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2017 DIGILAW 694 (ALL)

KALPANA PAL v. SUBHASH CHANDRA BAGHEL

2017-03-06

PANKAJ MITHAL, SHASHI KANT

body2017
JUDGMENT By the Court.—The appellant-wife has preferred this appeal against the judgment and order dated 17.11.2016 passed by the Additional District & Sessions Judge, Fast Track Court, Jhansi deciding her suit for divorce and ordering for judicial separation between the parties. 2. The cause list of fresh cases had revealed the pendency of one another First Appeal No. 15 of 2017 between the parties. Therefore, we ordered for summoning the record of the said appeal. 3. The record of the aforesaid appeal which has been placed before us reveals that the aforesaid appeal was also preferred by the wife and was directed against the same order dated 17.11.2016 passed by the Additional District & Sessions Judge/Fast Track Court, Etawa but it was reported to be cognizable by Single Judge. 4. It appears that the said appeal was reported to be cognizable by Single Judge as it was preferred under Section 28 of the Hindu Marriage Act by mentioning that the order under challenge was of the Additional District & Sessions Judge/Fast Track Court in ignorance the fact that it was passed by it in exercise of powers of the Family Court. 5. Under Section 7 of the Family Courts Act, 1984 a family Court exercises power in respect of the suits and proceedings of the nature referred to in the explanation thereto which includes suits or proceedings between the parties to a marriage for a decree of nullity of marriage or restitution of conjugal rights, judicial separation or dissolution of marriage etc. Therefore, by virtue of Section 7 the suits for cancellation of marriage or judicial separation are triable by Family Court. 6. Section 3 of the said Act empowers the State Government in consultation with the High Court to provide by a notification for the establishment of a family Court and to confer the powers of the family Court upon any other Court. In addition to the establishment of family Courts in each district, the State Government in exercise of its power vide notification dated February 25, 2016 has conferred the powers of the family Court upon Fast Track Courts of the Additional District Judges in some of the districts including Etawa. 7. In view of the above notification, the Fast Track Court of Additional District & Sessions Judge in district Etawa has been conferred with the jurisdiction of the Family Court. 7. In view of the above notification, the Fast Track Court of Additional District & Sessions Judge in district Etawa has been conferred with the jurisdiction of the Family Court. Therefore, the impugned judgment and order is an order passed by the Additional District & Sessions Judge/Fast Track Court in exercise of powers of the Family Court. 8. Accordingly, the aforesaid decision is appealable under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 before the Division Bench of the High Court. 9. In view of the above, this appeal has rightly been reported to be cognizable by Division Bench. 10. The facts as stated above, reveal that the appeals relating to matrimonial matters covered by Section 7 of the Family Courts Act at times are being reported as cognizable by Single Judge as in First Appeal No. 15 of 2017 and at times by Division Bench. 11. This anomaly was noticed by the Single Judge of this Court (Pankaj Mithal, J.) in Matters Under Article 227 No. 10034 of 2016, Amit Gupta v. State of U.P. and another, 2017(2) ADJ 666 and a direction was given for issuance of a circular to all District Judges to ensure that all Fast Track Courts of Additional District and Sessions Judges conferred with the powers of Family Courts should clearly mention their designation of Family Court as well while dealing with or deciding matrimonial matters contemplated by Section 7 of the Family Courts Act. 12. The Registry of this Court was also directed to submit proper report regarding the maintainability of petitions or appeals arising from such matrimonial proceedings. 13. Despite the above, the appeals arising out of suits or proceedings between the parties to a marriage for a decree of nullity of marriage or restitution of conjugal rights, judicial separation or dissolution of marriage etc. are sometimes reported to be cognizable by Single Judge instead of Division Bench ignoring the fact that the orders or proceedings under challenge are of the Additional District & Sessions Judge/Fast Track Court in conferment of the jurisdiction of the Family Court making them appealable under Section 19 of the Act before the Division Bench of this Court. 14. are sometimes reported to be cognizable by Single Judge instead of Division Bench ignoring the fact that the orders or proceedings under challenge are of the Additional District & Sessions Judge/Fast Track Court in conferment of the jurisdiction of the Family Court making them appealable under Section 19 of the Act before the Division Bench of this Court. 14. Accordingly, we reiterate for issuance of an appropriate and necessary circular, if not already issued, by the Registry of this Court to all the District Judges to ensure that all Fast Track Courts of Additional District & Sessions Judge conferred with the powers of Family Court should clearly mention their designation as Family Court while dealing or deciding the matrimonial matters as envisaged under Section 7 of the Family Courts Act. 15. This would avoid incorrect reporting by the office of the Stamp Reporter. 16. At the same time, the Stamp Reporter is also cautioned to take care in reporting as to the cognizablity of the appals arising out of orders passed by the Additional District & Sessions Judges/Fast Track Courts in matrimonial matters. 17. This appeal which has rightly presented before the Division Bench but is reported to be beyond time by 33 days. 18. We have heard Sri Naresh Kumar Pal, learned counsel for the appellant-wife. 19. The appellant-wife is also present pursuant to the direction of the Court issued earlier requiring her presence. 20. Sri Arvind Kumar Srivastava, counsel for the appellant-wife in First Appeal No. 15 of 2017 is also present. 21. Having perused the two appeals and upon hearing the appellant-wife and the respective counsel appearing for her in both the appeals, we find this appeal is noting but a successive appeal challenging the same order which has been challenged by her in First Appeal No. 15 of 2017. 22. We would have taken action against the appellant-wife for filing successive appeals for the same cause of action but for the reasons which are disclosed by her to the Court, we refrain ourselves from commenting upon sorry state of affairs which are prevailing in this Court reflecting upon the conduct of the lawyers and in order to cut short the controversy and to avoid indecency, we dismiss this appeal as not maintainable in view of the earlier appeal filed by the appellant-wife. 23. 23. Sri Naresh Kumar Pal, learned counsel is directed to return all papers relating to this appeal to the appellant-wife. She is permitted to continue her earlier First Appeal No. 15 of 2017 in accordance with law. 24. The Stamp Reporter is directed to submit a fresh report on the said appeal and it may thereafter be placed before the appropriate Bench for consideration. 25. A copy of this order may be made available to the Registrar General and the Stamp Reporter and another copy be placed on record of First Appeal No. 15 of 2017. 26. The appeal is dismissed.