Family Courts Must Be Empathetic To Litigant's Distress, Not Insist On Personal Appearance: Madras HC Proposes Online Mediation In Family Matters

The Madras High Court recently observed that the procedure adopted by the Family Courts in the State insisting on the personal appearance of the parties in a family case for every hearing resulted in procedural delays and inefficiency. The court noted that such insistence often lead to significant delays and affected the performance of the court. Justice V Lakshminarayanan also pointed out that it was inhuman to expect that the litigant was available at every beck and call of the court. The court emphasized that Family Courts were expected to approach family matters in a humane and reasonable manner. The court added that the courts had to be more empathetic to the physical, emotional, and financial distress of the litigants. “The Family Courts were established to approach the family matters in a humane and reasonable manner. And as already noted, the Family Court was established as a separate institution to be more empathetic to the physical, emotional, and financial distress of the litigants. Even for the Family Courts, the personal attendance of the litigants during every hearing, including the procedural hearings, would tend to contribute to their inefficiency and delay in proceedings as the attendance of the litigants cannot always be guaranteed and would lead to more disorder within the court premises,” the court said. The court further added that Section 13 of the Family Courts Act and Rule 41 of the Family Court Rules do not prevent the litigants from being represented by advocates but only state that the parties are not entitled to be represented as a right. The court added that the intention behind bringing such provisions was to ensure that the procedure does not become adversarial. The court added that the legal provisions did not intent to affect the rights of the parties. “As discussed in the earlier paragraph, the only reason for restricting the appearance and practice of the lawyers before the Family Courts was to prevent the proceedings from becoming adversarial. However, if the lack of representation by a lawyer would negatively impact a party's right to effectively present/contest her/his case, then the Court must be liberal in exercising its discretion under Rule 41 of the Family Courts Rules,” the court observed. The court was dealing was hearing petitions challenging the Family Court's refusal to number the power of attorney and the refusal to permit parties, who were outside India to participate in the proceedings via video conferencing. The court relied on the decision of the High Court in G. Shrilakshmi Vs Anirudh Ramkumar which had facilitated representation through power agents in cases under Section 13B of the Hindu Marriage Act, and observed that the ratio could be applied to other cases pending before the Family Court as well. The court noted that the same would facilitate expeditious disposal of cases and would ensure that the Family Courts do not meander from their ingrained obligation to be responsive to the plight and pleas of the litigants. However, to ensure the bonafide of a power of attorney, the court deemed it fit to lay down certain guidelines. These included registration of the power of attorney within the jurisdictional Sub-Registrar or executing the power of attorney in the presence of a notary public. Further, if the power of attorney was executed abroad and sent to India, it should be adjudicated by the competent authority or notarised by a notary public or similar officer appointed by that country to attest the document. The court further emphasized that the power of attorney should be allowed to represent the party during every stage of the proceeding except during mediation and recording of evidence or when the presence of the party was felt indispensable. The court ordered that on the day of presentation of the plaint by the power of attorney, the party must email the soft copy of the plaint/petition to the registered email address of the court. Highlighting the importance of mediation in the proceedings, the court noted that while the presence of the party during mediation was indispensable, it was not always possible for the parties to physically appear for mediation. In such circumstances, the court noted that it was fair to allow the parties to participate in the proceedings online. The court noted that though Section 30 of the Mediation Act allowed online mediation, this section was not brought into force and the rules regarding online mediation were yet to be framed. However, the court noted that the Tamil Nadu Mediation Rules 2010 provided venue for mediation which was any place as agreed by the parties subject to approval by the Court. Thus, court noted that though the Rules did not specifically provide for online mediation, it was not prohibited under the Act. Noting the High Court's constant efforts to promote online mediation and that the...

Family Courts Must Be Empathetic To Litigant's Distress, Not Insist On Personal Appearance: Madras HC Proposes Online Mediation In Family Matters

Upasana Sajeev

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