Family Court does not require consent of parties to conduct enquiry to find out truth: Kerala High Court

The Kerala High Court recently held that as long as a fair procedure is adopted, family courts do not require the consent of parties to order enquiries to ascertain the truth while adjudicating on family disputes. [Nisha Haneefa v Abdul Latheef].A Division Bench of Justice A Muhammed Mustaque and Sophy Thomas stated that while it might sometimes become necessary to follow the rules of adversarial litigation while dealing with family disputes, the same does not restrain the judge from adopting an inquisitorial model to ascertain the truth."It is also to be remembered that the disputes amenable before the Family Court sometimes may require to follow the rules of adversarial litigation. But that does not mean that the family court Judge is restrained from conducting enquiry related to the truth as, in an inquisitorial model. To find out the truth, the Family Court does not require the consent of the parties. If fairness is reflected in any of the approaches, such an approach is clothed with legal protection," the Court said in its judgement. .The Court stated that from a combined reading of Sections 9, 10 and 14 of the Family Courts Act, 1984, it was clear that the "family Court is not the mirror of an ordinary civil court". The Court noted that as per Section 10(3), the family court is given the power to lay down its own procedure with a view to arrive at settlement, or to enquire into the truth of the facts alleged. "The power to choose the mode of procedure itself sufficiently indicates that the family court is not bound by any strictness of procedure of law as referred in the Code of Civil Procedure, the Indian Evidence Act, Criminal Procedure Code etc," the Court stated.The Court opined that what is essential in a dispute before the family court is that it must devise procedure for fair conclusion of the proceedings. "If the family court is able to adhere to the “fairness”, the decision or order of the family court cannot be questioned in a higher Court. The family court is given complete freedom in devising fair procedure for speedy resolution of disputes before the said court," the High Court said. .Pertinently, the Court observed that it seemed like family courts in Kerala were not utilising the provisions of the Family Courts Act which envisages the establishment of institutions or organisations engaged in social welfare to assist the parties.Moreover, Rule 56 of the Family Court (Kerala) Rules, 1989 and Rules 4 and 7 of the Family Courts (Kerala) Additional Rules, 1990 also contemplate the institutional forum of assistance through experts or professionals. "All these statutory provisions clearly would indicate that apart from the resolution of disputes in the manner indicated therein, the Family Court needs to embark upon enquiry to protect the welfare of the family. Many of the disputes can be resolved other than by taking measures to promote the welfare of the parties; by assisting parties to arrive at a mutually agreed settlement," the judgement stated. The Court opined that in several matrimonial disputes, the assistance of qualified doctors would go a long way in resolving disputes which arise from unidentified psychological and physical issues. "In the absence of medical expert's assistance, the parties may not be in a position to identify their problems. If the court resolves to render assistance to rectify or cure such problems of the parties with medical experts, the parties themselves may choose to resolve the disputes. We have hardly found any such steps being taken by the Family Courts in the State," the Court noted.Therefore, the Court directed the Registrar (District Judiciary) to file a report as to the existence of such assistance in the family court as mandated under the statutory provisions in Sections 5 and 12 of the Family Courts Act and also under the Rules. .The judgement was passed on a petition challenging the decision of a family court to initiate enquiry into a possible collusion between the husband and wife in a claim for realisiation of patrimony and recovery of family ornaments. .The Court opined that as long as the family court adopts a fair approach, its responsibility is to find out the truth in matters like custody, maintenance, matrimonial status etc. "The very purpose of entrusting family disputes to the Family Court from ordinary Civil Court is to focus not on the rights and obligations of the disputants but on the interest of the parties and welfare of the subject of the dispute", the judgement stated..In the instant case, the Court found no reason to interfere as it opined that the family court was justified in passing an order to find out the truth through public officials..In a prelude to the judgement rendered by the Court, it lamented that from its experience, it seems that over the years, family courts have been functioning in the manner of an ordinary civil court."Trained minds in adversarial litigation, from amongst both lawyers and Judges, have stereotyped the understanding of the powers and nature of functions of the Family Court. The Family Courts are not able to realise the very objective of its function and the nature of power that can be exercised by them," the judgment said..[Read Judgment]