Be Sensitive, Avoid Lengthy Civil Procedure: Gujarat High Court Asks Family Courts To Proceed More Like Conciliators, Sets Out Principles

While considering a wife's plea against a family court's verdict which refused to grant her divorce, the Gujarat High Court underscored that in adjudicating family dispute cases including Child Custody and Maintenance, family courts must deal with them with sensitivity with the welfare of those affected being the focus. The high court was considering the wife's appeal against the decision of the family court which had dismissed her divorce plea where she had alleged mental cruelty and desertion due to the behaviour of the husband and lack of support. The Family Court dismissed the petition of the wife in spite there being a mutual divorce deed in 2014 and separation of 11 years between the couple. The High Court then reversing the decision of the Family Court said that when a marriage is irreparably broken, it is unjust to insist the couple to rekindle and it leads to cruelty.A division bench of Justice Biren Vaishnav and Justice Maulik J Shelat in its order “reminded” the Family Court to keep in mind the principles to be followed when deciding cases related to family disputes, child custody and maintenance.The Family Court must keep in mind the Object and Reasons whereby the Family Court, 1984 that was brought by the Parliament.The family dispute brought before the court to be considered as an adversarial litigation like any other civil or commercial dispute.The Family Court has to dealwith it in a more sensitive and humane manner.The Family Court shall pay more emphasis on conciliation rather than strict civil litigation procedure.The High Court then said that the expense of repetition, the attempt should be always to achieve the object of the Family Court Act, 1984 but not to frustrate by creating unnecessary lengthy procedure like the procedure of civil trial.The Family Court should handle marriage, child custody, and maintenance issues with sensitivity, avoid mechanical, myopic and hyper technical approach towards the issue germane in the suit and always act for betterment and welfare of victim of family dispute to sub-serve the object of Act, 1984.The plaintiff seeking divorce has to prove his case on the preponderance of probability rather than beyond a reasonable doubt.The high court further emphasized, "It should keep in mind that what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when a Family Court examines a case in which a wife seeks divorce. What is found by us is that the Family Court by merely reproducing the case law take a decision without really appreciating the facts of each case on its own merits. When in a given case, the Family Court is granting decree of divorce then it should consider the issue of permanent alimony of spouse who is considered weak/poor not in a position to maintain herself/himself and pass appropriate order of permanent alimony in favour of such a party and also, where there is/are child/children out of such a wedlock, the alminoy has to be worked out accordingly". BackgroundThe petitioner married the respondent husband in 2009 and they had a son in 2012. However, after the birth of their child, there were constant issues between the couple wherein the wife alleged husband's betting addiction on cricket led to financial strain. She further alleged that the he neglected her and their son and asked her for money to cover his debts that led to mental cruelty that eventually led her to leave her matrimonial home in 2013. Since then, the couple lived separately and never cohabited.The couple decided to mutually divorce in 2014, the wife then filed decree of divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, with the grounds of cruelty and desertion. The Family Court dismissed her petition, stating that there are procedural gaps and lack of specific evidence in her pleadings. Challenging the order of the Family Court, she moved to the High Court.The Counsel appearing for the wife argued that the Family Court wrongly rejected the wife's divorce petition. He further explained that the wife was forced to leave home in 2013 due to her husband's cruel treatment. The court did not properly consider her case and pointed out about their long separation and they haven't co-habited for 11 years. He further submitted that there has been a mutual divorce and the deed was carried out in 2014, he submitted that the Family Court committed error in dismissing the wife's plea.The husband's Counsel then submitted that that the divorce was mutualy decided and then pointed out that their marriage is broken down. Further he submitted that the couple had been apart for 11 years and there is no scope for reconciliation. The counsel further requested the Court to grant the divorce and pointed about that according to the agreement between the couple, the maintenance will not be awarded.Lastly, both the counsel stressed on the couple's mutual desire to end the marriage and put an end to the...

Be Sensitive, Avoid Lengthy Civil Procedure: Gujarat High Court Asks Family Courts To Proceed More Like Conciliators, Sets Out Principles

Lovina B Thakkar

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