Dr. Suresh Kumar Bakliwal case (supra) as regards the power of Honble the Cheif Justice recording transfer and postings of Judicial Officers deserve to be sustained or they deserve to be expunged? Let this matter be put before Honble the Chief Justice for constituting a larger Bench for the Decision of the aforesaid points. 41. Before parting with the case, we would like to observe that no prohibition has been imposed on Honble the Chief Justice to appoint any person as a Judge of the Family Court at Jodhpur and, therefore, that should be done forthwith, as has been claimed by the petitioner.