Shiju Joy.A vs Nisha
2021 Latest Caselaw 9603 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                 &

                 THE HONOURABLE MR.JUSTICE C.S.DIAS

    TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                       OP (FC).NO.352 OF 2020

      PROCEEDINGS IN D.O.P.1316/2016,O.P.(GW)1576/2016 AND
       M.C.433/2017 IN THE FILE OF FAMILY COURT, ERNAKULAM


PETITIONER:

              SHIJU JOY.A.,
              AGED 42 YEARS
              S/O.       A.V.      JOY,         ARAKKAL        HOUSE,
              OCHANTHURUTH P.O, VYPIN.

              BY ADVS.
              SRI.A.X.VARGHESE
              SRI.A.V.JOJO

RESPONDENT:

              NISHA,
              AGED 36 YEARS
              D/O.   KUMARAN,    KALLUNKAL      HOUSE,    KANJANGADU,
              KASARAGOD DISTRICT - 671315.

              R1 BY ADV. SRI.V.C.RAJESH
              R1 BY ADV. SRI.K.J.GLADIS

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
22.02.2021, ALONG WITH OP (FC).420/2020 AND CONNECTED CASES, THE
COURT ON 23.03.2021 DELIVERED THE FOLLOWING:
                                                                 'C.R'
               A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.

                  ---------------------------
  O.P (FC) Nos.352, 420, 433, 436, 441, 447, 456, 493,
 517, 526 of 2020 & 35, 37 38, 43, 45, 47, 51, 52, 58,
  60, 64, 65, 66, 68, 69, 73, 74, 76, 78 & 89 of 2021

                 -----------------------------
           Dated this the 23rd day of March, 2021

                           J U D G M E N T

A.Muhamed Mustaque & C.S.Dias, JJ.

We are, in this batch of original petitions,

asked to resolve the difficulties caused to the

litigants due to the inordinate delay in disposal of

cases by the Family Courts in the State. These original

petitions speak about the various hurdles faced by the

parties in resolving their matrimonial disputes. The

petitioners who are parties to different proceedings,

have invoked the supervisory jurisdiction of this Court

under Article 227 of the Constitution and sought for

directions to the Family Courts to expeditiously

dispose of pending proceedings. It was a routine

practice in this Court to call for reports from the

Family Courts and issue directions to dispose of OP (FC).NO.352 OF 2020 and connected cases

proceedings in a time bound manner. This has caused

perceived injustice to many, as those who approach this

Court stand in advantageous position in getting their

cases disposed of on a priority basis. The delay

involved in disposal of cases before the Family Courts

cannot be signified for a singular reason. The problems

faced are multifaceted and are of different dimensions.

Lack of infrastructure, docket explosion, untrained

officers and staff, inept case management etc., are a

few to list.

2. The Family Courts are conceived to deal with

conflicts relating to marriage and family affairs with

humane consideration. The procedure ordained under the

enactment is to help the parties to resolve their

disputes in a harmonious way in preference to

adversarial litigation. Parties are not entitled, as of

right, to be represented by a legal practitioner before

the Family Courts. The lawyers, who are trained in

adversarial litigation, do not want to shed their role

as adversarial counsel in matrimonial disputes. The

rules and procedures formulated for Family Courts are OP (FC).NO.352 OF 2020 and connected cases

often forgotten in the process. The objects and reasons

in establishing Family Courts, to deal with matrimonial

disputes, with informal setting are to break the

shackles of rigid rules and procedures followed in

civil courts. Many of the Judges as well as lawyers are

not really equipped to handle family disputes befitting

to the standards required under law, which adds to the

cause for the delay.

3. The parties who approach the Family Courts

with their grievances, with a hope to get speedy

justice, very soon realise that their problems burgeon,

cases multiply, and their ordeal unabatedly continues

due to the adversarial nature and circumstances

surrounding the litigation.

4. The State of Kerala, which accounts for 3% of

Country's population, has one of the highest numbers of

matrimonial cases in the Nation. The statistics

available with the NJDG gives a clear picture of the

story. At present, there is a staggering 104015 cases

pending in the 28 Family Courts in the State. This data OP (FC).NO.352 OF 2020 and connected cases

is alarming and if at all not shocking; it speaks about

the disintegration of the family culture and the anomie

our society is facing. We had a structured society in

the past where everyone held hands to resolve such

conflicts. Today, we witness alienation or aloofness of

individuals from the larger family, society and the

community as a whole. Disputes soar to fierce battles

combated through the adversarial litigation. Causes are

projected to establish one's rights sans their

obligations, forcing the Family Courts to drift its

role as conceived under law and to embark the lines of

a normal court.

5. A three-Judge Bench of the Honourable Supreme

Court in K.A. Abdul Jaleel v. T.A. Shahida [(2003) 4

SCC 166], while highlighting on the purpose of bringing

in the Family Courts Act by the legislature, opined

thus:

"It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is OP (FC).NO.352 OF 2020 and connected cases

dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc."

6. In Bhuwan Mohan Singh v. Meena and others

[(2015) 6 SCC 353] the Honourable Supreme Court

observed that the delay in adjudication of the cases by

the Family Courts is not only against human rights but

also against the basic embodiment of dignity of an

individual.

7. Keeping in mind the above observations and as

we are not to remain oblivious and mute to this

perennial issue and being convinced that the procedure

followed by the Family Courts is not working well, we OP (FC).NO.352 OF 2020 and connected cases

alerted the Sensitization Committee of this Court

headed by its Chairman, Mr.Justice A.K.Jayasankaran

Nambiar, who immediately convened a virtual meeting of

the Committee and the Presiding Officers of the Family

Courts in the State. We were also invited. We could

feel the stress and pressure of the Presiding Officers

of the Family Courts who are burdened with a huge

backlog. Some of the Family Courts are compelled to

board 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. We apprehend that the

backlog is leading to a collapse of justice delivery

system, which stands portrayed in the large number of

original petitions being filed before this Court

seeking for the speedy disposal of the proceedings.

8. We directed the Registrar (District Judiciary)

to call for reports from all the Presiding Officers of

the Family Courts, to give their suggestions and

remarks, in order to streamline a uniform procedure for OP (FC).NO.352 OF 2020 and connected cases

the disposal of cases pending before the Family Courts.

A report with the statistics has been placed on board.

9. After considering the report of the Registrar

(District Judiciary), the statistics of the cases

pending before the Family Courts, particularly the

backlog of 5 year plus cases, we are of the considered

opinion that it is time for this Court to issue

directions to streamline a uniform procedure for the

disposal of cases before the Family Courts. Merely

because a litigant has reasons or the resources to

approach this Court for speedy justice, the same cannot

be at the peril of those adhering to the queue. We have

felt that the ritualistic passing of directions for

speedy disposal of proceedings is doing more harm than

good to the system because contested and deserving

cases are being left unattended and the procedure

framed by the Family Courts for disposal of cases is

getting unsettled. Untimely interventions are clogging

the system. The procedure and rules envisage

professional management of matrimonial disputes. Such

management needs to be exhibited at all levels starting OP (FC).NO.352 OF 2020 and connected cases

from filing of proceedings till the decree is

satisfied. Therefore, we deem it fit to direct the

Family Courts to follow the outlines in this judgment.

10. The supervisory jurisdiction of this Court

impels us to issue directions to streamline the

procedure as conceived under law to avoid failure of

justice. Failure of justice in this context is to be

understood to the non-adherence of rules which ensures

the right of the disputants to get timely justice.

These normative and procedural outlines, which are

illustrative in nature, shall be scrupulously followed

by the Family Courts.

Accordingly, we dispose the original petitions by

directing the Family Courts to strictly comply with the

following directions:

Step 1(i): A. NOTIFYING CHIEF MINISTERIAL OFFICER:

All Presiding Officers of the Family Courts are

directed to activate the office of the Chief

Ministerial Officer ('CMO' for short). The

notification issued by the High Court of Kerala OP (FC).NO.352 OF 2020 and connected cases

dated 10.3.2015 notifying the Rules called the

Kerala Civil Courts (Case Flow Management) Rules,

2015 (in short 'Case Flow Management Rules')

enables the Courts to authorise any officer to

exercise the power of the Chief Ministerial

Officer of the Court. The Presiding Officers are

therefore directed to authorise the most competent

Ministerial Officer as the CMO for the purpose of

case flow management.

B. FUNCTIONS AND DUTIES OF CMO: On institution of

proceedings, the CMO shall fix the date for

appearance of the respondent(s). On appearance of

the respondent(s), the parties be referred for

counselling, which shall be in consultation with

the Presiding Officer. The date and time for

appearance of the respondent(s) shall be specified

in the summons issued to the respondent(s) in Form

No.1 of Rule 5 of the Family Courts (Kerala)

Rules, 1989. The CMO shall fix specified timings

for counselling between the parties to a case(s)

in a day and allot the matter to the concerned OP (FC).NO.352 OF 2020 and connected cases

counsellor, who in turn, shall on a daily basis

submit report of each day's work to the CMO. A cap

of a maximum 10 cases in a day shall be fixed for

each counsellor.

C. INSISTENCE OF MEMO TO FURNISH DETAILS OF CASE

PENDING: When a case is presented before the CMO,

the CMO shall insist that the parties to file a

memo furnishing the details of the connected cases

between the same parties pending before the Court.

If such details are furnished, the CMO shall tag

the cases.

D. EXPARTE/UNCONTESTED MATTERS: The CMO shall post

uncontested cases and cases where the

respondent(s) remain absent immediately before the

Court. Similarly, the CMO shall post joint

petitions filed for divorce by mutual consent

before the Court, if the parties fulfil the

conditions laid down by the Honourable Supreme

Court in Amardeep Singh v. Harveen Kaur [2017 (4)

KLT 367].

OP (FC).NO.352 OF 2020 and connected cases

E. CLASSIFICATION OF CASES FOR COUNSELLING: Only

suits or proceedings filed for decrees of nullity,

dissolution of marriages, judicial separation,

restitution of conjugal rights, maintenance,

guardianship, custody and access to minors need be

referred for counselling, unless otherwise

directed or felt necessary by the Presiding

Officer.

F. CASES FIT FOR MEDIATION AT FIRST INSTANCE: In

suits or proceedings for declaration as to

validity of marriage, property, injunction and

legitimacy of a person etc, the CMO shall refer

the parties directly to mediation.

G. DISPUTE/S NOT SETTLED IN COUNSELLING: If

parties are referred for counselling and the

dispute does not get settled, the CMO shall call

for a meeting of the parties and fix a date for

referring the parties to mediation. The CMO shall

also fix a date for the report of mediator with an

outer time frame of 60 days after obtaining a OP (FC).NO.352 OF 2020 and connected cases

formal order from the court. Further time can be

extended only in accordance with Rule 19 of the

Civil Procedure (Alternative Dispute Resolution)

Rules, 2008.

H. CONTESTED CASES: In cases where the mediation

proceeding is unsuccessful, then the CMO shall

call for a meeting of the parties and fix the date

of hearing of the proceeding in Court. While

fixing the date for hearing in the Court, the CMO

shall adhere to the time prescribed in accordance

with the Case Flow Management Rules. The CMO

shall, in consultation with the Presiding Officer,

fix a timeframe in accordance with the Case Flow

Management Rules, to dispose of the case. If the

cases are jointly tried, all such cases shall be

disposed of within the time as specified for

highest track. However, taking note of huge

pendency of cases, we permit the Family Courts to

fix date and period for disposal of freshly

instituted proceedings after reckoning the period

required for disposal of the pending matters. The OP (FC).NO.352 OF 2020 and connected cases

dates shall be fixed after appearance of both

sides and in consultation with both parties.

Lawyer(s) or authorized representatives shall be

allowed to appear before the CMO.

Step 1 (ii): COUNSELLING: The counsellor shall

follow the procedure as referred in Rule 26 of

Family Courts (Kerala) Rules, 1989 while holding

the counselling session. During the course of

counselling, if the counsellor is of the view that

an Expert's assistance is required, the parties

shall be referred to a competent Expert from the

panel formed by the Presiding Officer. If the

counselling session is adjourned, fixing the next

date shall be in consultation with the CMO.

Separate timings shall be given for each party for

counselling in a given day, so as to avoid

crowding in the counselling centres and the

parties getting frustrated by waiting at the court

premises which is not congenial for counselling.

The role of counsellor in the Family Courts is to

handle the person(s) and not the disputes. Matters OP (FC).NO.352 OF 2020 and connected cases

related to custody, nullity, dissolution etc., are

required to be dealt with by the counsellor in a

competent manner, as it involves emotions of

person(s) involved in such disputes. The

counselling date and time shall be fixed according

to the convenience of the parties.

Step 2 (i): Judicial time is wasted for roll

calls. In view of our directions to activate the

CMO's office to deal with routine matters

regarding posting, reference to mediation,

counselling etc., we are of the considered view

that the Presiding Officers of the Family Courts

shall bestow their attention only on matters where

the Courts have to pass judicial orders.

Therefore, the Family Courts, in normal

circumstances, are directed to only list the

following matters namely:

i. Execution proceedings.

ii. Interlocutory applications where urgent orders

are required.

OP (FC).NO.352 OF 2020 and connected cases

iii. Cases listed for trial and hearing in the

special list.

iv. On the day of listing, as envisaged under

Section 9 of the Family Courts Act, the Presiding

Officer shall make an endeavour to persuade the

parties to arrive at a settlement, failing which

the court shall proceed with the trial on day to

day basis. It would be appropriate that the

Presiding Officer interacts with the parties in

the Chambers before the commencement of trial or

at least during the course of the trial.

A. SPECIAL LIST SYSTEM IN FAMILY COURTS: The

Family Courts shall implement the special list

system followed in the civil courts. Cases which

are ripe for trial shall be included in the list

in accordance with the seniority as on the date of

institution of the case. A minimum of 2-4 cases

shall be listed for trial in a day and 2-4 cases

be listed for final arguments. The CMO shall fix

the date for trial of pending cases ripe for trial OP (FC).NO.352 OF 2020 and connected cases

in advance, with the approval of the Presiding

Officer.

B. EXECUTION: Family Courts shall make every

endeavour to dispose execution petition if there

is no stay from superior courts, within the time

provided for disposal of such cases in the Case

Flow Management Rules.

C. EXECUTION OF MAINTENANCE ORDER: The procedure

for execution of maintenance orders, other than

the orders passed under Chapter IX of the Code of

Criminal Procedure read with Sub-Section (2) of

Section 7 of the Family Courts Act, 1984, shall be

done as expeditiously as possible in accordance

with the procedure laid down under the Code of

Civil Procedure.

D. CRIMINAL EXECUTION PETITIONS: Execution

Petitions filed for enforcement of orders passed

under Chapter IX of the Code of Criminal Procedure

read with Sub-Section (2) of Section 7 of the

Family Courts Act, 1984, need not be called in OP (FC).NO.352 OF 2020 and connected cases

Court, unless hearing and judicial orders are

required. The Court shall take necessary steps for

the expeditious disposal of such applications, if

no valid defence is raised.

E. MAINTENANCE THROUGH BANK ACCOUNT: For the

payment of maintenance amounts, the decree

holders/petitioners falling under category B and C

cases mentioned above shall furnish their bank

account details to the CMO to enable the judgment

debtors/respondents to pay the monthly maintenance

through the electronic bank transfer methods like

NEFT/RTGS. The parties need only file memos

evidencing and acknowledging the payments. If the

practice is adopted by the parties, the execution

petitions need not be called in Court, expect

where a party commits default or a dispute is

raised.The parties are also at liberty to adopt

the same procedure for execution of money decrees.

F. APPOINTMENT OF NODAL OFFICERS FOR EXECUTION OF

WARRANTS: Necessary directions shall be issued by OP (FC).NO.352 OF 2020 and connected cases

the Presiding Officer to appoint Nodal Officers in

Revenue and Police Departments under the control

of the District Collector and District Police

Chief respectively, to monitor the execution of

arrest warrants and distress warrants in execution

of orders passed under Chapter IX of the Code of

Criminal Procedure.

G. INTERIM CUSTODY OF CHILDREN: In matters

relating to custody of children, the concern of

the court shall be the best interest and the

welfare of the child. At the first instance,

before considering the prayer for interim custody,

the Presiding Officers shall interact with the

parties and the child, if needed. The Family

Courts shall keep in mind the directions of the

Honourable Supreme Court in Yashita Sahu v. State

of Rajasthan and Others [(2020) 3 SCC 67] while

deciding an application for interim custody,

access, visitation rights and contact rights. If

the Family Courts feels that familiarization of

the child with a parent is required, it shall pass OP (FC).NO.352 OF 2020 and connected cases

orders to ensure that the child is familiarized

with the parent who is denied custody till final

adjudication of the matter. The essence of brevity

in such orders is for clarity and to avoid wastage

of judicial time. Keeping the above objectives in

mind, the Family Courts shall make every endeavour

to pass interim orders accordingly.

H. INTERIM ORDERS: We have come across several

interim orders passed by the Family Courts having

the effect of the final orders/judgments,

especially in matters relating to custody and

visitation rights of children. It is elementary

that the purpose of passing an interim order is,

inter alia, to restrain property from being

wasted/damaged/alienated, preserve the subject

matter or to enforce one's rights or to discharge

the other's obligation relating to dispute pending

final adjudication.

I. TIME PERIOD FOR DISPOSAL OF INTERIM

APPLICATIONS: It would be appropriate that all OP (FC).NO.352 OF 2020 and connected cases

interlocutory applications are disposed within

four weeks after appearance of the parties, if

not, specific reasons shall be stated.

Step 2 (ii): (I). NATURE OF PROCEEDINGS TO RECORD

ORAL EVIDENCE:

A. APPOINTMENT OF ADVOCATE COMMISSION: If both

parties agree, the Family Court may appoint an

Advocate Commission to record the oral evidence of

parties and their witnesses.

B. If the Presiding Officers record the evidence,

the court shall follow the procedure as

contemplated under Section 15 of Family Courts Act

i.e., to record or cause to record only the

memorandum of substance of what the witness

deposed. This again would avoid unnecessary

wastage of time in recording matters which are not

relevant to the issues involved in the proceeding.

C. It is also open for the Family Courts to record

evidence of persons, wherever such evidence is of OP (FC).NO.352 OF 2020 and connected cases

formal character, through affidavit of such

persons.

II. VIDEO CONFERENCING: When an application is

filed to record the evidence through Video

Conferencing, the Family Courts, if it feels so,

shall allow such application following the Video

Conferencing Rules approved by the Full Court of

the Kerala High Court (yet to be notified by the

Government) and the law laid by the Honourable

Supreme Court in State of Maharashtra v. Dr.

Praful B.Desai [(2003) 4 SCC 601] and Santhini v.

Vijaya Venketesh [2017 (4) KLT 415 (SC)]. The

Registrar (District Judiciary) shall make

available a copy of the Video Conferencing rules

along with this judgment to all the Presiding

Officers.

III. CONSOLIDATION AND JOINT TRIAL: After a case

is ripe for trial, wherever possible, the Family

Courts shall order the consolidation and joint OP (FC).NO.352 OF 2020 and connected cases

trial of all the proceedings between the same

parties.

Step 3(i) A. PENDING MATTERS: The Presiding

Officers shall take immediate steps to refer all

pending cases to mediation, if not referred so

far. All other pending cases shall be listed for

trial only in accordance with their seniority as

on the date of institution of the proceeding and

keeping in mind the volume of pending cases.

B.LOK ADALATHS: It would be appropriate for the

Family Courts to convene Adalaths in consultation

with District Legal Services Authority for

settling all pending proceedings which are ripe

for trial at least on quarterly basis.

C. ADVANCED HEARING: Family Courts are permitted

to depart from the procedure aforenoted on a

motion made by a party for early hearing of a

case(s) for any justifiable or valid reason. If

any party desires to move an application for early

hearing, he/she shall move the Family Court at the OP (FC).NO.352 OF 2020 and connected cases

first instance. The Family Court shall dispose of

such application, as expeditiously as possible, at

any rate within two weeks from the date of moving

such application. It would be open to the Family

Court to pass orders on such applications in the

chambers. This court need not entertain any

original petitions, filed under Article 227 of the

Constitution of India, for early disposal of

cases, unless the parties move the concerned

Family Court at first instance.

D. SENIOR CITIZEN: In cases involving senior

citizens, if the Family Court is of the view that

the outcome of such cases will have direct impact

on the rights of the senior citizen, the Family

Court shall make every endeavour to dispose such

cases within the outer limit of six months of

appearance of parties.

The above directions shall be implemented with effect

from 1 of June, 2021. The Family Courts are directed to st

place a report before the Registrar (District OP (FC).NO.352 OF 2020 and connected cases

Judiciary) by 31/12/2021 with regard to compliance of

the above directions.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                   C.S.DIAS

ms/ma                               JUDGE
              APPENDIX OF OP (FC) 352/2020
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE D.O.P NO.1316/2016 FILED

BEFORE THE FAMILY COURT, ERNAKULAM, DATED 08.07.2016.

EXHIBIT P2 TRUE COPY OF THE OP (GW) NO.15762/016 FIELD BEFORE THE FAMILY COURT, ERNAKULAM, DATED 17.08.2016.

EXHIBIT P3 TRUE COPY OF THE M.C 433/2017 FILED BEFORE THE FAMILY COURT, ERNAKULAM, DATED 24.10.2017.

EXHIBIT P4 TRUE COPY OF THE CONSOLIDATED PROOF AFFIDAVIT FILED BY THE PETITIONER IN EXHIBIT P1 TO P3 DATED 22.6.2018.