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2016 DIGILAW 4113 (ALL)

AMIT GUPTA v. STATE OF U. P.

2016-12-20

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard learned counsel for the petitioner. 2. In Original Suit No. 7 of 2016 (Amit Gupta v. Smt. Ranjana) probably for divorce under Section 13 of the Act, the application of the respondent No. 2-wife for maintenance under Section 24 of the Act has been allowed by the impugned order dated 17.9.2016 passed by the Additional District Judge/Fast Track Court, Etah. 3. The above order passed by the Additional District Judge/Fast Track Court, Etah, is under challenge in this petition under Article 227 of the Constitution of India. 4. Ordinarily, such matrimonial matters in view of Section 7 of the Family Court Act, 1984 (hereinafter referred as Family Court Act) are cognizable by Family Court and so are the applications for maintenance, if any, filed under Section 24 of the Act. 5. In the State of U.P., by virtue of Section 3 of the Family Courts Act, Family Courts have been established in each and every Judgeship at the District level, though, in three districts of the State, namely, Amethi, Sambhal and Shamli, they are not functional. In many of the districts, Additional Family Courts have been sanctioned vide GO dated 20.10.2016. 6. In other words, all districts of the State of U.P. have Family Courts except three districts refereed to above, where the said Courts are not functional as yet. It means that there is Family Court in District Etah as well. 7. In view of the above, the petition for divorce or an application for maintenance under Section 24 of the Act in District Etah is cognizable by the Family Court and it cannot be dealt with by any other Court. 8. The State of U.P. vide Notification No. 7/2016/162/VII-Nyaya-2-2016-27-G-2016 dated 25.2.2016 in consultation with the High Court has been pleased to confer the powers of the Family Courts to the Fast Track Courts of Additional District and Sessions Judges also, in some of the district, which includes the District of Etah as well. 9. 8. The State of U.P. vide Notification No. 7/2016/162/VII-Nyaya-2-2016-27-G-2016 dated 25.2.2016 in consultation with the High Court has been pleased to confer the powers of the Family Courts to the Fast Track Courts of Additional District and Sessions Judges also, in some of the district, which includes the District of Etah as well. 9. Thus, in view of the establishment of the Family Court, Etah and the investure of the powers of the Family Courts upon the Fast Track Courts of Additional District and Sessions Judges, the matrimonial matters cognizable under Section 7 of the Family Courts Act by the Family Court in District Etah are not only dealt with by the Family Courts but by the Fast Track Courts of Additional District and Sessions Judge also. 10. In view of the above, the order impugned dated 17.9.2016 passed by the Additional District Judge/Fast Track Court, Etah is an order passed in exercise of the powers of the Family Court by virtue of the Notification dated 25.2.2016. 11. A Full Bench of this Court in Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava, 2005(23) LCD 1, has ruled that an appeal would lie under Section 19 of the Family Courts Act against an order passed under Section 24 of the Act for grant of interim maintenance. 12. In view of the above Full Bench decision, as the order impugned is an order deciding the application for interim maintenance under Section 24 of the Act in exercise of the powers of the Family Court as conferred upon the Fast Tract Courts of the Additional District and Sessions Judge, the aforesaid order is appealable under Section 19 of the Family Court. 13. In view of the above, as the petitioner has an alternate statutory remedy available with him to file an appeal, it is not proper for me to entertain this petition in exercise of my supervisory power under Article 227 of the Constitution of India. 14. In fact, the Office itself ought should have reported that the petition is not maintainable in view of above referred Full Bench decision but it appears that the Office failed to make such an endorsement as the order do not specifically mentions that it has been passed by the Family Court. 15. 14. In fact, the Office itself ought should have reported that the petition is not maintainable in view of above referred Full Bench decision but it appears that the Office failed to make such an endorsement as the order do not specifically mentions that it has been passed by the Family Court. 15. In view of the above, it is directed to issue a circular to all the District Judges to ensure that all Fast Tract Courts of Additional District and Sessions Judge conferred with the powers of Family Courts should clearly mention their designation as Family Court as well while dealing or deciding the matrimonial matters as envisaged under Section 7 of the Family Courts Act. 16. At the same time, the Registry is also directed to ensure that in future all such matrimonial matters decided by the Fast Tract Courts of Additional District and Sessions Judge, a proper report be submitted regarding the maintainability of the petition when such petitions are presented for reporting. 17. The petition is dismissed on the ground of alternate remedy with the above directions. 18. The certified copy of the impugned order, annexed with the petition, may be returned to the counsel for the petitioner.