Family cases decide speedy-article 21 of Constitution of India & Section 21B of HMA.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2016
CORAM:
THE HON'BLE Dr. JUSTICE S.VIMALA
Civil Revision Petition (PD) No.320 of 2016
Meenakshi Sundaram,
S/o.M.Varadharajan,
No.1, Adhi Naidu Street,
Villivakkam,
Chennai  600 049.		                                	 ...  Revision Petitioner

					..vs..

H.Radha,
D/o.T.S.Kunjithapatham,
No.12, Old No.15, Ayyappa Nagar,
Duraisamy Garden,
Nanganallur, Chennai  600 061				...  Respondent

Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, seeking direction to the III Additional Family Court at Chennai to dispose of the O.P.No.622 of 2003 within a time frame to be fixed by this Court.
		     For Revision Petitioner	 :  Ms.B.S.Ajeetha
- - -
O R D E R

Justice delayed is justice denied – This is a tragedy, felt stronger and deeper, when justice is delayed in cases of Matrimonial disputes, leaving the parties to the litigation in constant emotional disturbance, relentless worries, paving the way for multiplicity of proceedings in the interregnum. This is the silent cry of the husband, who is allegedly deprived of the conjugal relationship right from the date of marriage.

2. This Civil Revision Petition has been filed by the husband, seeking a direction to the III Additional Family Court at Chennai to dispose of the O.P.No.622 of 2003 within a time frame to be fixed by this Court.

3. The Husband / Revision Petitioner herein originally filed a petition under Section 12 (1) (c) ofThe Hindu Marriage Act, 1955, in O.P.No.622 of 2003, seeking a declaration that the marriage between the petitioner and the respondent was a nullity. The main allegation in the petition was that the wife was disinclined to live with the husband and that she refused to consummate the marriage. Later on, with an allegation that despite efforts being taken by the husband to correct her deviant behavior, through medical assistance, there was no cooperation on the side of the wife and that the refusal to render conjugal company also continued, which amounted to mental cruelty, the petition was amended and the husband sought for divorce on the ground of cruelty.

4. It is a well known fact that pendency of family Court cases are mounting and the learned Judges of Family Courts are insurmountable pressure to have the cases disposed of. The Government has also sanctioned three additional Family Courts, still, the arrears could not be liquidated.

4.1. Despite the Family Court Judges’ burning the midnight oil, they are not able to clear the pendency, because of: (a) the attitude of the parties; (b) procedural flexibility not being utilized; (c) parties not willing to settle the matter at the earliest point of time; and (d) pre-litigation settlement not being utilized.

5. What are the other contributing factors clogging the system?

5.1. The Family Courts were established for the speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.

5.2. There is a duty enjoined on the family Courts to make efforts for settlement at the first instance, wherever it is possible to do so, consistent with the nature and circumstance of the case. As the settlement brings finality to the litigation and peace to the family, the Family Courts Act, 1984, (hereinafter referred to as the Act) provides for settlement of disputes through like Alternate Dispute Resolution (ADR) methods, i.e., Conciliation, Mediation, Lok Adalat, etc. 5.3. The legislature has prescribed time limit within which the cases are expected to be disposed of. The relevant provision dealing with time frame, under the Hindu Marriage Act, 1955, namely,Section 21B of the said Act, reads thus:-

Section 21B in The Hindu Marriage Act, 1955 21B Special provision relating to trial and disposal of petitions under the Act. ?

(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent. 5.4. Apart from pointing out the time frame, it is also necessary to point out the special machinery / infrastructure available, which is aimed at speedy disposal of the matters pertaining to Family Courts.

(A) Section 5 of the Family Courts Act provides for Association of Social Welfare Agencies, andSection 6 of the said Act provides for Assistance of Counsellors in the discharge of functions of the Family Courts. Sections 5 and 6 of the said Act read as under:-

5. Association of social welfare agencies, etc.-The State Government may, in consultation with the High Court, provide. by rules, for the association, in such manner and for such purposes and subject to such conditions as may be specified in the rules, with a Family Court of-

a.institutions or organisations engaged in social welfare or the representatives thereof;

b. persons professionally engaged in promoting the welfare of the family;

c. persons working in the field of social welfare; and d. any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act.

(B) 6. Counsellors, officers and other employees of Family Courts. -(1) The State Government shall, in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such counsellors, officers and other employees as it may think fit.

5.5. So far as the procedural aspects are concerned, the provisions of The Indian Evidence Act, is not strictly applicable and it would be appropriate to quote Section 14 of the Act:-

14. Application of Indian Evidence Act, 1872.-A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion. assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under theIndian Evidence Act, 1872 (1 of 1872) 5.6. So far as recording of evidence is concerned, it shall not be necessary to record the evidence of witnesses, verbatim, and it is enough if the substance of the evidence is recorded and the relevant provision is Section 15 of the Act, which reads as under:-

15. Record of oral evidence.-In suit or proceedings, before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judges as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. 5.7. Though the provisions of the Civil Procedure Code is made applicable, still, the Family Courts can lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceeding and Section 10 of the Act, dealing with the same, runs as under:-

10. Procedure generally.-(1) Subject to the other provisions of this Act and rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before a Family Court and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), or the rules made thereunder, shall apply to the proceedings under Chapter IX of the Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. 5.8. Apart from the provisions of the Family Courts Act, under Article 21 of the Constitution of India, no person can be deprived of the life or liberty, except in accordance with the procedure established by law and if the procedure is to be fair and reasonable, the Family Court should ensure speedy disposal.

5.9. There is no procedure established by Law which could justify the delay in disposal.

5.10. Despite the procedural flexibility, multiple method of settlement and availability of specialized service agencies available to ensure speedy disposal, the reality is otherwise. It is prolonged than a regular civil suit. Keeping the case pending by one of the litigant, amounts to harassment to the other side and it is deliberately resorted to, as a method of punishment to the other side.

5.11. It will not be out of place to quote Section 17 of the West Pakistan Family Courts Act, 1964, which provides for total flexibility in the system of dealing with family court cases, whereunder there is an express provision making the Evidence Act, 1872 and the Code of Civil Procedure inapplicable to Family Court Cases. Section 17 of the said Act reads as under:

Section 17, West Pakistan Family Courts Act, 1964.

(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872, and of the Code of Civil Procedure, 1908, shall not apply to proceedings before any Family Court.

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts.

5.12. Section 17 of the said Act was enacted towards implementing the Law Reforms Commission of 1958-59 and the recommendation is to the following effect:-

In order to provide a cheap and speedy remedy to married women, orphans, sisters and daughters, who are generally handicapped for lack of funds, it appears necessary to set up Special Family Laws Courts, which will not be hidebound by the technicalities of the Civil Procedure Code or the Evidence Act. They should, instead, follow a very much simplified procedure. We agree with the proposal made by the Commission on Marriage and Family Laws, to the effect that the Legislature should lay down a few fundamental principles for the guidance of such Courts and the remaining procedure should be regulated by simple rules to be framed by the High Courts. The object aimed at should be that substantial justice should be ensured to the parties who will have recourse to these Courts and, therefore, there should be a certain amount of flexibility in the procedural rules that shall govern these Courts.

6. It is time to ponder over the consequences of the delay involved in the disposal of cases relating to family court. This petition is pending for 13 years. No need to point out that youth is powerful and productive. The dispute is between couple, who were expected to be intimate / who were intimate. Emotional explosion is involved in almost all cases relating to matrimonial dispute. The interest of children is involved in several cases. The pending dispute shatter the mental peace. The future planning is kept under suspension. Procreation of children may become an impossibility because of the advancement of age. The impatient litigant resort to illegal marriage and that lead to birth of illegitimate children. When such serious consequences are involved, it is for the learned Judges of the Family Court to find out ways and means to dispose of the cases quickly, despite the huge pendency. The bottlenecks in the system and the handicap for the learned Judges, if any, should be discussed in Judicial Academies and solutions in terms of either change in law or change in procedure or change in attitude of the parties must emerge.

7. Justice V.R.Krishna Iyer, lamented the delay by remarking that ‘Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ and that speedy justice is a component of social justice must be ensured to every litigant’. This case also is a case where the situation is grave, as the allegation is non-consummation of marriage. Therefore, the learned III Additional Family Judge, Chennai, is hereby directed to give top priority to the disposal of the case in O.P.No.622 of 2003 and dispose of the same, preferably within a period of eight weeks from the date of receipt of a copy of this order.

S.VIMALA, J., ogy/srk

8. With the above direction, this Civil Revision Petition is disposed of. No costs.

10.02.2016

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s