Whether Family Court is empowered to lay down its own procedure in contentious matters?

  Learned counsel for the review petitioner contended that by virtue of Section 10(3) of the Act, the Family Courts are empowered to lay down its own procedure and therefore, insistence on meticulous adherence to the provisions of the CPC may be against the spirit of the legislation. We are unable to accept this argument for the following reasons. Section 10 of the Act deals with in generality the procedure to be followed in the Family Courts. It is to be remembered that a Family Court, as per the statute, is an entity having both civil and criminal jurisdictions. Disputes pertaining to family falling within Section 7 of the Act, whether it be a civil action or a criminal case, stands exclusively transferred to a Family Court by operation of Section 8 of the Act. Going by the provisions in the Act, it cannot be said that Family Courts are either purely Civil Courts or purely Criminal Courts. Actually, powers of a Civil Court and that of a Criminal Court have been conferred by the statute on the Family Courts. Sub-section (1) of Section 10 of the Act vividly indicates that subject to other provisions in the Act and Rules, the provisions in the CPC and of any other law for the time being in force, shall apply to suits or proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure (in short, Cr.P.C.) before a Family Court. It is also explicitly stated that a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. Sub-section (2) of the said Section makes it clear that the provisions in the Cr.P.C. shall apply to the proceedings before the Family Court falling under Chapter IX of that Code. These provisions in Section 10 of the Act certainly pertain to matters in which the parties put up a contest before the Court. Intent and purport of establishment of Family Courts are relevant for interpreting Sub-section (3) of Section 10 of the Act. Preamble to the Act shows that it is intended 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. Section 9 of the Act mandates that the Family Court shall make an endeavour to settle the dispute in the first instance. If we keep in mind the object of the Act and the functions of the Courts established thereunder, there will be no difficulty in appreciating Section 10(3) of the Act. The said Sub-section makes it clear that a Family Court need not be detained by the provisions in Sub-section (1) or (2) of Section 10 of the Act in laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceeding or at the truth of the fact alleged by one party and denied by another. This sweeping power is exercisable only when the Family Court makes an endeavour to settle the disputes between the parties in a suit or proceeding. That is, the power given to Family Court is to achieve the avowed object of the Act. Based on this provision, it cannot be contended that the Family Courts are not bound to follow the respective procedural laws, depending on the nature of the jurisdiction exercised, to adjudicate a contested suit or proceeding. Therefore, it cannot be contended that the procedure under CPC and other relevant Rules are totally inapplicable in a proceeding before the Family Court. Freedom under Section 10(3) of the Act can only be availed for effectuating a settlement between the parties, which is the sacred object of the Act and it cannot be used in contested proceedings.{Para 10}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

R.P. No. 507 of 2014 (R) in O.P. (FC) 4076/2013

Decided On: 03.07.2015

Sindhu P.K. Vs.  Sunil Kumar P.A. and Ors.

Hon'ble Judges/Coram:

V.K. Mohanan and A. Hariprasad, JJ.

Author: A. Hariprasad, J.

Citation: MANU/KE/0865/2015.

Read full Judgment here: Click here.

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