Gangadharan &Amp; Anr Vs. State of Kerala &Amp; Ors  Insc 313
(12 May 2006)
& P.K. Balasubramanyan
out of S.L.P. (Civil) No. 25465 of 2005] S.B. SINHA, J :
of the provisions of the Family Courts Act, 1984 (for short "the
Act") in the matter of shifting of a family court from one place to
another, is involved in this appeal which arises out of judgment and order
dated 8.4.2005 passed by the High Court of Kerala.
is a district in Kerala. The District Headquarters is situated at Malappuram.
The District Courts, however, are situated at Manjeri which is about 12 kms. North
of the said place. The State of Kerala established a family court at Manjeri in
the year 1999 in a tenanted premises wherefor a sum of Rs. 6,668/- was payable
by way of monthly rent. The litigant public, the court staff and others
concerned were facing a lot of difficulties in attending the said court. The
Bar Association of Malappuram submitted a representation dated 03.02.2002
seeking the shifting of the Family Court at Manjeri, to Malappuram whereupon
the remarks of the Presiding Officer of the Family Court and the District
Judge, Malappuram were sought for. The District Judge, in his report, pointed
out various deficiencies and lack of infrastructure at Manjeri stating that the
Family Court is required to be shifted to another building. The Presiding
Officer, Family Court also submitted a report inter alia stating that the road
in front of the building is a narrow by-lane. The Court is accommodated in the upstair
portion of a building. There is only one staircase which is used by all
including the Presiding Officer, Court staff and the litigants. On an average
500 to 750 persons remained present everyday before the Family Court, including
women with babies and kids, apart from advocates and staff of the court and,
thus, the building is clearly inadequate to accommodate all these persons.
Family counselling, thus, cannot be conducted in such an atmosphere. It was
reported that if the power supply is off, the court cannot function.
meeting of the Committee of the Judges, Incharge of Administration of the
Family Courts was held in the presence of the in charge of the district
administration on 29.10.2002. In the said meeting, the President of the Bar
Association of Manjeri suggested that the Family Court might be shifted to
another building in the said town itself. When the Bar Association was asked to
find out a building, one was shown which also did not have the requisite facilities.
On the other hand, a Government building was shown to be available at Malappuram,
which although, was situate within the Civil Station premises, but otherwise
found suitable for the purpose of having a Family Court. According to the High
Court, the same satisfied the basic needs for running a family court.
consideration of the materials placed before the High Court, a resolution was
adopted to recommend to the Government to accord sanction for shifting the
Family Court from Manjeri to the Civil Station at Malappuram. The Government of
the State of Kerala although initially requested the High Court to see whether
the Family Court cannot be continued at Manjeri itself, if a suitable building
is available, it yielded to the request of the High Court and issued a
Government Order dated 8.7.2004 directing the shifting of the Family Court from
Manjeri to Malappuram.
petition was filed by the Appellants herein before the Kerala High Court inter alia
for quashing the said order for shifting the court which by reason of the
impugned judgment has been dismissed.
this Court, a constitutional question as regards the authority of the State to
direct shifting of a Family Court having been raised, this Court sought the
assistance of the learned Solicitor General of India.
and application of the provisions of the Family Court vis-`-vis the authority
of the State and the High Court was raised on the premise that Section 3(1)(a)
of the Act will have application in the instant case inasmuch as in the Special
Leave Petition it had been averred that the population in the town of Manjeri
was more than one million.
Act was enacted 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.
expression "Judge" has been defined to mean "the Principal
Judge, Additional Principal Judge or other Judge of a Family Court". Sub-
section (1) of Section 3 of the Act is in two parts. Whereas in terms of Clause
(a) of sub-section (1) of Section 3 it is imperative on the part of the State
to establish a Family Court for every area comprising a city or town whose
population exceeds one million, a discretionary power has been given to the
State to establish Family Courts for such other areas in the State as it may
deem fit and necessary. Section 7 provides for the jurisdiction of the Family
Court. Section 9 enjoins a duty on the Family Court to make efforts for
settlement. In terms of Section 11 of the Act, proceedings are to be held in
camera. Section 20 provides for a non-obstante clause. Section 21 provides for
a power to make rules in terms whereof the High Court may, by notification in
the Official Gazette, make such rules as it may deem necessary for carrying out
the purposes of the Act. Clause (b) of sub-section (2) of Section 21 inter alia
empowers the High Court to make rules as regards holding of sittings of Family
Courts at places other than their ordinary places of sitting.
submission of learned Solicitor General as also of Dr. Rajeev Dhawan, learned
senior counsel is that once a Family Court is established in terms of Clause
(a) of Sub-section (1) of Section 3 of the Act, the State or the High Court
would have no authority to direct shifting thereof to any other area. The
applicability of Clause (a) or Clause (b) of Sub-section (1) of Section 3 would
arise only if the Family Court is to be shifted from a town whose population is
more than one million.
in the Special Leave Petition, the Appellants took the stand that the
population exceeds one million, before us it is categorically stated:
Headquarters of the District is at Malappuram Town. All Government Offices of the said
District are located in Malappuram Town. Malappuram District consists of six Taluks i.e. Eranad, Nilambur,
Perintalmanna, Tirur, Thirurangadi and Ponnani.
Malappuram Town is geographically located at the centre of the District.
The thickly populated taluks of Tirur (population 8,34,817), Thirurangadi
(population 6,19,635), Ernad (population 7,82,850) Perintalmanna (population
5,28,756) and Ponnani are closer to Malappuram whereas the only taluk of Nilambur
is close to Manjeri. It may be stated that the major area of Nilambur Taluk is
reserved forest area and it is the least populated (population 5,09,940) taluk
of the District as evident from the census records." Clause (a) of
Sub-section (1) of Section 3 of the Act will, thus, have no application in the
however, submitted that the emphasis should be laid on the expression 'every
area and not the town having a city whose population exceeds one million'. We,
with respect, cannot subscribe to the said contention. Clauses (a) and (b) of
Sub-section (1) of Section 3 of the Act operate in two different fields.
Whereas in the area which would attract Clause (a), the State is bound to
establish a Family Court, over areas which are not covered by Clause (a), the
State has a discretion to establish or not to establish a Family Court. In the
case of the former, the State may not have any power to shift the Family Court
from the city or town whose population exceeds one million; but we do not find
any reason why a Family Court established at a place having jurisdiction over
an area including more than one town or village cannot be shifted from one
place to another within that area.
terms of Section 21 of the General Clauses Act, 1897, (corresponding to the
relevant provisions in Interpretation and General Clauses Act, 1925), the power
to issue would include the power to amend, vary or rescind, notifications and
orders. If a notification could be issued establishing a Family Court at Manjeri,
we do not see any reason why another notification cannot be issued by the State
to shift the said Court to another place but within the same area of the Family
Court. In terms of Section 21 of the General Clauses Act, the State Government
will indisputably have jurisdiction to abolish a Family Court and establish one
at another place. If such an extensive jurisdiction can be exercised by the
State, we fail to comprehend as to why its jurisdiction should be held to be
limited in the matter of shifting of Court from one place to another but within
the same area, particularly, in view of the fact that in terms of sub- section
(2) of Section 3 of the Act even a change in the area is permissible.
no doubt true, as has been contended by Dr. Dhawan, that a Family Court is
created as a Federal Court under Federal Legislation, but the same, in our
opinion, however, would not mean that the High Court will have no say at all in
the matter of creation or shifting of the Family Courts.
235 of the Constitution of India confers a supervisory jurisdiction upon the
High Court over all the courts subordinate to it. Such jurisdiction can be
exercised by the High Court in respect of judicial as also administrative
matters. Article 236 of the Constitution of India, as referred to by Dr. Dhawan,
provides for an interpretation clause. The expression "District
Judge" would not only be an officer who has been specified in Clause (a)
of Article 236 but would also be such officer who would otherwise be within the
control of the High Court in terms of Article 235 of the Constitution of India.
High Court exercises control over the subordinate courts not only in terms of
the Constitution of India as envisaged under Articles 235 and 227 thereof but
also under other Acts, viz., Code of Civil Procedure and Code of Criminal Procedure.
The officers appointed as the Judge, Family Court are selected by the High
Courts from amongst the existing cadre of the District Judges. The ACRs of the
said Judges are recorded by the High Court. It remains undisputed that there is
a Committee of Judges Incharge of the Administration of the Family Courts. It
may be true that the Act is a Federal Legislation but such Federal Legislation
has been enacted by the Parliament for other purposes also as, for example, the
Motor Vehicles Act, 1988 in terms whereof Motor Accident Claims Tribunals are
jurisdiction to establish courts is again governed by a State Act.
State of Kerala, establishment of courts is governed
by the Kerala Civil Courts Act, 1957. Section 2 of the 1957 Act provides that
in addition to the courts' establishments under any other law for the time
being in force, there shall be classes of civil courts in the State as
specified therein. The qualification of the courts as specified in the said
Section, therefore, is not exhaustive but inclusive of other courts. Section 3
of the Act provides for establishment of District Courts. Section 7 of the said
Act reads as under:
"Court's Location (1) The place or places which any court referred to in
Section 2 shall be held, may be fixed, any may from time to time be altered by
the Government in consultation with the High Court.
The High Court may, with the approval of the Government, direct by notification
in the Gazette that all or any class of proceedings arising in a specified
local area in a district which would ordinarily be instituted in the District
Court, may be instituted before an Additional District Judge of that court
sitting in a place other than the place where the District Judge sits."
Submission of Dr. Dhawan, however, is that the State could have created courts
under the State Acts but not under a Federal Legislation which was permissible
in terms of Entry 1 of List II of the Seventh Schedule of the Constitution of
India. Under Entry 1 of List II of the Seventh Schedule of the Constitution of
India indisputably the State had the exclusive jurisdiction but the situation
has not materially changed by shifting the said provision to List III of the
Seventh Schedule of the Constitution of India. Administration of justice,
constitution and organisation of courts although now is in the Concurrent List,
but only because the Act is a federal legislation, in absence of a clear
provision overriding the provisions of the 1957 Act, the machinery provisions
contained therein would remain operative. There is no conflict between the
provisions of the two Acts; there is no repugnancy. The constitutional power of
the High Court to exercise its control over the subordinate courts, has also
not been and could not have been taken away by reason of the provisions of the
State of Bombay v. Narottamdas Jethabhai and another [AIR 1951 SC 69], this
Court has categorically held:
other words, the argument was that the Provincial Government could create a
court of general jurisdiction legislating under Entry 1 of List II and that it
was then open to both the Central and the Provincial Legislatures to confer
special jurisdiction on courts in respect to particular matters that were
covered by the respective lists. In my opinion, the contention of the learned
Attorney-General that the Act is intra vires the Bombay Legislature under Entry
1 of List II is sound and I am in respectful agreement with the view expressed
by the Chief Justice of Bombay on this point in Mulchand Kundanmal v. Raman Hiralal,
51 Bom. L.R. 86" Mahajan, J. further opined:
am therefore of the opinion that under Item 1 of List II the Provincial
Legislature has complete competence not only to establish courts for the
administration of justice but to confer on them jurisdiction to hear all causes
of a civil nature, and that this power is not curtailed or limited by power of
legislation conferred on the two legislatures under Items 53, 2 and 15 of the
three lists. On the other hand, these three items confer on the respective legislatures
power to legislate when dealing with particular subjects within their exclusive
legislative field to make laws in respect of jurisdiction and powers of courts
that will be competent to hear causes relating to those subjects; in other
words, this is a power of creating special jurisdictions only." In Jamshed
N. Guzdar v. State of Maharashtra and Others [(2005) 2 SCC 591], a
Constitution Bench of this Court held:
"The general jurisdiction of the High Courts is dealt with in Entry 11-A under
the caption "administration of justice", which has a wide meaning and
includes administration of civil as well as criminal justice. The expression
"administration of justice" has been used without any qualification
or limitation wide enough to include the "powers" and
"jurisdiction" of all the courts except the Supreme Court. The
semicolon (;) after the words "administration of justice" in Entry
11-A has significance and meaning. The other words in the same entry after
"administration of justice" only speak in relation to
"constitution" and "organisation" of all the courts except
the Supreme Court and High Courts. It follows that under Entry 11-A the State Legislature
has no power to constitute and organise the Supreme Court and High Courts. It
is an accepted principle of construction of a Constitution that everything
necessary for the exercise of powers is included in the grant of power. The
State Legislature being an appropriate body to legislate in respect of
"administration of justice" and to invest all courts within the State
including the High Court with general jurisdiction and powers in all matters,
civil and criminal, it must follow that it can invest the High Court with such
general jurisdiction and powers including the territorial and pecuniary
jurisdiction and also to take away such jurisdiction and powers from the High
Court except those, which are specifically conferred under the Constitution on the
High Courts. It is not possible to say that investing the City Civil Court with unlimited jurisdiction, taking
away the same from the High Court, amounts to dealing with
"constitution" and "organisation" of the High Court. Under
Entry 11-A of List III the State Legislature is empowered to constitute and organise
City Civil Court and while constituting such court the State Legislature is
also empowered to confer jurisdiction and powers upon such courts inasmuch as
"administration of justice" of all the courts including the High
Court is covered by Entry 11-A of List III, so long as Parliament does not
enact law in that regard under Entry 11-A. Entry 46 of the Concurrent List
speaks of the special jurisdiction in respect of the matters in List III.
in List III is "... Code of Civil Procedure at the commencement of this
Constitution ...". From Entry 13 it follows that in respect of the matters
included in the Code of Civil Procedure and generally in the matter of civil
procedure Parliament or the State Legislature, as provided by Article 246(2) of
the Constitution, acquire the concurrent legislative competence. The 1987 Act
deals with pecuniary jurisdiction of the courts as envisaged in the Code of
Civil Procedure and as such the State Legislature was competent to legislate
under Entry 13 of List III for enacting the 1987 Act." In view of the
aforementioned authoritative pronouncements, we cannot accept the submission of
Dr. Dhawan that the Family Courts should be equated with courts constituted
under the Consumer Protection Act. The Family Courts being courts within the
meaning of Article 235 of the Constitution of India as also the 1957 Act would
be under the supervisory jurisdiction of the High Court and they cannot be
treated to be a class by themselves although their working and functions to
some extent are circumscribed by the provisions of the Act and the Rules thereunder.
in relation to the courts under the Consumer Protection Act, in terms of
Section 16 of the Act, the Chief Justice of the High Court has a role to play.
State of Haryana and Another v. National Consumer Awareness Group and Others
[(2005) 5 SCC 284], this Court has laid down that the manner and initiation of
proposal of consultation with the Chief Justice in terms of Section 16(1)(a) of
the Consumer Protection Act must take place in the manner as laid down by this
Court in Ashish Handa v. Chief Justice of High Court of Punjab & Haryana
[(1996) 3 SCC 145].
learned senior counsel contends that the expression "consultation"
used in Section 3 of the Act would not mean a primacy. The meaning of the said
expression has been considered by this Court in Chandramouleshwar Prasad v. Patna
High Court and Others[(1969) 3 SCC 56], para 7, State of U.P. v. Johri Mal
[(2004) 4 SCC 714], para 55, L & T Mcneil Ltd.v. Govt. of TN, [(2001) 3 SCC
170], paras 4 and 6 and Prakash Chandra Maheshwari v. Zila Parishad [(1971) 2
SCC 489], para 20.
word "consultation" may not mean "concurrence" as has been
held by this Court in Supreme Court Advocates-On-Record Association and Others
v. Union of India [(1993) 4 SCC 441] but this Court is not called upon to go
into the said question in view of the fact that the State of Kerala has agreed
to the suggestion of the High Court and had issued a notification.
then contends that the High Court in making the said recommendations took into
account irrelevant circumstances. The doctrine of proportionality, according to
Dr. Dhawan, would apply in the instant case.
power to shift a court from one place to another involves a jurisdictional
question. The State Government exercised the said jurisdiction in consultation
with the High Court. It agreed to the suggestion of the High Court for shifting
of the Family Court from one place to the other. For the aforementioned
purpose, the High Court can make its recommendations having regard to its
control over the subordinate courts on the administrative side.
Courts are meant for imparting justice. The interest of the litigants should be
uppermost in the mind the court while making such a recommendation.. The High
Court emphasized the need for having a proper building. It emphasised the
requirement for shifting of the court building in the interest of the litigant
public. The High Court has taken all possible steps to retain the court at Manjeri.
It had not only sought for reports from the Judge, Family Court but also from
the District Judge. It has considered the existing infrastructure at Manjeri.
Before making the recommendation, not only all relevant factors were taken into
consideration, but the Appellant Association was also given an opportunity to
furnish full details of other suitable buildings available at Manjeri, for the
proposed shifting. They could suggest only one building. As per the report of
the District Judge, that building was situated at a distance of 2 furlongs
south of District Court Building at Manjeri and was quite inconvenient to
accommodate the Family Court.
High Court for the aforementioned purpose noticed the report of the District
Judge as regard travelling facilities for the litigant public to both the
places, viz., Manjeri and Malappuram. It also looked at the geographic
situation of the two towns. It took into consideration the representations of
both the Bar Associations. We have been shown several photographs to highlight
the absence of even the bare minimum requirements to run a court.
is no place for counselling. Even the records are kept in a toilet.
to lack of space, it had become very inconvenient to house the Family Court in
the said building. The building was constructed for commercial purposes. There
was a lodge (hotel) in the ground floor. A Cooperative Bank is also situated
therein. There is only one staircase and it has only one approach through which
the Judge, Family Court, litigants, advocates, staff and policemen enter the
first floor. The court room is so small that even 15 advocates cannot sit in
it. Advocates and litigants have to wait on the verandah or the staircase when
the cases are called. The building lacked adequate ventilation. Lady lawyers
have no separate area. Even the area earmarked for counselling is used by
advocates to change dresses.
is no privacy at all even for the said purpose.
now consider the number of cases pending before the Family Court from the local
area of Manjeri and of Malappuram :
Type Manjeri Area Malappuram Area MC 265 470 OP 197 353 The constitutional
requirement for judging the question of reasonableness and fairness on the part
of the statutory authority must be considered having regard to the factual
matrix obtaining in each case. It cannot be put in a straight-jacket formula.
It must be considered keeping in view, the doctrine of flexibility. Before an
action is struck down, the court must be satisfied that a case has been made
out for exercise of power of judicial review. We are not unmindful of the
development of the law that from the doctrine of Wednesbury Unreasonableness,
the court is leaning towards the doctrine of proportionality. But in a case of
this nature, the doctrine of proportionality must also be applied having regard
to the purport and object for which the Act was enacted. The Family Court, even
according to Dr. Dhawan, requires special attention. It serves a social
purpose. It is a social welfare legislation. The procedures required to be
followed in the Family Court are different from the procedures which ordinarily
are required to be followed. It must have sufficient space. It must have a counselling
centre. The Family Court must house a room for the family counsellors. There
has to be sufficient space for conciliation. The atmosphere in a Family Court
should be different from an ordinary court.
informed that by and large the existing state of affairs in the Family Courts
situated in the State of Kerala is similar. Adequate facilities and
infrastructure are not available. The State of Kerala is enjoined with a duty to establish Family Courts. It is
imperative on its part to establish a Family Court where Clause (a) of
Sub-section (1) of Section 3 of the Act is attracted but a court can be
established also in cases where Clause (b) thereof is attracted. While
constituting a Family Court the State must provide for all requisite infrastructure
so as to meet the objects for which the Family Courts are required to be
established. A court should not be established only because it is provided for
under the Act. The State must be alive to the situation that it has a duty to
see that the dispute resolution fora are provided with adequate infrastructure.
according to the High Court, the present building is not suitable so as to meet
the requirements of the litigants and because of it, it had taken the decision
to shift the court to a better place, no fault can be found with the said
decision only because the proposed site is situated at a distance of 12 kms. from
the existing court building. We have been shown a map. From a perusal thereof,
it appears that Malappuram is ideally situated geographically for having a
court. It is the district headquarters. Number of cases from Malappuram is also
more than the cases of Manjeri. The representations of the Bar Associations,
although are relevant, cannot be the sole criterion. We have noticed
hereinbefore that representations of the Malappuram Bar Assocation was not the
only consideration which weighed with the High Court for making its
recommendations. It may be true, as has been submitted by Dr. Dhawan that the
State of Kerala in its counter- affidavit has
categorically stated that the shift is temporary. As and when a proposed
building is made available by the State, steps will be taken to shift the
Family Court to that building. We have no doubt that the State would make an endeavour
to make available an exclusive court complex for the Family Court and the High
Court will then take steps to have the court located therein.
is another aspect of the matter which cannot be lost sight of.
Appellant as affirmed an incorrect affidavit as regards the population of the
the decision of the High Court, according to Mr. T.L.V. Iyer, learned senior
counsel appearing on behalf of the Respondent, about a sum of Rs. 10 lakhs had
been spent for making the court room ready. The Special Leave Petition was
filed after a period of seven months from the date of the judgment of the High
Court. The building is ready for housing the Family Court. It may be that it is
within the Civil Station premises, but then we are sure that as and when the
State Government is in a position to provide an appropriate site where a Family
Court can be constituted, the Court will be shifted to that location. Until
then, the present building may be used for holding the courts.
the reasons aforementioned, we do not find any merit in this appeal. It is
dismissed. No costs.