Family Court does not have plenary powers to do away with mandatory procedural requirements

Family Court does not have plenary powers to do away with mandatory procedural requirements

Aman Lohia Vs Kiran Lohia

Supreme Court

17/03/2021

TRANSFERRED CASE (CIVIL) NO. 25 OF 2021

About/from the judgment:

A Family Court is expected to give notice to parties and provide them sufficient time and opportunity to present their claim in the form of pleadings and evidence before determination of the dispute, the Court said.

The Supreme Court ruled that a family court does not have plenary powers to do away with the mandatory procedural requirements which guarantee fairness and transparency for adjudication of claims.

A family court is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statute, the Court held.

"Family Court is expected to follow procedure known to law, which means insist for a formal pleading to be filed by both sides, then frame issues for determination, record evidence of the parties to prove the facts asserted by the concerned party and only thereafter, to enter upon determination and render decision thereon by recording reasons for such decision," the judgment said.

For doing this, the Family Court is expected to give notice to the respective parties and provide them sufficient time and opportunity to present their claim in the form of pleadings and evidence before determination of the dispute, the Court added.

The judgment was delivered in an appeal by a father (appellant) challenging a September 2019 order of a family court granting custody of the child to his wife after concluding that the father had "abandoned the petition".

A guardianship petition was filed by the father under Section 7 of the Guardians and Wards Act, 18905 read with Section 7(g) of the Family Courts Act, 1984 on the assertion that the minor child was in his custody at the relevant time. The appellant sought himself to be declared guardian of the child.

The respondent wife also filed an application under Section 151 of the CPC for declaring her to be the sole and absolute guardian of the minor child.

This application was filed on September 13, 2019 and notice was was issued to the appellant that day and the matter was posted for hearing on September 16, 2019 at 2 pm. Since the appellant did not enter appearance that day, the matter was posted for September 19, 2019.

In the meantime, the respondent filed another application under Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of the CPC to transpose her as the petitioner in the guardianship petition.

Eventually, the matter was heard on September 21, 2019. No notice of the transposition application was ever served on the appellant nor was he given notice regarding hearing of the said application before the Court, despite the fact that his counsel had been discharged from the case and the appellant was not represented by any other counsel.

The family court ruled that the appellant had abandoned the petition and transposed the wife as the petitioner in the main guardianship petition.

The main guardianship petition was also decided the same day against the appellant by holding that giving guardianship of the minor child, who was only two and half years of age, to the appellant, was not advisable.

It ruled that the father had dis-entitled himself to be declared as guardian of the minor child and that in "paramount interest and welfare of the child, the respondent mother needs to be declared as the sole, exclusive and absolute guardian and custodian of the minor child."

The Supreme Court took exception to the procedure adopted by the family court in deciding the transposition application and guardianship petition.

"The (family) court could not have entertained the transposition application filed by the respondent ex parte and that too without ensuring that it was duly served on the appellant consequent to notice issued thereon by the Court," the Supreme Court said.

On the family court's finding that the appellant had abandoned proceedings, the top court said that here can be no legal presumption about the factum of abandonment of proceedings.

"The abandonment has to be express or even if it is to be implied, the circumstances must be so strong and convincing that drawing such inference is inevitable," the apex court stated.

The family court is deemed to be a civil court having all powers of such court, the Supreme Court said. Consequently, it has to bear in mind principles enunciated in various statutes including Indian Evidence Act, the Court affirmed.

"Family court does not have plenary powers to do away with the mandatory procedural requirements in particular, which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides," the judgment said.

In the instant case, the Bench noted that the family court was "in a tearing hurry, may be because of the insistence of the respondent and her counsel to do so."

"The nature of inquiry before the Family Court is, indeed, adjudicatory. It is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statue in that regard and also the foundational principle of fairness of procedure and natural justice," ruled Supreme Court," the Supreme Court further observed.

In the present case, there was substantial non­-compliance with the prescribed mandatory procedure and infraction of principles of natural justice and it was not a technical irregularity to be overlooked, the apex court concluded.

The top court, therefore, set aside the family court order, ordered revival of the guardianship petition and remanded it back to the family court for fresh adjudication.

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