P.S. Subramaniam vs The Presiding Officer, Family Court, Small Cause Court Bldgs, Madras-1 and V. Sivakami

Bakthavatsalam, J.—The petitioner has come up to this Court with the following prayer. The petitioner prays that a writ of Mandamus or such other appropriate Writ or direction in the nature of writ forbearing the first respondent from proceeding further with the O.P. 480 of 1988 on the file of the first respondent herein. Notice of motion has been ordered by Sivasubramaniam, J. on 17.11.1988.

Mr. Sundararajan, learned counsel for the second respondent appears and has filed a counter affidavit also.

The petitioner who claims to be the senior most patron of the Mambalam Sanmarga Samvardhani Sabha who are the hereditary trustees of Shiva Vishnu temple, T. Nagar, Madras, prays that a Writ of Mandamus may be issued forbearing the Family Court constituted under Central Act 66 of 1984. from proceeding further with O.P. 480 of 1988.

The second respondent has preferred a petition for restitution of conjugal rights before the Family Court under S. 9 of the Hindu Marriage Act, and it is under enquiry. The petitioner alleges that second respondent was one of the devotees of the temple and that she used to assist the petitioner during the celebrations at the temple. It seems the petitioner started to show sympathy towards her whenever they met each other in the temple and in other religious places. It is alleged in the affidavit that exploiting his status and age the second respondent began to quarrel with his relatives and created scenes in front of the house of the petitioner which resulted in the petitioner preferring a suit O.S. 4141 of 1987 before the XIV Assistant Judge, City Civil Court, Madras, for an injunction restraining the second respondent from interfering with the family affairs and visiting his house in No. 19, Ramachandra St., T. Nagar, Madras. It is alleged that the suit was in the special list for trial. The petitioner states further that second respondent has apparently given a letter also on 3.4.1987 after receiving a sum of Rs. 10,000 from the petitioner, after settling the matter. It is alleged, at this juncture the second respondent has preferred a petition before the Family Court for restitution of conjugal rights. The petitioner alleges that he is an old man of 75 years with severe heart disease and that the second respondent is only acting with an intention to cause mental torture to him and proceedings were initiated with an extraneous motive. When the case is posted for hearing before the Family Court, the petitioner has come upto this Court as stated above.

The second respondent has filed a counter affidavit. It is claimed in the counter affidavit that this Court cannot exercise its powers under Art. 226 of the Constitution of India for quashing the proceedings before another forum. S. 20 of the Family Courts Act is also referred to in the counter affidavit. It is claimed that the petitioner is her husband and the marriage is well known to many of the devotees of the temple. The counter affidavit refers to certain letters passed between the petitioner and the second respondent. It is claimed in the counter affidavit that the petitioner is hale and healthy and that he voluntarily married her and that he is now attempting to go back. It is lurched claimed that they lived together as husband and wife, in her residence and the petition filed by her in the Family Court is for a relief under the Hindu Marriage Act.

Learned counsel for the petitioner contends that the present proceeding before the Family Court has been riled with an extraneous motive when a suit is pending in the City Civil Court in which the second respondent has also filed a written statement. Further it is contended that the Family Court is not allowing any advocate to appear on behalf of the parties and as such it causes the petitioner a great difficulty and the refusal to engage a counsel is against the fundamental rights of the petitioner.

Learned counsel for the second respondent in contra argues that second respondent is ready and willing to get along with the suit before the City Civil Court and that it has got nothing to do with the proceedings before the Family Court. The proceeding filed in the Family Court is under S. 9 of the Hindu Marriage Act, for restitution of conjugal rights and the second respondent is entitled to file such a petition before the Family Court.

After considering the arguments of both the counsel I am of the view that the prayer asked for cannot be granted at this juncture. Central Act 66 of 1984 enacted by the Parliament has constituted the Family Court under S. 3 of the Act. Under S. 7 of the Act jurisdiction of the Family Court is defined. Explanation to S. 7 of the Act refer & to certain suits and proceeding which is to be conducted in the Family Court. Cl. (a) to Explanation of S. 7 of the Act includes a proceeding for restitution of conjugal rights. S.8 of the Act excludes the jurisdiction of any District Court or any Subordinate Civil Court. Proviso to S. 13 of the Act gives a discretion to the Family Court to seek the assistance of a legal expert as amicus curiae, if the Family Court considers it as necessary in the interest of justice. S. 19 of the Act provides for the appeal from the orders of the Family Court directly to the High Court both on facts and on law. The object of the Act itself is to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected there with. In view of the provisions of the Family Courts Act, 1984, I do not think that a Mandamus can be issued as asked for. It is well settled that no Mandamus can be issued against a statute. As such it is open to the Family Court to proceed with the petition filed by the second respondent. I do not think that this Court can interfere with proceedings of the Family Court and issue a Writ as prayed for by the petitioner and interdict the proceeding which is pending before the Family Court. It is open to the petitioner to raise all the contentions before the Family Court and it is for the Family Court to arrive at the finding on the evidence adduced by the petitioner as well as by the second respondent. A request is made by the learned counsel for the petitioner that considering the age of the petitioner, at least a direction can be issued to the Family Court to permit the petitioner to have the assistance of an Advocate Again no direction can be issued in view of proviso to S. 13 of the Act. But the Family Court. I am sure, will consider in the interests of justice to allow the petitioner to have the assistance of an Advocate. If it chooses to do so, it need not be said that the second respondent can also have the assistance of an Advocate. With these observations, the writ petition is dismissed.