Procedural Aspects of Family Courts in India: 5.1 Overview

CHAPTER V
PROCEDURAL ASPECTS OF FAMILY COURTS IN INDIA
5.1 Overview
In this chapter the researcher has discussed about the procedure adopted in family
courts in India. The procedure in essence is non-adversarial which is based on the
alternative methods of disputed resolution via mediation, conciliation and
arbitration. However it also uses the adversarial processes for amicable and
speedy resolution of family disputes pertaining to marriage, divorce, custody,
maintenance etc.
5.2 Procedure in Family Court: General Overview
Chapter IV of the Act deals with the procedure of the family court in deciding
cases before it (sec. 9). It has been made incumbent on these courts to see that the
parties are assisted and persuaded to come to a settlement, and for this purpose
they have been authorized to follow the procedure specified by the High Court by
means of rules to be made by it. If there is a possibility of settlement between the
parties and there is some delay in arriving at such a settlement, the family court is
empowered to adjourn the proceedings until the settlement is reached. Under
these provisions, different High Courts have specified different rules of procedure
for the determination and settlement of disputes by the family courts. In the rules
made by the Madhya Pradesh High Court, the family court judge is also involved
in the settlement, and if a settlement cannot be reached then a regular trial
follows. It is also provided that the proceedings may be held in camera if the
family court or if either party so desires. The family court has also been given the
power to obtain assistance of legal and welfare experts.
Section 13 provides that the party before a Family Court shall not be entitled as
of right to be represented by a legal practitioner. However, the court may, in the
interest of justice, provide assistance of a legal expert as amicus curiae. Evidence
may be given by affidavit also and it is open to the family court to summon and
P r o c e d u r a l A s p e c t s o f F a m i l y C o u r t s i n I n d i a | 141
examine any person as to the facts contained in the affidavit. The judgement of
the family court in concise and simple containing the point for determination
decision and the reason for the same. The decree of the Family Court can be
executed in accordance with the provisions of the CPC or Cr.P.C. as the case may
be. An appeal against judgement or order of family court lies to the High Court.
The Act gives power to each of the High Courts to make rules for the procedure
to be followed by the family courts in arriving at settlements and other matters.
The Central Government has been given the power to make rules prescribing
additional qualifications for appointment of a Judge of the family court. The State
Government has also been empowered to make rules providing for, inter alia, the
salaries of family court judges, terms and conditions of service of counsellors and
other procedural matters
5.3 Dispute Resolution via Settlement
Section 9 of the Act casts a duty on Family Court to make efforts for
settlement in family disputes and to assist and persuade the parties in
arriving at a settlement in respect of the subject-matter of the suit or
proceeding. Section 9 of the Act deals with duty of Family Court to make
efforts for settlement. Family Court can consider alternative mode of
reconciliation between parties. The reconciliation by way of amicable
settlement of their dispute by divorce could also be arrived at. 1 This
section corresponds to reconciliatory part of section 23(2) of the Hindu
Marriage Act and Section 34(2) of the Special Marriage Act2.
In Anita Agarwala v. Santosh Kumar Mohanty3, it was held that where once the
Family Court is satisfied that there is possibility of settlement, court can
make an endeavour for such settlement but in the absence of a rule
directing the parties to the counselling centre cannot be held to be valid
though High Court may issue such direction under section 9 of the Act.
1
Rakesh Harsukhbhai Parekh v. State of Maharashtra, AIR 2011 Born 34
2
H.K. Saharay, Laws of Marriage and Divorce, Eastern Law House, 2007, New Delhi at
612
3
1997 (2) HLR 204
Section 9 is not mandatory in nature and family court is in general

obligation but it shall not invalidate any legal proceeding as in a case
where the husband never appeared in spite of several opportunities and ex-
parte decree of divorce was granted in favour of wife and the same was
challenged on the ground that reconciliation proceedings were not
undertaken, it was held that since the husband did not appear before the
Court at all there was no possibility to the Family Court to try for
reconciliation and hence the decree of divorce cannot be held to be
invalid4.
In Rina Chanda v. Sitangshu Sekar Chanda5, it was held that since it is the
duty of the Family Court to make efforts for settlement, if the Family
Court had not followed the procedure and dissolved the marriage, such
judgment cannot be sustained.
In Romila Jaidev Shroff v. Jaidev Rajnikanth Shroff6, the nature of section 9

was discussed and it was held that virtually, the litigation before the Family
Court is a mixture of inquisitorial trial, participatory form of grievance,
redressal and adversarial trial and as the Family Court is left to device, its
own practice, it can have a judicious mixture of all three of them and can as
well proceed under any them exclusively. In Lata Pimple v. Union of India7 it
was held that classification of cities on the basis of population for
establishing Family Courts is not violative of Article 14 of the Constitution
of India.
Family Court is a court which decides the disputes in exercise of the

state's judicial power conferred on it by a statute in a judicial manner and
declare the rights of the parties. Family Court when exercising powers and
jurisdiction relating to the matters referred to in Explanation to section 7(1) of
the Act is a Civil Court and as such High Court has the jurisdiction to
4
Jayesh Thakur v. Anju Bhatta, 2000 (2) Marri LJ 48.
5
1997 (3) Civil LJ 490
6
2000 (3) Bom LR 14
7
AIR 1993 Bom 255
transfer the cases from one Family Court to another under sections 22, 23
and 24 of the C.P.C.
In case of Smruii Paharia v. Sanjay Pahariya8, it was held that, “It is

only the mutual consent of the parties which gives the Court the
jurisdiction to pass a decree for divorce under section 13B (of the Hindu
Marriage Act) via Conciliation and Settlement.
5.4 ADR & Family Court
Discussing about the nature of family court Supreme Court recently

rejected to admit family court within the natural meaning of court 9. It
outlined the basic philosophy of family court. It observed that in its 59th
Report Law Commission of India emphatically recommended that the
court in dealing with the disputes concerning family ought to adopt an
approach radically different from the adopted in ordinary civil
proceedings and that it should make reasonable efforts for amicable
settlement before the commencement of trial. The same view was
reiterated in the 230th Report of Law Commission of India.
Dr. D. K. Singla10 highlights the reason why ADR system must be

used in resolution of family disputes in following words, “Modern
materialistic approach of our society has augmented the process of post
marriage maladjustment. The pure legal approach under traditional
justice system has complicated the problem instead of resolving it. The
main reason for this is that the approach which has to be socially oriented
is devoid of social ethos, which embarks upon reconciliation by
addressing the problem from diagnostic and prognostic angle.”
8
AIR 2009 SC 2840
9
S.D. Joshi v. High Court of Judicature at Bombay AIR 2011 SC 848
10
Dr. D.K. Singla, “Family Courts: Need of The Hour” Punjabi University Law Journal,
109-118 at 117.
Dr. Rajini Ram11 emphasise the use of ADR in family disputes in

following words, “Today the need of the hour is a specialised handling of
these personal problems with a view to reconcile, resolve and assist the
parties with a therapeutic treatment. The entire view of the Judiciary has
to undergo a radical change and a surgery has to be done to old system of
litigation where failure or success was overwhelmingly important in a
legal battle.”
Justice Dilip Raosaheb Deshmukh highlightes the issue of ADR in

family courts in his article. He observed that, “The Family Courts Act,
1984 is intended to “promote conciliation in and secure speedy
settlement of disputes relating to marriage and family affairs and for
matters connected therewith”. In all such cases the primary objective is to
preserve the institution of marriage and to promote the welfare of
children through settlement of disputes by conciliation and counselling.
For the first time the law provides for judges to take the assistance of
professionals, counsellors, medical experts and NGOs. In a radical
departure parties are not entitled to take as of right the assistance of
lawyers. This statute recognises that matrimonial disputes can and should
be amicably resolved through conciliation and mediation.”12
The duty of making or amending laws is on the legislature but to develop it and
to interpret it to suit the needs and circumstances of the society is the call of the
judiciary. Hence, unless and until the beneficial provisions of the matrimonial
legislation promoting and advocating reconciliation in matrimonial disputes in
India is favourably interpreted and strictly implemented by the courts, the letter
of law may be an illusory mirage which remains on the statute book only. It is
therefore the solemn duty of the matrimonial courts in India to ensure that the
mandatory settlement efforts are actually put into practice and parties are
11
Dr. Rajini Ram, “Judicial Approach to Cases Relating to Divorce Under The Family
Courts Act”, AIR 1999 Journal 204.
12
Justice Dilip Raosaheb Deshmukh, “Efficacy of Alternative Disputes Resolution
Mechanisms In Reducing Arrears of Cases” Nyaya Deep Vol X Issue 2, April
1999, pp 21-29 at 25.
encouraged to actually utilize them for out-of-court settlements. Thus, there is a

heavy burden on the courts to discharge this solemn duty failing which it will
neither be possible nor useful to enforce reconciliatory measure in matrimonial
disputes in the Indian jurisdiction. Accordingly, it would be most useful to cite
and quote some recent prominent verdicts of superior Indian courts which have
stressed and highlighted the dire necessity of the beneficial provisions of Indian
legislation which provide mandatory reconciliation procedures.
Section 23 of the Hindu Marriage Act, 1955 and Order XXXII-A of the Code of
Civil Procedure, 1908 and the duty enjoined upon the court came up for
interpretation before the Supreme Court recently in the case, Jagraj Singh v. Bir
Pal Kaur13 the Indian Apex Court, in its landmark judgment in that case, held as
follows, “From the above case law in our judgment, it is clear hat that a court is
expected, nay, bound, to make all attempts and section (2) of section 23 is a
salutary provision exhibiting the intention of the parliament requiring the court 'in
the first instance' to make every endeavor to bring about a reconciliation between
the parties. If in the light of the above mentioned intention and paramount
consideration of the legislature in enacting such provision, an order is passed by a
Matrimonial Court asking a party to the proceeding (husband or wife) to remain
personally present, it cannot successfully be contented that the court has no such
power and in case a party to a proceeding does not remain present, at most, the
court can proceed to decide the case ex parte against him/her. Upholding of such
argument would virtually make the benevolent provision nugatory, ineffective
and unworkable, defeating the laudable object of reconciliation in matrimonial
disputes. The contention of the learned counsel for the appellant therefore cannot
be upheld.”
Hence, the Order of the Apex Indian Court upholding the directions of the High
Court summoning the respondent - husband in the above case through non-
bailable warrants clearly reflects the legislative intent of attempting mandatory
reconciliation procedures. This judgment of the Supreme Court clearly confirms
13
JT 2007 (3) SC 389.
that settlement efforts in matrimonial matters are not an empty meaningless ritual
to be performed by the matrimonial court. The verdict clearly reflects the
benevolent legislative purpose.
A novel question came up for decision before the High Court of Kerala in Bini v
K. V.Sundaran14 i.e., whether conciliation is mandatory after the introduction of
the Family Courts Act, 1984, even on the excepted grounds of conversion to
another religion, renunciation of the world, mental disorder, venereal diseases
and leprosy. Calling the Family Courts Act, 1984 a special statute, and its
provisions to make attempt at reconciliation mandatory at the first instance, the
High Court held, “The parties can disagree on matters of faith and still lead a
happy marital life if they could be convinced that matters of faith should not
stand in the way of union of hearts. Thus though under the Hindu Marriage Act,
1955, no endeavor for reconciliation need be made in a petition for divorce on the
ground of conversion to another religion, or other grounds excepted under
Section 13 (1) of the Hindu Marriage Act, 1955 or on similar or other grounds
available under any other law also, after the introduction of the Family Courts
Act, 1984, the Family Court is bound to make an endeavor for reconciliation and
settlement. The requirement is mandatory. That is the conceptual change brought
out by the Family Courts Act, 1984 which is a special statute.”
The Court further said that, “The primary object is to promote and preserve the
sacred union of parties to marriage. Only if the attempts for reconciliation are not
fruitful, the further attempt on agreement on disagreement may be made by way
of settlement15.”
Hence, from a reading of the above judgment it is clear that the beholden duty
cast upon the matrimonial courts to attempt mandatory reconciliation cannot be
avoided and cannot be circumvented even when divorce is sought on certain
exceptional grounds which under the HMA and SMA do not provide compulsory
settlement action. Still further, stressing the need to treat the cases pertaining to
14
AIR 2008 Kerala 84.
15
Para 3 & 7 of judgment.
family matters in a humanitarian way, the Supreme Court of India in the case
Baljinder Kaur v. Hardeep Singh16 laid down that "stress should always be on the
preserving the institution of marriage. That is the requirement of law. One may
refer to the objects and reasons which lead to setting up of Family Courts under
the Family Courts Act, 1984. For the purpose of settlement of family disputes
emphasis is "laid on conciliation and achieving socially desirable results" and
eliminating adherence to rigid rules of procedure and evidence.”17
The Supreme Court further held that “it is now obligatory on the part of the
Family Court to endeavor, in the first instance to effect a reconciliation or
settlement between the parties to a family dispute.” Even where the Family
Courts are not functioning, the objects and principles underlying the constitution
of these courts can be kept in view by the Civil Courts trying matrimonial
causes18. The Supreme Court held that the objectives and principles of section 23
of the Hindu Marriage Act, 1955 govern all courts trying matrimonial matters.19
Deciding on the importance of making an attempt at reconciliation at the first

instance, a Division Bench of the Calcutta High Court in Shiv Kumar Gupta v
Lakshmi Devi Gupta20 found that the compliance with section 23(2) of the Hindu
Marriage Act, 1955 is a statutory duty of the judge trying matrimonial cases. The
court in this case relied upon the decision of the Supreme Court in Balwinder
Kaur v Hardeep Singh and held that: “On a reading of Section 23(2) of the Act
and on the perusal of the judgment in Balwinder Kaur on the interpretation of
Section 23(2) this Court held that the decree, which was passed without
complying with Section 23(2) of the said Act, cannot be sustained21.”
In another perspective, in Love Kumar v. Sunita Puri22 it was held that the
matrimonial court had acted in haste to pass a decree of divorce against the
16
AIR 1998 SC 764.
17
Para 9 of the judgment.
18
Para 10 & 11 of judgment.
19
Para 15 of judgment.
20
2005 (1) HLR 483
21
Para 8 of the judgment
22
AIR 1997 P&H 189.
husband for his non-appearance at the time of reconciliation proceedings. The

High Court accordingly set aside the divorce decree and remanded the matter
back to the matrimonial court to be decided on merits. The object of Section
23(2) of the HMA was explained in the following terms in paras 19 and 21 of this
judgment as follows: “Under S. 23(2) of the Act it is incumbent on the
matrimonial Court, to endeavour to bring about reconciliation between the
parties, a great responsibility is cast on the Court. A Hindu marriage is not
contractual but sacrosanct, it is not easy to create such ties but more difficult to
break them; once annulled, it cannot be restored. A Judge should actively
stimulate rapprochement process. It is fundamental that reconciliation of a
ruptured marriage is the first duty of the Judge. The sanctity of marriage is the
corner stone of civilization. The object and purpose of this provision is obvious.
The State is interested in the security and preservation of the institution of
marriage and for this the Court is required to make attempt to bring about a
reconciliation between the parties. However, omission to make attempts at
reconciliation will not take away the jurisdiction of the Court to pass any decree
under the Act. This is not correct to say that in a divorce case reconciliation
efforts have to be timed immediately preceding the grant of decree and not at any
other stage of the proceedings of the trial. Such an attempt can be and should be
made at any stage. The matrimonial Court is required to call parties and make a
genuine effort for their reconciliation, there is not even a whisper in this provision
that the matrimonial Court has the power to strike off the defence of that spouse,
who after being given opportunities for reconciliation fails to appear.
But under S. 23(2) of the Act neither such a liability is cast on the one
spouse nor is such a right given to the other spouse. Reconciliation is a mutual
dialogue to bury their differences. A duty is cast on the Court to call the parties at
the initial stage for reconciliation. Even before delivering judgment and decree,
the Court can make effort for reconciliation. Thus, the stage of trial for calling the
parties for reconciliation is left to the discretion of the Court. “
From a reading of the above judgments, it is clear that though

reconciliation is a mandatory process, the timing and stage at which it is to be
implemented may vary depending on the facts and circumstances of each case.
At the same time causing prejudice to the rights of one party by striking off the
defence or dismissing the petition may actually work injustice to the rights of
such party. Therefore, the matrimonial court in its wisdom may fashion and
design the stage of attempting matrimonial reconciliation depending on the facts
of each case without causing prejudice to the substantive rights of the parties.
However, at the same time, the matrimonial court ought not to give the
mandatory settlement procedure a go by.
In another case, the High Court of Allahabad called it the bounded duty of
the Family Court for making an attempt for conciliation before proceeding with
the trial of the case23.In a very recent case titled Aviral Bhatla v. Bhavana
Bhatla24, the Supreme Court has upheld the settlement of the case through the
Delhi mediation centre, appreciating the effective manner in which the mediation
centre of the Delhi High Court helped the parties to arrive at a settlement. From a
joint reading of the recent pronouncements of law discussed above, it can be apt
to conclude that there is a growing emphasis on the need for attempting
mandatory reconciliatory measures and wherever matrimonial courts have been
lacking in their duties to do so, superior Indian courts have stepped in, to set the
records straight. Therefore, there is a growing jurisprudence to adapt to out of
court settlement reconciliation rather than litigating in matrimonial courts.
However, the performance of this mandatory exercise ought not to be reduced to
an empty ritual or a meaningless exercise. Otherwise, the utility of the beneficial
provision will be lost.
5.5 General Procedure
23
Rajesh Kumar Saxena v. Nidhi Saxena 1995 (1) HLR 472.
24
2009 SCC (3) 448
Section 10 of the Act deals with the general procedure of family court. It
declares the family Court to be a civil Court and it shall have all the
powers of civil court under chapter IX of Cr.P.C. like issuance of
commission for inquiry, examine on oath secure attendance of individual
or documents. The nature of proceedings before it shall be judicial in
nature. Moreover the family court can lay down its own procedure of
functioning.
Section 10 of the Act deals with procedure generally. The words

"any other law for the time being in force" are comprehensive enough to
include the provisions of the Limitation Act, 1963 also and hence the
provisions of the said Act are applicable to the proceedings under Family
Courts Act, 1984. Family Court is a Civil Court. Section 89 of Civil
Procedure Code enjoins Family Court to resolve dispute by alternative
mode including mode of mediation25. Delhi High Court in a case26
observed about the procedure of family court in general. It observed that
procedure and the rights of a party in a proceeding before family court are
materially different from if such proceeding has been before ordinary civil
court. The judge of a family court is empowered to adjourn the
proceedings for the purpose of settlement and which can lead delays in
getting the relief. The judge of a family court is empowered to devise his
own procedure and which may not be in consonance with ordinary civil
court. The rules of admission and recording of evidence and for preferring
appeal and the rights of appeal/revision are considerably curtailed.
The procedure prescribed under sections 10, 14, 15, 16 of the Family
Courts Act, 1984 cannot be said to be more drastic and therefore per se
illegal, discriminatory and violative of Article 14 of the Constitution of
India. In Srinivasan v. Income-Tax Officer27, it was held that the Family Court
may summon records from Income Tax Department by virtue of section
25
Rakesh Harsukhbhai Parekh v. State of Maharashtra, AIR 2011 Bom 34
26
Manita Khurana v. Indra Khurana AIR 2010 Delhi 69.
27
AIR 1989 Mad 284
10 of the Act. In Satyambha v. Ramachandran28, it was held that while

disposing of applications filed under Chapter IX of the Code of Criminal
Procedure, Family Courts act as a Criminal Court and not as a Civil Court.
The general object of section 10 was explained in Shyni v. George29, wherein it

was held that the intention of the legislature is to promote conciliation
between the wife and the husband and to secure speedy settlement of their
disputes relating to marriage and family affairs and matters concerned
therewith so as to achieve the objects of the Act.
5.5.1 Laying Down Own Procedure
Section 10 (3) says that nothing in sub-section (1) or sub-section (2) shall
prevent a Family Court from laying down its own procedure with a view to
arrive at a settlement in respect of the subject-matter of the suit or
proceedings or at the truth of the facts alleged by one party and denied by
the other.
Family Court is to adhere to simple and practicable procedure. But in

doing so the miscarriage of justice cannot be done and deviations from
established procedure has to be avoided.30 It is in this context that twin
objectives mentioned in section 10(3) need to be analysed. These are;
arriving at a settlement and arriving at truth of the facts in issue31.
Procedural Technicalities not to come in the way for arriving at just

conclusion before Family Court and evidence disallowed by Civil Court
also may be allowed before Family Court. 32 Under section 10 there is no
legal embargo on courts to direct the DNA test depending upon the facts of
the case held in Karthika v. Manohar33.
28
1998 (1) HLR 154
29
AIR 1997 Ker 231
30
Vinod v. Chhaya, I (2003) DMC 580.
31
“Family Court Judge’s Role In Trial and Settlement”, The Lawyers October, 1991 at 17
32
Janaki v. Sundaram, 2002 (2) Marri LJ 359.
33
2009 (7) Marri LJ 31l.
In case of Ajit Kumar Nirmalkar v. Puniya Bai Nirmalkar34, it was held that
section 10 deals with procedure generally. Sub-section (1) provides that
subject to the other provisions of the Act and the rules, the provisions of the
Code of Civil Procedure and of the any other law shall apply to the suits and
proceedings before the Family Court and Family Court shall be deemed to
be Civil Court and shall have the powers of such court. Sub-section (2)
provides that subject to the other provisions of the Act and Rules, the
provisions of Cr. P.c. shall apply to the proceedings before the Family Court.
Hence in such instance it was further held that the application for
maintenance filed by next friend was maintainable.
5.6 In Camera Proceedings
According to section 11 in every suit or proceedings to which this Act

applies, the proceedings may be held in camera if the Family Court so
desires and shall be so held if either party so desires. This is USP of the
Act which creates an amicable ambience which is most suitable for
resolution of disputes in non-adversarial way where parties can emote
and release their anger and frustration which calms them down and
creates confidence of parties and maintains the confidentiality.
Section 11 of the Act deals with proceedings to be held in camera35. In

Sridhar v. Sukanya36, in view of section 22 of the Hindu Marriage Act, 1955
it was held that the proceedings to be in camera and respondents were
restrained from publishing or telecasting the matrimonial proceedings of
the petitioner. In every suit or proceedings to which this Act applies, the
proceedings may be held in camera if the Family Court so desires and shall
be so held if either party so desires. Family Court will not cease to be a
court merely because some restrictions are imposed by sections 11 to 16 of
the Act.
34
AIR 2008 Chh 52
35
See Munnalal v. State of Uttar Pradesh, AIR 1991 All 189. See also section 33 of the
Special Marriage Act, section 43 of the Parsi Marriage Act, section 22 of the Hindu
Marriage Act, section 53 of the Divorce Act.
36
2005 (1) HLR 739
5.7 Role of Medical and Welfare Experts
According to section 12 in every suit or proceedings, it shall be open to a

Family Court to secure the services of a medical expert or such person
(preferably a woman where available), whether related to the parties or
not, including a person professionally engaged in promoting the welfare
of the family as the Court may think fit, for the purposes of assisting the
Family Court in discharging the functions imposed by this Act.
Paras Diwan identifies the role of support or auxiliary service in

family court system in his article37. “Auxiliary service as an essential
adjunct of the family court is part of the concept of family court. No
Family court system can succeed without a well organised support
service. It is a logical concomitant of the family court system. The prime
objective of the support service is to help parties at reconciliation,
conciliation and to lessen adversarial atmosphere…In our submission the
auxiliary service should had the following four component services:
family counselling and reconciliation & conciliation service,
investigative service, legal aid service and enforcement service.”
For the effective functioning of family courts a vast manpower of

trained persons to man the family courts and auxiliary services are needed.
So it is necessary that a training and continuing education programme be
arranged for family court judges, the staff of support services and
lawyers38.
Section 12 of the Act deals with assistance of medical and welfare

experts. In Shyni v. George39 the importance of Social Welfare Agencies
and professional experts in relation to resolution of matrimonial disputes
by conciliation through Family Courts, had been emphasized.
37
Paras Diwan, “The Family Courts” Journal of Indian Law Institute, Vol. 27:1, 1985, 100-
109 at 107
38
Dr. D.C. Manooja, “The Family Courts” AIR Journal 2001 at120
39
AIR 1997 Ker 231
5.8 Legal Representation by Advocates
In adversarial process it is generally seen that advocates makes the whole

dispute resolution more dilatory, complex and costly so in general
section 13 which starts with a non-obstante clause says that,
“Notwithstanding anything contained in any law, no party to a suit or
proceeding before a Family Court shall be entitled, as of right, to be
represented by a legal practitioner:
Provided that if the Family Court considers it necessary in the interest of

justice, it may seek the assistance of a legal expert as amicus curiae.”
Section 13 of the Act deals with Right to legal representation40. The

parties before Family Courts are not permitted the assistance of Lawyers as a
matter of right and hence if there is substantial compliance of Statute they are to
be liberal.41 The above provision in section 13 of the Family Court Act is bound
to be productive of hardship and injustice, if enforced in all its harshness. The
provision appears to be based on the assumption that legal disputes concerning
family affairs are all of a simple character in which lawyers can be of no help.
This is a misconception.42 The words “as of right” in section 13 prima facie tend
to indicate that the parties to a suit or proceeding shall not as a matter of right be
entitled to be represented by a legal practitioner but in appropriate cases the
parties may be permitted by the family court to be represented by the legal
practitioners in any suit or proceeding before that court 43. The reason of
prohibition of lawyers were explained by Mr. Naresh Chandra Dubey 44 in
following words, “The aim to expedite the proceeding is that the parties before
the family court are not litigating for prestigious claim but under the compelling
adverse circumstances of their broken family relation, they are looking for speedy
40
See Romila Jaidev Shroff v. Jaidev Rajnikanth Shroff, 2000 (3) Mah LJ 468.
41
Basanti Sena v. Pratap Chandra Sena, 1997 Marri LJ 389.
42
P.D. Mathew and P.M. Bakshi, Family Courts, Indian Social Institute at 13
43
P.K. Sengupta, “Section 13 of The Family Court of 1984-Does it totally Prohibit Lawyers
from Appearing before Family Court”, AIR 1995 Journal 149.
44
Naresh Chandra Dubey, “Representation of Parties by Legal Practitioners in Family
Courts” AIHC 2006 Journal at 144.
help from the family court. It is also to be considered that if money or funds made
available with assistant of family court for the welfare of aggrieved wife,
children and parents be permitted to go in the pockets of legal professionals, the
purpose of establishing family courts will fail.”
Where the application filed by the wife praying for permission to engage an
advocate was pending, proceeding ex parte against the wife without further
opportunity, not justified which was held in Savita Arun Kadu v. Arun Ranganath
Kadu45.
On the issue of section 13 Advocates agitated protest and strike on

India level and constitutional validity was challenged in courts 46. But when the
constitutional validity of section 13 of the Family Courts Act, 1984 already had
been decided by the Apex Court47, it is not proper to go into the said question
observed-in Vijay Kaur v. Radhe Shyam48. It is the discretion of the Family Court
Judge to permit or not to permit representation by lawyer. Parties before the
Family Court may make a written request or an oral prayer for permission to
engage a counsel. In Bansidhar v. Seema49, it was held that section 13 of the
Act does not impose a complete bar on representation by a legal
practitioner and the Family Court may permit a party to be represented by
a counsel in the interest of Justice. In Kanpur Bar Association v. Union of India,
WP No. 1142/87, the Apex Court while dealing with section 13 of the Act,
negatived the right of a party to be represented by a lawyer and observed
that no party has a right to claim to be represented by a legal practitioner.
In Sadhana Patra v. Subrat Pradhan50, learned Judge of Orissa High

Court held that section 13 of the Family Courts Act, 1984 does not impose
an absolute bar of engaging an advocate
45
1998 (1) HLR 705.
46
Justice P.S. Narayana, Law Relating to Family Courts, (Universal Publishing Co.2013,
New Delhi) at 68.
47
See Kanpur Bar Association v. Union of India writ petition No. 1124/87 decided by the Apex
Court on 4-1-1988.
48
1991 (2) HLR 611.
49
1992 (2) HLR 40.
50
AIR 2006 Ori
5.8.1 Amicus Curiae
A fair reading of section 13 of the Family Courts Act, 1984 indicates that
there is no total prohibition of being represented by a legal practitioner.
The proviso clearly provides that if the Family Court considers it
necessary in the interest of justice, may seek assistance of legal expert as
amicus curiae. As regards litigants who desire to be represented by a lawyer
in the Family Court, they can avail facility as provided by rule 37 of
Family Courts (Court) Rules, 1988.51
West's Legal Thesaurus Dictionary Specifies Amicus Curiae means,

"Friend of the Court. A non-party who advises or makes suggestions to the
Court. An amicus curiae brief is the document containing this advice that is
submitted to an appellant Court".
In Sarala Sharma v. State of Rajasthan52,it was observed that Amicus Curiae

may mean one who gives information to the Court on some matter of law relating
to which the Court is doubtful.
In Durga Prasad v. Union of India53, it was held while main section 13

deals with appointment of legal practitioners by the parties, proviso deals
with the power of the Family Court to appoint a legal practitioner as an
amicus curiae.
In Kishori Lal Govindram Bihari v. Dwarkabai Kishorilal Bihari54, it was

observed by the Division Bench of Bombay High Court:
“Learned counsel representing the parties in this case as also in a series of

appeals from the Family Courts have made a grievance with systematic
regularity that applications for legal assistance, even when made in writing
before the Family Courts, are rejected without giving any satisfactory
reasons. Whereas it is true that the Family Court is not required to pass
51
Lata Pimple v. Union of India, AIR 1993 Bom 255
52
2002 (1) HLR 673
53
AIR 1998 AP 290
54
1992 (2) HLR 521
elaborate orders on such application, having regard to the unfortunate

situations which arise thereafter, wherein specific prejudice is not only
pleaded but is demonstrated, we consider it expedient to law down certain
broad norms which the Family Courts should follow in such situations:-
(a) That it be ascertained from the parties at the initial stage of the
proceeding itself as to whether there exists need for the engagement of an
advocate and, if so, what are the grounds in support thereof.
(b) The Judge shall ascertain from the status of the parties, i.e., the age,
educational qualifications, etc., as to whether they appear to possess the
requisite capacity and qualifications to conduct the proceeding in person.
This shall be all the more necessary in cases where the parties appear to
be uneducated or semi-educated.
(c) The normal place of residence, occupation, economic capacity and the
feasibility of the party attending the Court in person without abnormal
and undue hardship shall also be ascertained and if it appears that the
party would be subjected to considerable difficulty, loss or inconvenience
by having to attend the Court in person, it would be advisable to permit
representation.
(d) The complexities of the case on both sides will have to be gleaned
from the proceedings, for instance, the question as to whether any
specialised medical, psychiatric or other specialised knowledge is called
for, or whether the conduct of the case would require special skill of an
experienced cross-examiner, all of which it would be unreasonable to
expect from a lay litigant.
(e) If it appears that the parties are unevenly matched resulting in an

obvious unfair advantage to one of them, the Court shall ensure that this
handicap be minimized by permitting legal assistance.
(f) In proceedings, such as petitions filed by consent of the parties, or

where it appears that a contest on merits is minimum, undoubtedly, the
presence of an advocate may appear redundant, but the Trial Court shall
apply the aforesaid tests for the purpose of ascertaining that the consent is
free and fair and that no undue advantage is being taken by one of them.
Instances are abundant in matrimonial proceedings where a grievance is
subsequently projected that the implications of an admission or a consent
were not known to the party, or that a party wrongly gave up certain
rights, or that a party was unaware of the finality or otherwise of orders
assed in these proceedings, or, for that matter, was unaware of what
would be legally insisted upon. It is a misnomer, therefore, to assume that
legal representation is entirely unnecessary even in this category of cases.
(g) Matrimonial litigations invariably envisage not only hurt-feelings but

supercharged emotions, both of which provide valid justification for the
view that parties involved in such a tussle would find it difficult to
conduct a proceeding against the adversary and in these situations where
a violent contest is apparent, the presence of counsel could, undoubtedly,
act as a shock-absorber. More importantly, matrimonial proceedings
often-times involve embarrassing details which would make it extremely
difficult for the litigant to hand personally.”
5.9 Family Court & Evidence Act
Indian Evidence Act, 1872 generally does not apply to proceedings

before Family Court however family court may receive evidence both
oral and documentary in accordance to Indian Evidence Act. According
to section 14 a Family Court may receive as evidence any report,
statement, documents, information or matter that may, in its opinion,
assist it to deal effectually with a dispute, whether or not the same
would be otherwise relevant or admissible under the Indian Evidence
Act,
1872 (1 of 1872).
Section 14 of the Act deals with application of the Indian Evidence

Act, 1872.55 Family Court may receive as evidence any report,
statements, document, information or matter. That may, in its opinion
assist it to deal effectually with a dispute whether or not the same would
be otherwise relevant or admissible under the Indian Evidence Act, 1872.
In case of Guru Bachan Kaur v. Preetam Singh56 it was held that the Family
Courts were duty bound to adopt its own procedure in divorce
proceedings. In case of Sagrika Debata v. Satyanarayan Debaia57, it was held
that the consideration of evidence by Family Court was not restricted by
rules of relevancy or admissibility provided under the Evidence Act.
In case of Narayan Ray v. Jamuna Dey58, object of section 14 was explained and it
was held that:
"One of the Objects and Reasons for enacting the Family Courts Act, 1984
was to adopt an approach radically different from that adopted in an
ordinary civil proceeding and to simplify the rules of evidence and
procedure so as to enable the Family Court established under the Act to
deal effectively with a matrimonial dispute. Section 14 of the Act stipulates
that a Family Court may receive as evidence any report, statement,
documents, information or matter that may, in its opinion, assist it to deal
effectually with a dispute, whether or not the same would be otherwise
relevant or admissible under the Indian Evidence Act, 1872. The rigour of
the Indian Evidence Act, therefore, is not to be applied in a proceeding
before the Family Court constituted under 1984 Act. Moreover, section 13
of the said Act provides that no party to a suit or proceeding before a
Family Court shall be entitled as of right to be represented by a legal
practitioner. The Family Court, however, if it considers necessary, in the
interest of justice may seek assistance of a legal expert as amicus curiae. In
Family Courts, the assistance of a person trained in law is generally not
55
R. Dugra Prasad v. Union of India, AIR 1998 AP 290
56
AIR 1998 All 140
57
AIR 2010 Ori 58
58
AIR 2010 Gau 75
available to the parties to the proceedings. The Presiding Judge, therefore,

is required to be more careful in dealing with the proceeding before him
under the provisions of the 1984 Act, more so when almost all to parties
such proceedings are not legally trained."
5.10 Record of Oral Evidence
According to section 15 in suits or proceedings before a Family Court, it

shall not be necessary to record the evidence of witnesses at length, but
the Judge, as the examination of each witness proceeds, shall, record or
cause to be recorded, a memorandum of the substance of what the
witness deposes and such memorandum shall be signed by the witness
and the Judge and shall form part of the record.
Section 15 of the Act deals with record of oral evidence.59 Section 15

of the Act says that in suits or proceedings before a Family Court, it shall
not be necessary to record the evidence of witnesses at length but the judge,
as the examination of each witness proceeds shall record or cause to be
recorded a memorandum of the substance of what the witness deposes and
such memorandum shall be signed by the witness and the judge and shall
form part of the record.
There is no reason not to hold the Family Court as a District Court

within the meaning of section 2(4) of the Code of Civil Procedure having
regard to the contract in which the Court has come to be established and the
purpose for which it would exist. That does not come in conflict with the
status of the High Court as superior and the Apex Court.
While dissenting from Romila Jaidev Shroff v. Jaidev Rajnikant Shroff60,

the Full Bench of Bombay High Court held that when the High Court
exercises its ordinary original Civil Jurisdiction in relation to the matters
59
Romila Jaidev Shroff v. Jaidev Rajnikanth Shroff II (2000) DMC 600
60
AIR 2000 Bom 356
under the Family Courts Act, it would be a District Court as understood

therein.
A peculiar system of recording oral evidence is envisaged in section

15 of the Family Courts Act, 1984 as a measure of minimising time for
delivery of justice held in Sunil Joseph v. Marry Ruth Joseph61.
In case of Saraswati Sarkar v. Lalit Chandra Sarkar62, it was held that the
Family Court in view of the provisions continued in section 15, may
record the substance of what the witness deposes without recording the
evidence at length but that does not mean that the witness is not to be
made available for cross-examination by the other party, who may
however decline to cross-examination such witness. If a witness is not
made available for cross-examination the other party would loose the
chance to challenge the version of such witness. It would in that case also
be difficult for the Court to test the veracity of the deposition of such
witness. The manner of recording of the evidence adduced by a witness as
stipulated in section 15 of the Act cannot in any way take away the right of
the other party to cross-examine such witness. In the Family Court where
the parties are normally not allowed to be represented by legally trained
persons to responsibilities of judge of such court is more has to inform the
parties to the proceeding about their right to put questions to the witness
examined by the other party by way of cross-examination. The
examination of a witness cannot be complete unless that witness is made
available for cross-examination by other party. Cross examination is very
important for finding ou the veracity of parties.
5.11 Formal Evidence on Affidavit
61
2007 (2) RLW 1281.
62
AIR 2010 Gau 142.
According to section 16 (l) the evidence of any person where such

evidence is of a formal character, may be given by affidavit and may,
subject to all just exceptions, be read in evidence in any suit or proceeding
before a Family Court.
s.16 (2) The Family Court may, if it thinks fit, and shall, on the application
of any of the parties to the suit or proceeding summon and examine any
such person as to the facts contained in his affidavit.”
Section 16 of the Act deals with evidence of formal character on

affidavit63. To remove the issues of perjury and delay in civil trials the
family courts Act provide for formal evidences to be adduced only on
affidavits which will attract penal action if parties are resorting to false
evidences under Indian Oath Act, 1969 and I.P.C. 1860.
Section 16(1) of the Act says that the evidence of any person where such
evidence is of a formal charter, may be given by an affidavit and may,
subject to all just exceptions, be read in evidence in any suit or proceeding
before a Family Court.
Sub-section (2) of section 16 of the Act says that the Family Court may, if
it thinks fit, and shall, on the application of any of the parties to the suit or
proceeding summon and examine any such person as to the facts
contained in his affidavit. 64
In Shyni v. George65 it was held that where the Family Court is established,
the jurisdiction of First Class Magistrate under Chapter IX of the Code of
Criminal Procedure is ousted and where no Family Court such
proceedings to be initiated before First Class Magistrate having
jurisdiction.
5.12 Judgment of Family Court
63
Romila Jaidev Shroff v. Jaidev Rajnikant Shroff 2000 (2)HLR 683.
64
Thomas v. Lucy 1994 Civil LJ 753.
65
AIR 1997 Ker 231.
Section 17 deals with the judgment of Family Court. According to it

judgment of a Family Court shall contain a concise statement of the
case, the point for determination, the decision thereon and the reasons
for such decision.
Section 17 of the Act deals with judgment. In Mawamma Ninan v.

Ninan66 it was held that Family Court can entertain a suit for partition of
properties between parties to marriage.
In Anand Gound Bhide v. Rohini Bhide67, it was held that after

establishment of Family Court matters falling within the purview of Family
Court to be transferred to the said court, Civil Court could not have made a
decree.
In Vishwas Narahari Sahstrabudhe v. Varda Vishwas Sahstrabudhe68, it

was observed that section 17 of the Act provides that judgment of Family
Court shall contain a concise statement of case, points for determination,
discussion thereon and reasons for such decision.
Section 17 of the Act clearly enlarges the scope of the term

judgment for the purpose of appeal under the Act. Being so, the term
"judgment" as used in section 19 of the Act has to be understood as
described under section 17 of the Act.
Having so understood, the said term would not be only include the
reasoning for the decisions but even the decision itself. Any decision of
any court which is preceded by the reasoning for arriving at such decision
would amount to a formal declaration of determination of rights of the
parties on final adjudication of the controversy before such court and it
would be a decree. At the same time, such adjudication resulting in final
pronouncement of a decision along with the reasoning for such decision
of the Family Court would be judgment for the purpose of an appeal
66
I (1997) DMC 570 (AP)
67
2001 (1) HLR 600
68
AIR 2006 Born 286
under section 19 of the said Act. Being so, there would be virtually no
difference between the term ‘decree’ and ‘judgment’ for the purpose of
an appeal under section 19 of the Act.'
5.13 Execution of Decree
According to section 18(1) of the Act a decree or an order [other than an

order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of
1974)], passed by a family Court shall have the same force and effect as a
decree or order of a Civil Court and shall be executed in the same manner
as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the
execution of decrees and orders.
(2) An order passed by a Family Court under Chapter IX of the Code of

Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner
prescribed for the execution of such order by that Code.
(3) A decree or order may be executed either by the Family Court which
passed it or by the other Family Court or ordinary civil court to which it is
sent for execution.”
Section 18 of the Act deals with execution of decrees and orders. In

Balaji Singh v. Lakhmamma69, the provisions of sections 10, 18, 19 of the Family
Courts Act, 1984, sections 125 and 482, Cr. P.C. had been dealt with and it
was held that as against an order made by Family Court under section 125,
Cr. P.C., inherent power can be exercised to prevent abuse of process of the
Court or to secure the ends of justice.
While dealing with section 18 of the Family Courts Act, 1984 in

Srinivasa Rao v. Renuka Bai70, it was held that Family Court can execute the
decrees passed by it in the manner provided by the Code of Civil
Procedure.
69
1989 (2) HLR 74.
70
2007 (1) HLR 456
Family Court has power to execute its order and claims by strangers
under Order XXI, rule 58 C.P.C. can be adjudicated by the Family Court,
observed in Narayanan Namboodiri v. Saraswathy Thaliyakkattil Mohanan71,
In case of Narayan Namboodiri v. Saraswathy Thaliakattil Mohanan72, it

was held that the order or decree passed by Family Court could be executed
by Family Court. The powers under Order 21 of C.P.C. as was held, were
available to Family Court for execution of its orders. And the order directing
the payment of maintenance creating charge on property and claim by
stranger over property to exclusion of judgment-debtor could be raised
before Family Court executing order.
5.14 Appeals and Revisions under Family Courts Act, 1984
Section 19 provides for appeal and according to section 19 (l) Save as provided in
sub-section (2) and notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of
1974) or in any other law, an appeal shall lie from every judgment or order, not
being an interlocutory order, of a Family Court to the High Court both on facts
and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with
the consent of the parties or from an order passed under Chapter IX of the Code
of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before
a High Court or any order passed under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974) before the commencement of the Family Courts
(Amendment) Act, 1991].
(3) Every appeal under this section shall be preferred within a period of thirty
days from the date of the judgment or order of a Family Court.
71
AIR 2010 Ker 42
72
Ibid.
(4) The High Court may, of its own motion or otherwise, call for and examine the
record of any proceeding in which the Family Court situate within its jurisdiction
passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of
1974) for the purpose of satisfying itself as to the correctness, legality or
propriety of the order, not being an interlocutory order, and, as to the regularity of
such proceeding.]
(5) Except as aforesaid, no appeal or revision shall lie to any court from any
judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench

consisting of two or more Judges.”
Chapter V deals with Appeals and Revisions. Section 19 of the Act deals with
Appeals. Appeal shall lie to the High Court from the judgments and order not
being interlocutory orders passed by Family Court. Appellate Court shall consist
of minimum two judges. Appeal shall be preferred on substantial question of law
and fact.
5.14.1 Limitation And Format Of Appeal
According to section 19 (3) the limitation period for an appeal is 30 days. Every
appeal shall be made in the form of memorandum and presented to appellate
court accompanied by the copies of decree or order or judgments. The law of
limitation applies as in the regular civil suits the limitation applies and it makes
the whole matrimonial matter very relevant.
5.14.2 Grounds of Appeal
Appeal shall be preferred only on substantial questions of law and facts. In Balaji
Singh v. Lakhmamma73, the provisions of sections 10, 18, 19 of the Family
73
1989 (2) HLR 74
Courts Act, 1984, sections 125 and 482, Cr. P.C had been dealt with and it was
held" that as against an order made by Family Court under section 125, Cr. P.C,
inherent power can be exercised to prevent abuse of process of the Court or to
secure the ends of justice.
Appeals as against orders of the Family Courts, the scope and ambit
thereof had been explained in the undernoted decisions.74 Though Hindu
Marriage Act is of the year 1955, the Family Courts Act has come into force in
the year 1984 and after the establishment of the Family Courts, under section 19
of the Family Courts Act an appeal has been provided against the orders or
judgments passed by a Family Court. This is a special statute and as such prevails
over general law especially in the light of the non-obstante clause as held in
Govindraj v. Padmini75.
In case of C. Govindaraj v. Padmini76it was held that the Family Courts Act is a
special statute and as such prevails over general law especially in the light of non
obstante clause. It is well-settled law that in the event of conflict between a
special law and a general law, the special law must always prevail. In case of
conflict between a special law and a general law, even if both enacted by the
same legislative authority, the special law must displace the general law to the
extent of inconsistency. The operation of maxim generalia specialibus non
derogant has been approved and applied by the Supreme Court in a catena of
decisions.
In case of Rohit Dandekar v. Raj Kavitha77 it was held that the golden rule of
interpretation is that the words of statute must prima facie be given their ordinary
meaning and that natural and ordinary meaning of words should not be departed
74
Subhash Popatlal Shah v. Lata Subhash Shah, AIR 1994 Bom 43; Mangala Prahlad
Awad v. Prahlad Hari Bhau Awad, I (1995) DMC 281; Prakash Arjun Adsule v. Sunanda
Prakash Adsule, I (1994) DMC 128; Geeta Krishna Raj Merchant v. Krishna Raj Merchant,
11 (1993) DMC 515; Ajay Jawaharlal Kakaria v. Sandhya Ajay Kakaria, 11 (1992) DMC
554; Kanchan Sanjay Gujar v. Sanjay Bhikhan Gujar, 11 (2009) DMC 566; Mohini Suyog
Diliwadkar v. Suyog Vasudeo Diliwadkar, 2009 (5) Bom CR 774; Anshi Milan Honwar v.
Mulin Bhaishankar Honawar, 2005 (4) Bom CR 493.
75
2009 (1) HLR 255.
76
AIR 2009 Karn 108
77
AIR 2003 Karn 511
from unless it can be shown that the legal context in which the words are used
requires a different meaning. Keeping this rule in mind, court is of opinion that
an appeal would lie under section 19 of Family Court against each and every
judgment and order unless an impugned order can be regarded as an
"interlocutory order" within the meaning of the term. An interlocutory order is
made by judicial forum or the Court from time-to- time during the pendency of
the main proceedings in the aid of final order or decree to be made after
adjudication of dispute and to maintain status quo. If this object of interim order
is kept in mind it cannot be said that an order entrusting custody of a ward, either
in favour of mother or father, is an order made in aid of the final order.
In case of Neelam Kumari Sinha v. Shree Prashant Kumar 78, it was held
that the order granting maintenance under section 24 of the Hindu Marriage Act,
1955 was an interim order and incidental to comprehensive adjudication. And it
was therefore not appealable under section 19(1) of the Family Courts Act, but
order would be amenable to writ jurisdiction under article 227 of the Constitution
of India.
In case of Ajay Kapoor v. Pramila Kapoor79,it was held that where a

petition was filed by the husband for dissolution of marriage under section 13 of
the Hindu Marriage Act and there was conciliation between the parties and a
decree was passed granting a sum to the wife as permanent alimony, the decision
was binding on the parties. Hence it was further held that the appeal against such
order was not maintainable under section 19(2).
In case of Viswanath P.K. v. Sindhu M.K.80, it was held that, “It is trite
and well-settled that the special must exclude the general. But the question is
which stipulation is general in nature and which stipulation is special. It must be
noted that the amendments have been brought about, as per Marriage Laws
Amendment Act, 2003, that the period of limitation prescribed must be enhanced
not only for appeals under section 28(4) but also under section 39 of the Special
78
AIR 2010 Pat 184.
79
AIR 1992 All 283
80
AIR 2010 Ker 58.
Marriage Act. The obvious purpose, it is evident, was to ensure that a larger point
of limitation is available when appeal is against an appealable order in
matrimonial causes. In that view of the matter also, it must be held that the
Marriage Laws Amendment Act deals with a special rule where section 19 of the
Family Courts Act deals only with a general stipulation. Under section 19 of the
Family Courts Act, appeal can be preferred against any decision of the Family
Court not being an interlocutory order. Under section 28(4) of the Hindu
Marriage Act, the period of limitation is prescribed for orders passed under the
Hindu Marriage Act. In this view of the matter, certainly agree that the stipulation
of section 19(3) are more general in nature inasmuch as they cover not only
orders passed by the Family Court under the Hindu Marriage Act but cover all
appealable orders passed in proceedings before the Family Court. The
stipulations of section 19(3) of the Family Courts Act being general in nature
under section 28(4) of the Hindu Marriage Act as amended being special in
nature, the stipulations of section 28(4) must be reckoned as special and those of
section 19(3) to be general.”
In case of Rahul Samrat Tondon v. Neeru Tandon81, it was held that the
order passed by Subordinate Court under section 24 of the Hindu Marriage Act
fixing maintenance pendente lite in the divorce proceedings was an order having
the quality of finality. It might have nothing to do with the ultimate order, which
may be passed by the Court in a matter relating to section 13 of the Hindu
Marriage Act. In fact it was a separate proceeding within a proceeding. Hence the
order as was further held, passed under section 24 of the Hindu Marriage Act
could not simply be called an order of an interlocutory nature, as it was a
judgment. Therefore an appeal under section 19(1) of the Family Courts Act,
1984 was maintainable against an order passed under section 24 of the Hindu
Marriage Act, 1955.
In case of Ashutosh Kumar v. Anjali Srivastava82, it was held that the

limitation provided under the Family Courts Act would prevail over the one
81
AIR 2010 Uttra 67
82
AIR 2009 All 100.
which has been provided under the Hindu Marriage Act for the simple reason that
the Family Courts Act is the form of super legislation vis-a-vis the Hindu
Marriage Act. Insofar as the procedure for settling family disputes is concerned.
Section 20 of the Family Courts Act in this regard specifically provided that in
event of inconsistency between provisions of that Act or any other law for time
being in force, the provisions of the Family Courts Act shall prevail.
It was further held that, accordingly, where the Family Courts have been
established and a judgment and order is passed by it, the appeal against such
judgment and order would be one under section 19 of the Family Courts Act and
the provisions of section 28 of the Hindu Marriage Act insofar as it provides for
filing an appeal pales into insignificance and stand superseded by section 19 of
the Family Courts Act. It was further held that, therefore, the plea the limitation
for filing the appeal should be treated as 90 days could not be accepted and
period of limitation of 30 days so specifically provided under super specialty
statute could not be extended by court.
5.14.3 Non-Appealable Orders
Appeal shall not preferred on interlocutory orders. In case of Madhu Mishra v.

Additional Judge, Family Court83, it was held that order of interim maintenance
passed by Family Court under section 24 of the Hindu Marriage Act was an
interlocutory order and such order was not appealable either under section 28 of
the Hindu Marriage Act or under section 19 of the Family Courts Act.
In case of Ravi Saran Prasad v. Rashmi Singh84, it was held that a conjoint
reading of section 19(5)(1) made crystal clear that only one appeal lies to the
High Court, that no appeal or revision lies except as provided under sub-section
(1) from any judgment, order or decree of a Family Court, and further that no
appeal lies against such judgment or order which is interlocutory. It was further
held that it could not be said that the legislature had created an appellate form in
83
AIR 2006 All 182.
84
AIR 2001 All 227.
1984 against the orders passed under section 24 of the Hindu Marriage Act
nullifying section 28 of that Act contrary to the object of enactment of the Act.
In case of Neeru Saxena v. Sanjiv Kumar Saxena85 it was held that the
question whether the fraud was practiced by husband on court in filing
applications in name of his wife was question of fact and could be gone into by
Family Court itself after appreciation of evidence from both sides and not by
appellate court.
In case of Rajkishore Mishra v. Meena Mishra 86, it was held that under
section 19 one of the conditions for father-in-law to maintain the daughter-in-law
is that the daughter-in-law is not able to maintain herself from the estate of her
parents. A clear finding is necessary whether her parents have estate sufficient to
maintain her and on what circumstance, she is unable to maintain herself or by
her parents. For this purpose parents of plaintiff are required to be heard. This is
possible if they are made parties to the suit. In their absence any finding will not
bind them. Where, from the estate of the parents, the daughter-in-law can
maintain herself, question of obligation of father-in-law does not arise. An order
issuing direction to father-in-law to pay maintenance to the daughter-in-law
without considering these aspects is without jurisdiction.
In case of Asis Ubaldo Rodrigues v. Maria Asis Rodrigues87, it was

observed by the Court that the procedure contemplated in the Indian Divorce Act
stood over-ridden on coming into force of the Family Courts Act in the State of
Maharashtra. The procedure of decree nisi and confirmation by the High Court is
provided in Indian Divorce Act, 1869 has to give way to the procedure provided
in the Family Courts Act. The decree for dissolution of marriage passed by the
Family Courts Act. The decree for dissolution of marriage passed by Family
Court needs no confirmation since the provision of the Family Courts Act shall
prevail over the Indian Divorce Act, 1869 so far as procedural aspect are
concerned.
85
AIR 2000 All 277.
86
AIR 1995 All 70.
87
AIR 2009 Bom 131.
The judgment of Family Court is subject to the appellate jurisdiction of

the High Court under section 19 of the Family Courts Act and is not subject to
confirmation as provided in section 17 of the Indian Divorce Act, 1869 as it stood
prior to the amendment in 2001.
The claim made by the wife under the Hindu Marriage Act regarding her
gold and silver ornaments. The matter remanded back to Family Court by
Supreme Court. The wife sought to raise new claim regarding flat sold by
husband to third party. The remand court rejected amendment of claim as well as
wife's claim to ornaments. It was held that the wife trying to agitate her claim
with respect to the flat in appeal could not be allowed to do so. The wife was
advised the separate proceedings for the claim.88
In case of R. Varadaraj v. V. Nirmala89, it was held that in so far as the

order of Family Court, an appeal lies as against an order which is a final order or
judgment and not being an interlocutory order. The revision does not lie in
respect of orders in the nature of interlocutory orders in a pending proceeding
before the Family Court and revision petitions can be entertained as per section
19(4) only in case of an order passed by the Family Court. In respect of any other
type of order, no revision petition lies. The provisions of section 19(1) have been
given overriding effect over the provisions of the C.P.C
In case of Ajaya Kumar Samal v. Jyotnamayee Samal90, the onus is on

husband to prove charges of impotency of wife. As he failed to discharge such
initial burden, he could shift his onus on wife and say that she was required to
disprove allegations made by him. Hence the refusal to grant decree of divorce
was not illegal.
In case of Kusum v. Kailash Choudhary91, the consent order in divorce

petition allowed father to meet his children. The father was restrained from taking
outside. Subsequently father sought extension of period of meeting and also
88
S.B. Kadam v. B.R. Kadam, AIR 2005 Bom262.
89
AIR 2002 Kart 241
90
AIR 2005 Ori 145
91
AIR 1993 Raj 220: 1994 Marri LJ 89
permission to take them outside. It was held that the order of it was not
interlocutory order barring appeal. The territorial jurisdiction is not only Court
where marriage was solemnised, has jurisdiction to try petition filed under the
Act but also court where respondent resided or where parties last resided. It is
sweet-wild of petitioner to file petition under the Hindu Marriage Act.92
5.14.4 Power of Appellate Court
The appellate court has following powers:
i. It may either admit the appeal or summarily reject it.

ii. If it admits the appeal it may reverse, vary or confirm the order appealed
against.
iii. It may direct such further investigation to be made or such additional
evidence to be taken as it may think necessary or it may itself take such
additional evidence.
iv. It may remand the case for disposal with such directions as it thinks fit.
v. When the appeal is admitted it may suspend the result of the appeal, direct
the execution of the order of the court to be stayed.
5.14.5 Revision
According to section 19(4) The High Court may call for record of any case
decided or proceeding held by Family Court subordinate to him in which no
appeal lies or where an appeal lies but has not been preferred for the purpose of
satisfying himself as to the legality or propriety of the order not being an
interlocutory order passed or proceeding held and if such subordinate revenue
court appears to have:
i. Exercised a jurisdiction not vested in it by law;

ii. Failed to exercise a jurisdiction so vested or
iii. Acted in exercise of jurisdiction illegally or with material irregularity.
92
Chatur Singh Negi v. Rajni Devi AIR 2011 Utt 11.
The philosophy of alternate dispute resolution systems is well made out

by Abraham Lincoln's famous words: "discourage litigation, persuade your
neighbours to compromise whenever you can. Point out to them how the normal
winner is often a loser in fees, expense, cost and time." These words spell out
grim reality and truth.
Litigation in respect of any matter concerning the family, whether divorce,

maintenance and alimony or custody, trial of juvenile offenders or any other
matrimonial cause should not be viewed in terms of failure or success of legal
action but as a social therapeutic problem. It should not be viewed as a
prestigious dispute in which parties and their counsels are engaged in winning or
defeating, but as a societal problem needing resolution. The amicable settlement
of family conflict requires special procedures designed to help people in conflict
and in trouble, to reconcile their differences, and where necessary to obtain
professional assistance. Family disputes need to be seen with a humanitarian
approach and hence attempts should be made to reconcile the differences so as to
not disrupt the family structure. Adjudication of family disputes is an entirely
different matter than conventional civil or criminal proceedings. It is a different
culture and has a different jurisprudence altogether." The whole society feels the
reverberations of a family dispute in society outside the home. Whereas there
already exist some provisions for conduct of arbitration, conciliation and Lok
Adalat in different statutes, the need for a framework to regulate the ADR
process as a whole and mediation in particular has been sought to be fulfilled by
the Supreme Court of India. It has done so by providing the final version of the
Model Rules of ADR and the Model Rules of Mediation, both framed by the
Law Commission of India, in its Orders passed in the case of Salem Bar
Association v Union of India93 with a direction that all high courts should adopt
these with such modifications as they may consider necessary. The Supreme
Court has also made an observation regarding the disturbing phenomena of the
large number of court case filings pertaining to divorce or judicial separation.
93
(2003) 1 SCC 49
Very recently, in 2009, in Gaurav Nagpal v Sumedha Nagpal94, the Supreme

Court observed: It is a very disturbing phenomenon that large numbers of cases
are flooding the courts relating to divorce or judicial separation. An apprehension
is gaining ground that the provisions relating to divorce in the Hindu Marriage
Act, 1955 (in short the 'Marriage Act') have led to such a situation.
94
AIR 2009 SC 557

Procedural Aspects of Family Courts in India: 5.1 Overview

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Procedural Aspects of Family Courts in India: 5.1 Overview

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CHAPTER V

PROCEDURAL ASPECTS OF FAMILY COURTS IN INDIA

5.2 Procedure in Family Court: General Overview

5.3 Dispute Resolution via Settlement

Section 9 is not mandatory in nature and family court is in general

In Romila Jaidev Shroff v. Jaidev Rajnikanth Shroff6, the nature of section 9

Family Court is a court which decides the disputes in exercise of the

In case of Smruii Paharia v. Sanjay Pahariya8, it was held that, “It is

5.4 ADR & Family Court

Discussing about the nature of family court Supreme Court recently

Dr. D. K. Singla10 highlights the reason why ADR system must be

Dr. Rajini Ram11 emphasise the use of ADR in family disputes in

Justice Dilip Raosaheb Deshmukh highlightes the issue of ADR in

encouraged to actually utilize them for out-of-court settlements. Thus, there is a

Deciding on the importance of making an attempt at reconciliation at the first

husband for his non-appearance at the time of reconciliation proceedings. The

From a reading of the above judgments, it is clear that though

5.5 General Procedure

Section 10 of the Act deals with procedure generally. The words

10 of the Act. In Satyambha v. Ramachandran28, it was held that while

The general object of section 10 was explained in Shyni v. George29, wherein it

5.5.1 Laying Down Own Procedure

Family Court is to adhere to simple and practicable procedure. But in

Procedural Technicalities not to come in the way for arriving at just

5.6 In Camera Proceedings

According to section 11 in every suit or proceedings to which this Act

Section 11 of the Act deals with proceedings to be held in camera35. In

5.7 Role of Medical and Welfare Experts

According to section 12 in every suit or proceedings, it shall be open to a

Paras Diwan identifies the role of support or auxiliary service in

For the effective functioning of family courts a vast manpower of

Section 12 of the Act deals with assistance of medical and welfare

5.8 Legal Representation by Advocates

In adversarial process it is generally seen that advocates makes the whole

Provided that if the Family Court considers it necessary in the interest of

Section 13 of the Act deals with Right to legal representation40. The

On the issue of section 13 Advocates agitated protest and strike on

In Sadhana Patra v. Subrat Pradhan50, learned Judge of Orissa High

5.8.1 Amicus Curiae

West's Legal Thesaurus Dictionary Specifies Amicus Curiae means,

In Sarala Sharma v. State of Rajasthan52,it was observed that Amicus Curiae

In Durga Prasad v. Union of India53, it was held while main section 13

In Kishori Lal Govindram Bihari v. Dwarkabai Kishorilal Bihari54, it was

“Learned counsel representing the parties in this case as also in a series of

elaborate orders on such application, having regard to the unfortunate

(e) If it appears that the parties are unevenly matched resulting in an

(f) In proceedings, such as petitions filed by consent of the parties, or

(g) Matrimonial litigations invariably envisage not only hurt-feelings but

5.9 Family Court & Evidence Act

Indian Evidence Act, 1872 generally does not apply to proceedings

Section 14 of the Act deals with application of the Indian Evidence

available to the parties to the proceedings. The Presiding Judge, therefore,

5.10 Record of Oral Evidence

According to section 15 in suits or proceedings before a Family Court, it

Section 15 of the Act deals with record of oral evidence.59 Section 15

There is no reason not to hold the Family Court as a District Court

While dissenting from Romila Jaidev Shroff v. Jaidev Rajnikant Shroff60,

under the Family Courts Act, it would be a District Court as understood

A peculiar system of recording oral evidence is envisaged in section

5.11 Formal Evidence on Affidavit

According to section 16 (l) the evidence of any person where such

Section 16 of the Act deals with evidence of formal character on

5.12 Judgment of Family Court