Madras H.C : When the miscellaneous petition came up for hearing, by consent of both parties, the main writ petition itself is taken up for disposal.

Counsel Appeared

Petition appeared in person : Mrs. Nalini Chidambaram, for the Respondents

BAKTHAVATSALAM, J.:

When the miscellaneous petition came up for hearing, by consent of both parties, the main writ petition itself is taken up for disposal.

2. The prayer in the writ petition is as follows : “. . . . to issue a writ of mandamus or any other appropriate writ or order or direction directing the respondent herein to cause the production of the required documents/records pertaining to Mrs. Padmapriya, the film actress wife of the petitioner herein, and her mother, Mrs. Jayalakshmi Raghavan, wife of V. Venkataraghavan, residing at No. 15, Moosa Street, T. Nagar, Madras-17 which are kept in the custody of the respondent herein before the Principal Family Court at Madras forthwith for the purpose of adjudicating the case pending there in Income-tax Application 170 of 1988 in Original Petition No. 1038 of 1988.”

3. Certain proceedings were pending before the family Court which were got transferred from the City Civil Court, Madras, under the Hindu Marriage Act, between the petitioner and the third respondent, who is the wife of the petitioner. In the proceedings before the family Court, i.e., the fourth respondent herein, the petitioner took out a summons to respondents Nos. 1 and 2 to produce certain documents and records pertaining to the assessment of the third respondent and her mother, one Mrs. Jayalakshmi Raghavan, for the purpose of adjudicating the case pending in Income-tax Application No. 170 of 1988 in Original Petition No. 1038 of 1988. The IT Department has filed an affidavit before the family Court which is sworn to by the ITO, Films Ward-1. The petitioner alleges in the affidavit that the IT Department ought to have produced the records before the family Court and the stand taken by the Department in the affidavit before the family Court stating that the family Court has no jurisdiction to issue the summons is not correct and that the documents are required for the purpose of adjudicating on the interlocutory application in the family Court. It is further stated in the affidavit that the refusal on the part of the first respondent to produce the required documents before the family Court would amount to deprivation of reasonable opportunity to adduce sufficient evidence to prove the case.

4. The third respondent has filed a counter-affidavit in which it is claimed that she was an income-tax assessee till the asst. yr. 1983-84 and that xerox copies of income-tax orders for 1982-83 and 1983-84 were already filed in this Court and in the family Court, Madras. It is stated that she has been suffering at the hands of the petitioner who finds ways and means to protract the proceedings. As such, it is further prayed in the counter-affidavit that the family Court may be directed to give a decision on the main original petition itself as well as in the interlocutory application for the maintenance of the petitioner.

5. Mr. Srinivas, the petitioner, appears in person and argues that the documents he requires are all non-classified documents and that the submission by the IT Department before the family Court is not justifiable. He furthe states that the records are necessary for the purpose of proving his case and without these records he is placed in a disadvantageous position, when the properties are standing in the name of his mother-in-law, being the benami of his wife. He states that he requires the assessment records of his wife, who is the third respondent herein, and his mother-in-law, Jayalakshmi Raghavan, from the year 1972 onwards to be produced before the family Court.

6. Mrs. Nalini Chidambaram, learned counsel appearing for the IT Department, contends that the writ petition is not maintainable and that the petitioner has to approach the CIT under s. 138(1)(b) of the IT Act, 1961. She further argues that, without exhausting that remedy, this writ petition is not maintainable and has to be dismissed in limine on that short ground. Learned counsel further argues that the petitioner has to implead his mother-in-law and the non-impleading of his motherin-law is fatal to the writ petition. She further states that certain wide allegations are made against the officers which are not warranted.

7. When a question was put to her with regard to the stand taken by the Department before the family Court in the affidavit, she fairly states that it is filed by the ITO and she cannot support the stand taken in the affidavit.

8. After considering the arguments of Mr. Srinivas, the petitioner who appears in person, and also learned counsel for the respondents, I am of the view that the writ, as prayed for, cannot be issued. I entirely agree with learned counsel for the IT Department that the petitioner cannot approach this Court without exhausting the remedy under s. 138(1)(b). But, at the same time, I am not able to agree with the stand taken by the IT Department before the family Court that the family Court has no jurisdiction to summon the records. Sec. 10 of the Family Courts Act, 1984, provides for the procedure and sub-s. (1) of s. 10 reads as follows : “Procedure generally.—(1) Subject to the other provisions of this Act and the rules, the provisions of the CPC, 1908, and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the CrPC, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil Court and shall have all the powers of such Court.”

9. In view of this clear provision in the Act, prima facie, I am of the opinion that the stand taken by the IT Department before the family Court cannot be sustained. At any rate, since the summons has been taken through the family Court to the IT Department and the IT Department has filed an affidavit before the family Court, I am of the view that it is for the family Court to decide whether the IT Department is bound to produce the records or not. I am of the view that it s premature to decide this question in this writ petition. It is open to the parties to argue the issue whether the record summoned by the petitioner has to be produced before the family Court or not. In the interests of justice, I feel that the family Court has to decide about this issue first, about the calling for the records before giving any decision in Income-tax Appeal No. 170 of 1988 in Original Petition No. 1038 of 1988. As such, I direct the fourth respondent herein, Family Court, Madras, to decide the issue on the basis of the affidavit filed by the IT Department and pass orders within two weeks from the receipt of this order. It is open to the family Court to go into the question bout the applicability of s. 138(1)(b) while considering the issue on hand. Since the petitioner’s mother-inlaw is not impleaded as a party here, it is open to the petitioner to implead her in the family Court. In the same way, in view of s. 13 of the Family Courts Act, I direct the family Court to allow counsel for the IT Department to make the submissions on this issue, after issuing notice. Since I feel that the matter is pending for a long time, even according to the petitioner from the year 1984, the family Court has to take up the matter immediately as stated above and pass orders.

10. As I have already made it clear, the prayer asked for cannot be granted and instead of that, I direct the fourth respondent, Family Court, Madras, to pass an order on the request of the petitioner to summon the records from the IT Department before passing any final order in Income-tax Appeal No. 170 of 1988 in Original Petition No. 1038 of 1988.

11. The petition is ordered accordingly. No costs.

[Citation : 189 ITR 378]