Justices on a Division Bench A While it may be important to follow the principles of adversarial litigation when dealing with family disputes, Muhammed Mustaque and Sophy Thomas argue that this does not preclude the judge from using an inquisitorial paradigm to determine the truth.
“It’s also worth remembering that conflicts brought before the Family Court may necessitate adhering to hostile litigation procedures. However, like in an inquisitorial approach, this does not preclude the family court Judge from conducting inquiries into the truth. The Family Court does not require the parties’ consent to discover the truth. If any of the alternatives reflects justice, such approach is clothed with legal protection “In its decision, the Court stated.
According to the Court, a combined reading of Sections 9, 10 and 14 of the Family Courts Act, 1984 shows that the “family Court is not a mirror of an ordinary civil court.”
According to Section 10(3), the family court has the authority to establish its own method in order to reach a settlement or to investigate the truth of the facts asserted.
The Court noted, “The power to pick the form of procedure sufficiently suggests that the family court is not bound by any strictness of legal procedure as referred to in the Code of Civil Procedure, the Indian Evidence Act, the Criminal Procedure Code, etc.”
The Court stated that in a family court conflict, it is critical to design a framework for a fair completion of the proceedings.
“If the family court is able to follow the “fairness” standard, the family court’s decision or order cannot be challenged in a higher court. The family court is allowed entire autonomy in establishing a fair system for resolving conflicts before it “According to the High Court.
In particular, the Court noted that it appeared that Kerala’s family courts were not making use of the provisions of the Family Courts Act, which call for the establishment of social welfare institutions or organisations to help the parties.
Furthermore, Rule 56 of the Family Court (Kerala) Rules, 1989, as well as Rules 4 and 7 of the Family Court (Kerala) Additional Rules, 1990, contemplate the use of experts or professionals in the institutional forum.
“All of these statutory provisions plainly imply that, in addition to resolving disputes in the way specified, the Family Court must conduct an investigation to preserve the family’s welfare. Many disagreements can be addressed in ways other than adopting measures to enhance the parties’ well-being; for example, by aiding parties in reaching a mutually acceptable settlement “According to the ruling.
The Court stated that the intervention of qualified specialists will go a long way in settling matrimonial problems arising from undiagnosed psychological and physical concerns in some cases.
“The parties may not be able to recognise their concerns without the advice of a medical specialist. If the court decides to aid the parties in rectifying or curing their problems with medical specialists, the parties may choose to resolve their conflicts themselves. We haven’t located any Family Courts in the state that are taking such steps “The Court took notice of this.
As a result, the Court ordered the Registrar (District Judiciary) to produce a report on the existence of such aid in the family court, as required by the Family Courts Act’s Sections 5 and 12 as well as the Rules.
The ruling came in response to a petition contesting a family court’s decision to open an investigation into suspected collaboration between the husband and wife in a claim for restitution of patrimony and recovery of family ornaments.
The Court stated that the family court’s job is to discover the truth in areas such as custody, support, and married status as long as the family court takes a fair approach.
“The whole aim of delegating family disputes to the Family Court rather than the ordinary Civil Court is to focus not on the rights and obligations of the disputants but on the interests of the parties and the welfare of the subject of the dispute,” the decision read.
The Court saw no reason to intervene in this instance since it believed the family court was right in issuing an order to find out the truth through public officials.
In a preamble to the Court’s decision, it bemoaned the fact that, based on its experience, family courts appear to have been functioning in the manner of a regular civil court over the years.
“The knowledge of the powers and nature of functions of the Family Court has been stereotyped by trained brains in adversarial litigation, including attorneys and judges. The Family Courts are unable to comprehend the basic purpose of their role, as well as the kind of power that they can wield “According to the ruling.
Case: Abdul Latheef vs. Nisha Haneefa.
