Provisions Of CPC Applicable In Proceedings Before Family Court: Allahabad High Court Reiterates

While examining a divorce case, the Allahabad High Court has held that in light of Section 10 of the Family Courts Act, provisions of the Civil Procedure Code are applicable before the Family Court and therefore, a writ petition seeking Writ of Prohibition could not be entertained by the High Court in presence of remedy of appeal.

“It would be pertinent to observe here that provisions encoded in Civil Procedure Code are based on principle of natural justice and fair play, hence all the provisions of Civil Procedure Code are made applicable to the proceedings before Family Courts within the meaning of Section 10 of the Family Courts Act,” held Justice Manish Kumar Nigam.

Case Background

The petitioner and respondent are a married couple. Due to the differences between them, cases were instituted against the petitioner. Thereafter, petitioner filed for a divorce under Section 13 of the Hindu Marriage Act, which was allowed by judgement and decree dated 16.01.2019 and 28.01.2019, respectively. In response, on 29.05.2019, respondent filed an application under Order IX Rule 13 of the C.P.C. read with Section 151 of the C.P.C., an application under Section 5 of the Limitation Act and a stay application against the aforementioned judgment and decree.

The Principal Judge, Gonda granted the respondent the stay and issued to notices to the petitioner. Aggrieved, the petitioner filed for a writ of prohibition, contending that under Section 19 and 20 of the Family Court Act, 1984, the Principal Judge did not possess the jurisdiction to entertain a petition under Order IX Rule 13 read with Section 151 of the C.P.C.

High Court Verdict

The Court observed that a Writ of Prohibition could only be issued where a lower court or tribunal had exercised jurisdiction in excess of what was available to it. It was clarified that in cases where the court or tribunal had erred, the mistake could only be remedied by an appeal, revision or proceedings under Article 227 of the Constitution of India, and not a Writ of Prohibition.

Further, the Court held that on an examination of Section 10 the Family Court Act, 1984, the provisions of the CPC would be wholly applicable before a Family Court.

“A close scrutiny of Section 10 of Family Court Act clearly provides that subject to the other provisions of this Act and the Rules the provisions of Code of Civil Procedure, 1908 and of any other law for time time[sic] in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 before a Family Court and for the purposes of the said provisions of the Code Family Court shall be deemed to be a civil court and shall have all the powers of such court,” held the Court.

The Court held that the contention of the petitioner that in light of Sections 19 and 20 of the Family Courts Act, 1984, the respondent only had the remedy of filing an appeal against the ex-parte judgement was incorrect. It relied on the judgment of the Supreme Court in Rabindra Singh v. Financial Commissioner Co-operation Punjab and Ors. to hold that all courts possess an “incidental power to set aside ex parte order on the ground of violation of the principles of natural justice”.

The Court held that arguments of the petitioner based on the merits of the case could not be entertained in a Writ of Prohibition and accordingly, the writ petition was dismissed.

Case Title: Nagendra Sharma and Anr. v. Court of Prin. Judge Family Court Gonda and Anr. [WRIT - C No. - 6354 of 2022]

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