Kerala High Court Issues Guidelines To Family Courts For Early Disposal Of Cases

In a significant judgment delivered today, the Kerala High Court has issued guidelines to streamline and prescribe a uniform procedure for disposal of cases before Family Courts in the State.

The order has been passed by a Division Bench comprising of Justices A Muhamed Mustaque and CS Dias in a batch of petitions highlighting the hurdles faced by the parties in resolving their matrimonial disputes.

The Petitioners had invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution and had sought for directions to the Family Courts to expeditiously dispose of pending proceedings.

In this backdrop, the Bench observed,

"The supervisory jurisdiction of this Court impels us to issue directions to streamline the procedure as conceived under law to avoid failure of justice. Failure of justice in this context is to be understood to the non-adherence of rules which ensures the right of the disputants to get timely justice. These normative and procedural outlines, which are illustrative in nature, shall be scrupulously followed by the Family Courts."

While the bulk of the Court's pronouncement today is devoted to the guidelines it has issued to the Court, the Court attempted to examine why proceedings before family courts were obstructed by delays.

When Parties invoke the High Court's Supervisory Jurisdiction under Article 227 of the Constitution

Litigants who were able to approach the High Court moved petitions for the 'expeditious disposal' of their cases. Inadvertently, many cases where litigants could not move court remained pending for year, the Court noted.

Terming the phenomenon, 'perceived injustice', the bench remarked that the ritualistic passing of directions was clogging the system.

It was stated,

"Merely because a litigant has reasons or the resources to approach this Court for speedy justice, the same cannot be at the peril of those adhering to the queue. We have felt that the ritualistic passing of directions for speedy disposal of proceedings is doing more harm than good to the system because contested and deserving cases are being left unattended and the procedure framed by the Family Courts for disposal of cases is getting unsettled. Untimely interventions are clogging the system."

Therefore, the Bench in its directions has expressly provided that parties who move applications for expeditious disposal of cases do so before the concerned Family Court prior to moving the High Court.

What contributes to delay?

While the Court did agree that it could not ascribe specific reasons for delay, the Court indicated that lack of infrastructure, docket explosion, untrained officers and staff, inept case management were a few that could be listed.

Additional reasons were that lawyers and judges often carried their experience with adversarial litigation into family disputes, transforming proceedings from the envisaged harmony to an adversarial set up.

This could also be a cause of delay, the Court opined.

"Judges as well as lawyers are not really equipped to handle family disputes befitting to the standards required under law adding to delay", the Bench stated in this regard.

Pointing to the Objects of the Family Courts Act, which was enacted to help the parties to resolve their disputes in a harmonious way in preference to adversarial litigation, the Court prescribed a list of detailed requirements for family court proceedings.

"The State of Kerala, which accounts for 3% of Country's population, has one of the highest numbers of matrimonial cases in the Nation. The statistics available with the NJDG gives a clear picture of the story. At present, there is a staggering 104015 cases pending in the 28 Family Courts in the State. This data is alarming and if at all not shocking; it speaks about the disintegration of the family culture and the anomie our society is facing. We had a structured society in the past where everyone held hands to resolve such conflicts. Today, we witness alienation or aloofness of individuals from the larger family, society and the community as a whole. Disputes soar to fierce battles combated through the adversarial litigation. Causes are projected to establish one's rights sans their obligations, forcing the Family Courts to drift its role as conceived under law and to embark the lines of a normal court" - The Bench on reasons for the rise of family disputes

The guidelines have been drawn up after extensive consultations with Presiding Officers of Family Courts.

"We could feel the stress and pressure of the Presiding Officers of the Family Courts who are burdened with a huge backlog. Some of the Family Courts are compelled to board more than 200 cases a day in an attempt to clear the arrears. The delay in disposal of the cases has resulted in large number of interlocutory applications being filed on day-to-day basis. We apprehend that the backlog is leading to a collapse of justice delivery system, which stands portrayed in the large number of original petitions being filed before this Court seeking for the speedy disposal of the proceedings" - The Bench reminisces its experiences during consultations with Presiding Officers of Family Courts

What the Court outlined?

Step 1

Appointment of a competent Chief Ministerial Officer (CMO) to a streamline the progress of a case as per the Kerala Civil Courts (Case Flow Management) Rules, 2015 (Case Flow Management Rules').

The first task of the CMO would be to issue summons to respondents and refer the parties to counselling. Each counsellor is allowed a cap of 10 cases per day, and is expected to submit detailed reports, following the procedure as referred in Rule 26 of Family Courts (Kerala) Rules, 1989 while holding the counselling session.

Submission of memo with list of connected cases

The ex parte cases, uncontested cases are expected to be listed immediately before court

The courts are expected to classify cases for counselling – indicatively - suits or proceedings filed for decrees of nullity, dissolution of marriages, judicial separation, restitution of conjugal rights, maintenance, guardianship, custody and access to minors are to be referred for counselling, unless the Court deems it fit to refer other cases

Courts are to similarly list cases fit for mediation – indicatively - proceedings for declaration as to validity of marriage, property, injunction and legitimacy of a person etc,

If counselling fails parties are to be referred for mediation

Where mediation fails, all connected cases wherever possible are to be consolidated and disposed of together by the Court.

CMO must fix a timeframe in accordance with the case flow management rules, and all the cases be disposed within specified time

"However, taking note of huge pendency of cases, we permit the Family Courts to fix date and period for disposal of freshly instituted proceedings after reckoning the period required for disposal of the pending matters.", the Court stated.

Step 2

The Court pointed out that judicial time is wasted in roll calls. Therefore, the CMO has been authorised to deal with routine matters regarding posting, reference to mediation, counselling etc., The Family Courts, in normal circumstances, are directed to only list the following matters namely: i. Execution proceedings. ii. Interlocutory applications where urgent orders are required.iii. Cases listed for trial and hearing in the special list.

The Presiding Officer instructed to endeavour persuading parties to arrive at a settlement. If this fails, the trial would progress on a day-to-day basis. In this respect, the Presiding Officer is to interacts with the parties in the Chambers before the commencement of trial or at least during the course of the trial.

Special List System in Family Courts:

The Family Courts shall implement the special list system followed in the civil courts. Cases which are ripe for trial shall be included in the list in accordance with the seniority as on the date of institution of the case.

Execution: Family Courts shall make every endeavour to dispose execution petition if there is no stay from superior courts, as per time fixed in the Case Flow Management Rules.

Execution of Maintenance Order, Criminal Execution Petitions are to be resolved as expeditiously as possible

Additionally, the Court has directed Family Courts to instruct parties to furnish bank details so that maintenance can be paid through bank accounts

Each Family Court is required to appoint Nodal Officers for Execution of Warrants

Interim custody of children:

The concern of the court shall be the best interest and the welfare of the child. At the first instance, before considering the prayer for interim custody, the Presiding Officers shall interact with the parties and the child, if needed. If the Family Courts feels that familiarization of the child with a parent is required, it shall pass orders to ensure that the child is familiarized with the parent who is denied custody till final adjudication of the matter. All interim applications within four weeks after appearance of parties. If not, the Court directs the recordings of specific reasons.

Evidence Collection:

- Appointment of Advocate Commissioner to record oral evidence. If Court performs task of recording evidence, only memorandum of substance is to be drawn up to avoid wastage of time. Open to Court to record evidence of persons through affidavit.

- Video Conferencing may be resorted to collect evidence

- Joint Trial of all cases whenever possible

Step 3

All pending matters to be referred to mediation immediately, where not mentioned so far. Others shall be listed only in accordance with seniority

Lok Adalats to settle pending disputes ripe for trial o at least quarterly basis

Advanced Hearing permitted if party moves application for justifiable/valid reason. Should move court at first instance. Application should be disposed of within 2 weeks. High Court need not entertain original petitions for early disposal unless parties approach the Family Court at the first instance.

Cases involving Senior Citizens have to be disposed within an outer limit of six month of appearance of parties.

Directing Family Courts across the state to implement the above directives from June 1, 2021, the Court disposed of the petitions.

Additionally, the courts have been instructed to table compliance reports before the Registrar (District Judiciary) by December 31 this year.

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