Objectives of Family Courts
Family Courts have been established under the Family Court Act, 1984. The objective of the family court is to promote conciliation in and secure speedy settlement of disputes relating to marriage and family affairs, in a mediatory or conciliatory manner.
Every Family Court is bound to make an attempt to amicably settle the disputes for reunion rather than separation. Divorce or separation is to be allowed by the family courts only when there is total failure or irreparable breakdown of marriage.
Family courts are overburdened with backlog
Some of the Family Courts are compelled to handle more than 200 cases a day in an attempt to clear the arrears. The delay in disposal of the cases has resulted in large number of interlocutory applications being filed on day-to-day basis.
The High Court of Kerala (HC) apprehends that the backlog is leading to a collapse of justice delivery system and a large number of original petitions being filed before the HC seeking for the speedy disposal of the proceedings.
Family Court can lay down procedures
The Family Court, as per Section 10 of the Family Court Act, can lay down its own procedure in arriving at a speedy settlement of family disputes or finding out the truth of any disputed fact before it. The settlement of disputes in Family court need not be strictly in accordance with legal grounds but based on mutual understanding.
Evidence law and procedural technicalities need not be strictly observed in family courts. The Family Courts should use informal proceedings and non-rigid rules of procedures.
Kerala HC’s direction to family courts
In order to reduce the inordinate delay in disposal of cases by the Family Courts in the Kerala State, the HC, in exercise of its supervisory jurisdiction, issued the following general directions, in Shiju Joy v Nisha and a batch of petitions, decided on 23rd March 2021.
In fact, the High Court has powers to frame rules for the functioning of the Family Courts in regard to the procedures to be followed by them.
CMO should send the parties to the Counsellor
All family courts must notify an officer as Chief Ministerial Officer (CMO). CMO has a host of duties.
The CMO shall fix the date for appearance of the respondents. Then the CMO will refer the parties of the petitions for counselling in consultation with the presiding officer. The date and time for appearance of the respondents shall be specified in the summons issue to them. The CMO shall fix specified timings for counselling between the parties to a Counsellor.
Counselling should be scheduled in such a way that a counsellor should not have more than 10 cases in a day. Then the Counsellor shall submit the report on daily basis to the CMO.
Connected cases need to be tagged
The CMO of shall ask the parties to file details of the other connected cases pending before the court and the CMO shall tag the cases so as to have joint trial.
Uncontested cases to be reported to court
The CMO shall post uncontested cases and cases where respondents remain absent immediately before the court. Similarly,
CMO shall file petitions for mutual consent divorce which fulfillsthe conditions prescribed under the law, also before the court.
Which cases need to be referred to counselling
Only suits or proceedings for decree of nullity, dissolution of marriage, judicial separation, restitution of conjugal rights, maintenance, guardianship, custody and access to minors, need to be referred for counselling, unless the presiding officer directs otherwise.
CMO can directly refer some cases to mediation
If the disputes are not settled even after parties are referred to Counselling, the CMO of shall fix a date for offering the parties to mediation, after fixing and outer time of 60 days, in consultation with the judge. In essential cases, further time can also be allowed for counselling, as per rules.
In suits or proceedings for declaration as to validity of marriage, property, injunction, legitimacy of a person etc the CMO shall refer the parties directly to mediation, without asking them to undergo counselling.
When mediation fails the case will be referred for hearing
If the mediation proceeding is unsuccessful the CMO shall call a meeting of parties and fix the date of hearing in the court.
Parties can be referred to experts
While counselling, if the Counsellor is of the view that an expert assistance is required for solving the case, the parties shall be referred to a competent expert from the panel prepared by the presiding officer of the court.
Judge shall not waste time on Roll Calls
The judge should not waste time on roll calls. The CMO should deal with such routine matters.
The family court shall bestow their attention to
- execution proceedings
- interlocutory applications of urgent nature
- cases listed for trial and hearing in the special list
Judge shall try the case for settlement when listing
On the day of listing the case, the judge shall make an endeavour to persuade the parties to arrive at a settlement in the chamber or in the court during the trial.
The court shall list 2 – 4 cases for trial and 2 – 4 cases for arguments in a day. The CMO shall fix the date for trial of pending cases ripe for trial well in advance.
Execution petitions to be disposed of within time limit
The family court shall make every endeavour to dispose of execution petitions within the time specified in law.
Execution petition under 125 CrPC need not be called in the court.
Maintenance to be paid through bank account
For payment of maintenance the decree holders have to give their bank account details to CMO. The parties need only file memos evidencing and acknowledging the payments.
If this practice is adopted by the parties the execution petitions need not be called in court, except when the party commits default or they raise any dispute.
Nodal officers to be appointed to serve warrants
The presiding officer shall appoint nodal offices in the revenue department and police department so as to monitor the execution of arrest warrants and distress warrants.
In interim child custody, the judge shall interact with parties and the child, so as to find out the best interest of the child, and to act accordingly.
The interim orders issued by the family court should not have the effect of the final order but it is permissible in order to restrain the property from being damage or alienated when the dispute is pending.
Interlocutory application maybe disposed of within 4 weeks after appearance of the parties.
Commission can be appointed for witness examination
If both parties agree, the family court may appoint Advocate Commissioner to record the oral evidence of parties and their witnesses.
Judge need to record substance of witness deposition
When presiding officer record the evidence only the memorandum of substance of what the witnesses depose before him need to be recorded to save time.
Persons can produce evidence through affidavit
The evidence of persons can be recorded through affidavit also. The court may allow video conferencing whenever requested for.
Court to conduct joint trial
When the case is ripe for trial, the family court shall order consolidation and joint trial of all the connected cases pending between the parties.
The court shall refer all pending cases to mediation. Lok Adalat may also be convened.
Advance hearing can be allowed for valid reasons
Advanced hearing can be allowed on valid reasons. The court has to pass orders on such issues within the next 2 weeks.
If the case has any direct impact on a senior citizen, it shall be disposed of within six months.
Reference
- Shiju Joy v Nisha : OP (FC) No 352 of 2020
- Family Court Act, 1984
