NISHA HANEEFA Vs. ABDUL LATHEEF

JUDGEMENT

(1.) PRELUDE: This original petition provides some insight into the powers of the Family Court. The Family Courts Act, 1984 was enacted for the establishment of the Family Courts to promote conciliation and speedy settlement of disputes relating to marriage and family. Over the years, our experience shows that the Family Court has been functioning in like 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 Family Courts are unique in the dispute resolution system in India. The unique feature has not gained the attention of the adjudicators, lawyers or litigants. The focus of the adjudication of the Family Courts is on the parties and not on the disputes. Forgetting this functional objective, the Family Court continues to act as an adjudicator of a normal Civil Court. This has resulted in a combative approach for litigants in all disputes before the Family Courts. The litigants before the Family Courts are aloof from the process. The lawyers continue to dominate the process and procedure. This edifice, built in and around the Family Court kept the litigant at bay, observing the process and procedure reflected through the orders or from the websites. The lawyers continue to deal with the cases, with rules of law and procedure, as exactly as they follow in an ordinary Civil Court. The presiding officer remains a neutral umpire, watchfully eyeing on the rules and procedure, to give a verdict. The sad plight of the functioning of the Family Court, often, is portrayed before this Court by challenging the orders, invoking Article 227 of the Constitution. The very purpose of restricting the challenge to the final order has been lost as the Family Court is more engrossed in passing interim orders focusing on rights, obligations or disputes rather than focusing on the parties before them. Dissatisfaction with the administration of justice in the Family Courts is writ large on the face of many orders challenged before this Court. If the law and procedure override the system we follow, necessarily, it is bound to recapitulate in a hierarchical challenge. With this prelude, we shall now proceed to decide on the question posed before us regarding the foundational function of the Family Courts in India, "Do Family Courts have to remain as a neutral umpire of the real dispute between the parties?". We must answer it in negative, no doubt judges of Family Courts have to be impartial or neutral, but proceedings or processes are not ordained to be away or aloof from making enquiry to find the truth of the real dispute.

(2.) The brief facts of the case are as follows: The petitioner in O.P.No.30 of 2020 on the file of the Family Court, Pathanamthitta, is the petitioner herein. The claim is for realisation of patrimony and recovery of gold ornaments. The Family Court, suspecting collusive effort between the husband and wife as against the father and mother of the husband ordered an enquiry as follows: The 2nd and 3rd respondents are directed to take steps to the VO concerned, Tahsildar and SP to file report whether the petitioner and 1st respondent are residing separately or together, if residing separately from which date they are separated, adjourned to 17/4/2020. The claim is against the husband and the in-laws. The in-laws of the petitioner contended that the petitioner and the husband colluded together. The present petition is only to counter the action of the second respondent who is the father of the husband, who revoked the settlement deed executed in favour of the husband.

(3.) We shall now advert to the powers of the Family Court to understand the nature, scope and powers of the Family Court under the Family Courts Act.