Family Court Can’t Delegate Recording Of Evidence To Advocate Commissioner Without Consent Of Parties: Kerala HC [Read Judgment]

“Sensitive issues like cruelty, adultery, desertion or custody of children can be better adjudicated only when the witnesses are cross-examined before the face of the Court itself”.

The High Court of Kerala has held that evidence in matrimonial cases has to be recorded by the court itself, and that the Advocate Commissioner can be appointed to record evidence only if the parties have no objection to such a procedure.

The decision was rendered by a division bench comprising Justice V Chitambaresh and Justice Satish Ninan. The court was considering a petition filed to challenge the order of family court which had dismissed the prayer to record the evidence by the court itself, instead of the Advocate Commissioner.    According to petitioner, sensitive issues crop up in family matter, and hence oral evidence has to be recorded by the judge. On the other hand, the respondent contended that it was well within the powers of the court to delegate evidence recording to the Advocate Commissioner, and the amendment made to the Code of Civil Procedure in 2002 permits such procedure.

The court agreed that Rule 4 of Order XVIII and Rule 4-A of Order XXVI inserted in the CPC by the 2002 amendment permitted recording of evidence by the Advocate Commissioner appointed by the court, and the amendment was upheld by the Supreme Court in Salem Advocate Bar Association's cases.  However, the court also noted that proceedings in the family court stood at a different footing when compared to ordinary civil disputes. As per Section 10 of the Family Courts Act, provisions of the CPC are not as such applicable to family cases, and the court can devise its own procedure. It is not necessary for the judge of the family court to record the evidence of witnesses at length and it would suffice if a memorandum of the substance of the deposition is recorded, as per Section 15.

Tracing the reason for the provision, the court observed that “sensitive issues like cruelty, adultery, desertion or custody of children can be better adjudicated only when the witnesses are cross-examined before the face of the Court itself”.  All that is stated in the court need not go on record, having regard to the sensitivity of issues, and only the judge can remove the chaff from the grain in assessing a witness. The family court often misses the woods for the trees when faced with voluminous evidence recorded by the Advocate Commissioner most of which may not be relevant for deciding the issue, said the bench.

Marital disputes have a personal touch depending on the character of the warring spouses and their social background which the Judge of the Family Court need to assess first hand. It is trite law that the demeanor of the witnesses have to be watched before assessing their credibility for the Court to rest its conclusion on their evidence in the verdict. The life and future of the parties in a marital dispute are at stake and the resolution of such disputes cannot be treated on par with adjudication of other disputes by the Civil Court, stated the judgment authored by Justice Chitambaresh.

The court also clarified that the parties can waive the right to depose before the court, and can opt for getting the evidence recorded by the Advocate Commissioner. The directions of the Court are:

1. The family court shall have the evidence of the witnesses recorded by the Advocate Commissioner appointed only if either parties to the lis have no objection to adopt such course of procedure.


2. The witnesses shall be permitted to be examined before the face of the Court itself if either parties to the lis insist on such procedure in which event the Judge need record substance of the deposition only.

Sam Isaac Pothiyil appeared for the petitioner and B Krishnamani appeared for the respondent. RT Pradeep assisted the court as amicus curiae.