kapilshah 06 May 2015

Can family court refuse interrogatories application?

Hello experts

I filed an application under order 11 rule 1 for interrogatories . The hon'ble judge told that interrogatories are not applicable in family court. I was surpised. I cited a case reference of Orissa High court

" Ganga Devi vs Krushna Prasad Sharma on 22 October, 1964 , " where district judge rejected appln and high court allowed in sec 24 of HMA.

He then said thats before the family courts act. In family court interrogatries are not allowed. I further tried to cite Delhi HC judgement of 2014. Even before reading he defered it to next hearing.

Is this something wring in my understanding ? Family courts don't follow CPC ? Family courts act section 10(1) does say so .

10. Procedure generally.-

(1) Subject to the other provisions of this Act and the 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 purposes 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. -(1) Subject to the other provisions of this Act and the 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 purposes 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."

Unfortunately I didn't have family courts act copy with me to cite at the time of hearing. can hon'ble judge make such wrong judgement on CPC order 11 rule 1 ? I need to make my case strong in next hearing for the same. Please help.

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6 Replies

kapilshah 11 May 2015

Experts please help. In my opinion the family courts are civil courts are governed by section 10 of family courts act. They are suppose to follow the rules laid under civil procedure code.

A Shukla 21 October 2017

I think there is no bar to interrogatories in a family court. Code of civil procedure does not make any exception for family court and nor does the family court act make any such exceptions. You may use the below judgement:

KERALA HIGH COURT

PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN

WEDNESDAY, THE 10TH DAY OF JULY 2013/19TH ASHADHA, 1935

I.A. NO. 356/2013 IN O.P.NO. 935/2012 OF THE FAMILY COURT, ERNAKULAM

PETITIONER: SINDHU ELIZABETH JOSEPH AGED 43 YEARS D/O.N.A.MATHEW, RESIDING AT NO.5 GOLDEN OAK VILLA CHEMMANAM JUNCTION, PADAMUGAL, KAKKANAD ERNAKULAM DT., PIN-682030.

BY ADV. SRI.T.M.RAMAN KARTHA

RESPONDENT: DR.PETER K.JOSEPH, AGED 49 YEARS S/O.K.C.JOSEPH, VALLAKALIL, TC 4/109(1) HOUSE NO.G.20, CHESHIRE HOME RESIDENTS ASSOCIATION, KOWDIAR P.O., THIRUVANANTHAPURAM-695003. BY ADV. SRI.K.M.SATHYANATHA MENON & ADV. SRI.A.SANTHOSHKUMAR

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 21 October 2017

Dear Querist

The Family Court has exceptional and extra ordinary power to use their own procedure too, as per section 10(3) of Family Court Act-1984

10. Procedure generally.-

(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 that 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.

So if the Family Court think fit and proper for the case then the Court may denied the same, but you have right to file an appeal or revision before the High Court against the order of the family court.

Feel Free to Call

9899686394, 9953809956

A Shukla 21 October 2017

I agree. A family court judge may use this pretext to deny your request and you will need to approach higher court. Before moving to higher court, the below approaches may also be tried:

- Give a notice to admit facts under order 12, rule 4 of CPC. Mention the fact of her employment here.

- Get a photograph of hers while going to office and give notice to admit document under order 12, rule 2

- Get summons to income tax authorities to produce her Fomr 26-AS under order 16 rule 1

But I think you will be able to do the second thing mentioned above only if you had included the photograph in the list of documents or you get the court's leave to add new documentary evidence,

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 21 October 2017

file an application u/s 106 of Indian Evidence Act or section 91 of Cr.P.C. for the same if the matter is related to section 125 of Cr.P.C., because the Civil procedure Code will not be applied in thge maintenance proceedings U/s 125 of Cr.P.C.

Dr. Atul [9013898936] (Lawyer, Scholar) 22 October 2017

No, the Family Court cannot refuse the relief sought under Order 11. Either another overzealous attempt or one to get rid of the workload, but either ways, such order is not sustaintable.

Dear Nadeem, the law does not prevent a Family Court from laying down its own procedre - 'does not prevent' being the operative word. Section 10(3) is an enabling provision 'permitting' the Family Court to set procedure in accordance with the facts. Hoever, that does not permit the Court to bar and deny the applicantion of law which otherwise binfs a Civil Court; a Family Court cannot state that it shall conduct its proceedings like a panchayat throwing CPC to the dustbin. A Family Court is a Civil Court at the end of the day, having a principal original jurisdiction on matrimionial matters acting under the CPC, it is not a statutory Tribunal.