IMPORTANT POINT
Term ‘Proceeding’ appearing in Sections 7 and 8 does not include an appeal or revision.

L. Mohapatra, J. —In this writ application an important question of law relating to jurisdiction of the Family Courts established under the Family Courts Act, 1984 is raised.

2. The background of the case is that the petitioner had filed Mat. Case No.465 of 2002 before the learned Civil Judge (Senior Division), Bhubaneswar praying for dissolution of marriage and a decree of divorce under Section 13 (1)(ia) of the Hindu Marriage Act. The suit was dismissed by the learned Civil Judge by judgment and decree dated 18.6.2008 and 14.7.2008 respectively. The petitioner thereafter preferred an appeal by Matrimonial Appeal No.5 of 2008 against the said judgment and decree of the learned Civil Judge. The learned District Judge, Khurda at Bhubaneswar allowed the appeal on 21.1.2010. After the said judgment was delivered by the learned District Judge, a petition was filed by the opposite party under Order 41, Rule 21 read with Section 151 of the Code of Civil Procedure to set aside the said judgment and decree passed in appeal and praying for rehearing of the appeal on merit. The learned District Judge by order dated 26.8.2010 allowed the application on payment of cost and posted the case to 30.9.2010. Thereafter by order dated 21.12.2010, the learned District Judge transferred the appeal to the Court of the learned Judge, Family Court, Bhubaneswar which was established during the pendency of the appeal. Challenging the said order of the learned District Judge transferring the case to the Court of the learned Judge, Family Court, Bhubaneswar, this writ application has been filed.

3. Section 7 of the Family Courts Act, 1984 prescribes jurisdiction of the Family Courts. Section 8 deals with exclusion of jurisdiction in relation to suits and proceedings. Section 8 (a) provides that where a Family Court has been established for any area, no District Court or any Subordinate Civil Court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section. Explanation to sub-section (1) of Section 7 describes the nature of suits and proceedings to be decided by Family Courts. The nature of suits are described in (a) to (g) of the said Explanation attached to sub-section (1) to Section 7. On perusal of the entire provision contained in Section 7, it appears that the same relates to a suit or a proceeding. The word ‘proceeding’ has not been defined in the Act. With reference to these two sections of the Family Courts Act, 1984, this Court is now called upon to decide as to whether an appeal pending before the learned District Judge against a decree passed by the Civil Court in a case where prayer for dissolution of marriage has been turned down can be transferred to a Family Court which was established during pendency of the appeal before the District Judge. The learned counsel appearing for the parties, therefore, made two submissions relevant for the purpose of the case.

(1) The term ‘proceeding’ appearing in Sections 7 and 8, whether shall include an appeal or not?

(2) In absence of any provision in the Family Courts Act, 1984 whether the Judge, Family Court can exercise appellate jurisdiction?

A decision of the Supreme Court in the case of Sri Vishnu Awatar etc. etc. v. Shiv Autar and others, AIR 1980 SC 1575 was cited at the bar. While dealing with the case in relation to Section 3 of the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978, the Supreme Court observed that the words “or other proceedings” in the phrase “cases arising out of original suits or other proceedings” refer to proceedings of final nature. These words have been added, in order to bring within the purview of the revisional jurisdiction, orders passed in proceedings of an original nature, which are not of the nature of suits, like arbitration proceedings. This phrase cannot include decisions of appeals or revision