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Rajasthan High Court · body

1999 DIGILAW 9 (RAJ)

Sandhya Guntae v. Shri Ravi Kant Guntae

1999-01-04

AMRESH KUMAR SINGH

body1999
Honble SINGH, J.–This revision petition is directed against the order dated 27th July, 1998 passed by the learned District Judge, Jodhpur, who was looking after the work of the Judge, Family Court, Udaipur during the laters absence. (2). On 27th July, 1998 the file of Civil Case No.38/98 Ravi Kant vs. Smt. Sandhya pending in the Family Court, Jodhpur was submitted before the District Judge, Jo- dhpur. The defendant Smt. Sandhya was called, but she did not appear. The plaintiff Ravi Kant, father of Chinmaya, a minor, was present. The learned District Judge in view of the facts sated in the order made an interim order to the effect that the custody of Chinmaya be handed over to the plaintiff Ravi Kant. It was further directed by him that a copy of the order be sent to the defendant Smt. Sandhya by registered A/D through Court and the case was directed to be listed on 5th August, 1998. On 18th September, 1998 the defendant Smt. Sandhya appeared in person and she sought an adjournment, which was granted and case was directed to be listed on 3rd November, 98. On the same day, the defendant applied for copies. Be- fore the appearance of Smt. Sandhya on 18.9.98, the Court fixed 3.11.98 vide order dated 5th August, 98. On 18.9.98 Smt. Sandhya was given opportunity to file written statement/her reply on 10th October, 98 and it was further directed that the plaintiff Ravi Kant would be permitted to meet his son Chinmaya during the period from 27th September, 98 to 5th October, 98. By the aforesaid order, defendant Sandhya was further directed to hand over the custody of her son Chinmaya to the plaintiff in accordance with the order dated 27th September, 98. (3). The learned counsel for the petitioner has submitted that the learned District Judge, Jodhpur has no jurisdiction to pass the impugned order dated 27th July, 98 as well as the order dated 18.9.98, because he was not duly appointed by the State Government as a Judge of the Family Court, Jodhpur. (3). The learned counsel for the petitioner has submitted that the learned District Judge, Jodhpur has no jurisdiction to pass the impugned order dated 27th July, 98 as well as the order dated 18.9.98, because he was not duly appointed by the State Government as a Judge of the Family Court, Jodhpur. It is further submitted by the learned counsel for the petitioner that the suit filed u/s 13 of the Hindu Marriage Act and the application filed u/s 10 of the Guardians and Wards Act, in the Family Court, Jodhpur are unfounded and the petitioner had no previous notice of both of them and the impugned order was passed without any notice to the petitio- ner. He has therefore, prayed that this revision petition be admitted and the impugned order passed by the District Judge, Jodhpur while purporting to look after the work of Family Court be set aside. (4). The learned counsel for the non-petitioner has raised a preliminary objection to the effect that in view of Section 19 of the Family Courts Act, 1984, only an appeal lies against the order passed by the Family Court and such appeal is to be heard by a Division Bench and no other appeal or revision lies to any Court from any Judgment, order or decree of a Family Court. It is further contended by the learned counsel for the non-petitioner that the District Judge, Jodhpur while passing the impugned orders, acted in compliance of the Circular dated 30th Septem- ber, 93 issued by this Court and therefore, is cannot be said that the learned District Judge Jodhpur has no jurisdiction to look after the urgent and necessary work of the Judge, Family Court, Jodhpur during the latters absence or during the period when the post of Judge, Family Court, Jodhpur was vacant. It is therefore, submitted by the learned counsel for the non-petitioner that the impugned order passed by the learned District Judge, Jodhpur cannot be said to be without jurisdiction. Regarding the merits of the case, it is submitted by him that the child Chinmaya is still in the custody of the petitioner and now the matter is pending before the Family Court, Jodhpur and it is to be decided by the Judge, Family Court, Jodhpur whether the custody of Chinmaya should be given to the non-petitioner. (5). Regarding the merits of the case, it is submitted by him that the child Chinmaya is still in the custody of the petitioner and now the matter is pending before the Family Court, Jodhpur and it is to be decided by the Judge, Family Court, Jodhpur whether the custody of Chinmaya should be given to the non-petitioner. (5). After carefully considering the contentions advanced by the learned counsel for the parties, it is obvious that, if the impugned orders passed by the District Judge, Jodhpur cannot be said to be the orders passed by the Family Court, Jodhpur then those orders will be subject to the revisional jurisdiction of this Court, because they have been passed by the learned Judge by virtue of post as the District Judge, Jodhpur. Therefore, to the extent of jurisdiction, a revision petition would be maintainable, if it can be shown that the order passed by the District Judge, Jodhpur was without jurisdiction. So far as the cases pending in the Family Court, Jodhpur are concerned on the other hand, if the impugned orders can be said to be the orders of the Judge, Family Court, Jodhpur in the sense that they have been passed by an officer competent to pass them, the provisions contained in Section 19 of the Family Courts Act, 1984 would be applicable and this revision petition would not be maintainable so far as the merits of any judgment, order or decree of a Family Court, is concerned. The appeal, if any, which may be filed u/s 19 alone would be maintainable and it will be heard by a Division Bench. (6). Admittedly, this revision petition is not an appeal within the meaning of Section 19 of the Family Courts Act, 1984. The present petition is only a revision petition and it is maintainable only to the extent which jurisdiction of the District Judge to look after the work of the Family Court, Jodhpur is concerned. (7). (6). Admittedly, this revision petition is not an appeal within the meaning of Section 19 of the Family Courts Act, 1984. The present petition is only a revision petition and it is maintainable only to the extent which jurisdiction of the District Judge to look after the work of the Family Court, Jodhpur is concerned. (7). The Circular No.P.I./12/93, circulated to the Presiding Officers of Courts and to the government vide No. Estt.B2 (iv) 11/86/12250 dated 10th September, 93 is in the following words:- ``All the concerned District & Sessions Judges will look after the urgent and daily routine work of the Court and the office of Judge Family Courts during the absence/leave of the Presiding Officer of the concerned Family Court and in the absence of District & Sessions Judges, Senior most Additional District & Sessions Judges, available at the headquarter will look after the urgent and routine work of the concerned family court. (8). A bare reading of the circular order issued by this Court shows that the District Judges and in their absence, senior most Additional District Judges available at Headquarter are not only authorised, they are directed to look after the urgent and daily routine work of the Court in the office of the Judge, Family Courts. So long, this circular order is not challenged as ultra vires, it cannot be said that the District Judge, Jodhpur was not empowered to look after the urgent and routine work of the Judge, Family Court, Jodhpur during his absence. (9). The learned counsel for the parties have not drawn my attention to any provision of the Family Courts Act, 1984, which may be said to deal with the disposal of urgent and routine work of the Family Courts during the absence of the Presiding Officer, regularly appointed as Judge, Family Court u/S. 4 of the Family Courts Act. It is well established that the provisions of a special law take precedence over the provisions of the general law to the extent they are inconsistent with the provisions contained in the general law. It is not as if the general law does not at all apply to the matters within its purview, even if the special law does not make any provision for such matter. It is not as if the general law does not at all apply to the matters within its purview, even if the special law does not make any provision for such matter. Since the Family Courts Act, 1984 does not make any provision for the disposal of urgent and routine work of the Family Courts during the absence of the Presiding Officers appointing u/S. 4 of the Act, it must be said that the general provisions under which suitable orders may be passed by this court for the disposal of urgent and daily routine work continue to apply. A contrary view is likely to create chaos in the event the officer appointed u/Sec. 4 of the Family Courts Act is absent for any reason or his very appointment is delayed for one reason or the other. High Court, being the highest Court in the State has a constitutional duty to exercise superintending jurisdiction over all the Courts and Tribunals subordinate to it and this jurisdiction has been saved by Article 227 of the Constitution of India. It is therefore, the duty of this Court to see that all the courts subordinate to it function properly and the litigants whose cases are pending in Courts do not suffer unreasonably on account of absence, leave, or any other reason. I am, therefore, inclined to hold that the Circular dated 30th September, 93 issued by this Court was not without jurisdiction and the District Judges and Additional District Judges, empowered under the circular of this Court to look after the urgent and daily routine work of the Court and office of the Family Courts during the absence or leave of the Presiding Officer, were legally empowered to look after the urgent and daily routine work of the Family Courts. (10). For the reasons mentioned above, the contention that the impugned order passed by the learned District Judge were without jurisdiction, cannot be ac- cepted as correct. Consequently, this revision petition has no force. The impugned orders must be regarded as orders passed by the Family Court, Jodhpur. (11). (10). For the reasons mentioned above, the contention that the impugned order passed by the learned District Judge were without jurisdiction, cannot be ac- cepted as correct. Consequently, this revision petition has no force. The impugned orders must be regarded as orders passed by the Family Court, Jodhpur. (11). If the petitioner feels aggrieved by the interim order passed on 27th July, 98, he may, if he is so advised, file an appeal as provided u/s 19 of the Hindu Marriage Act or he may move the Judge, Family Court for recalling or altering the impugned order by exercising his jurisdiction in accordance with law. The interim order dated 27th July, 98 cannot be regarded as a final judgment in the case, and therefore, the learned Judge, Family Court has jurisdiction to consider if that order should be recalled, ordered or modified in view of the facts and circumstances of the case. (12). Since, the application of the non-petitioner filed under the Guardians and Wards Act for obtaining the custody of his son is pending before the Judge, Family Court, it is within the jurisdiction of the learned Judge, Family Court to dispose of the application as early as may be possible in accordance with law. The petition is disposed of accordingly.