The Patna High Court observed that the mandatory provision under the Family Courts Act and rules are violated if there are no Counsellors appointed by the Government and attached with the Family Courts and the cases are not sent in conciliation.

The Petitioner (Husband) filed a revision petition against the order of Family Court to pay maintenance of Rs 12,000/- to wife on the grounds that the Family Court did not send the case record in Conciliation.

The Bench of Justice Bibek Chaudhuri observed, “It is needless to say that compliance of Section 9 of Family Courts Act, 1984 and the aforementioned Rules are obligated. If there are no Counsellors appointed by the Government and attached with the Family Courts and the cases are not sent in conciliation, the mandatory provision under the Family Courts Act and rules made thereunder are violated. In violation of the said rules, adversarial justice delivery system cannot be adopted. In the instant case, it is clear from the copy of the order-sheet which has been filed by the learned Advocate for the opposite party no. 2 that the learned Principal Judge, Family Court did not send the case record in conciliation.”

Advocate Shama Sinha represented the Petitioner, while Advocate Pawan Kumar Chaurasia represented the Respondents.

Case Brief

The Husband contended the main purpose and object of the Family Courts Act, 1984 was to take an endeavour to dispose of the matrimonial discord by process of conciliation and mediation in order to save the family and not by delivery of judgment to severe the family.

Further, the husband relied on Section 9 of the Family Courts Act, 1984, arguing that a mandatory duty is cast on the Family Court to make endeavour to assist and persuade the parties in arriving at a settlement in respect of subject matter of the dispute. Thereafter, the husband highlighted Rules 10 and 11 of the Bihar Family Courts Rules, 2011, which provides for settlement through counselling and duties and functions of Counsellors.

The contention of the husband was that no such provision was followed by the Family Court. The husband further submitted that disposal of a case under Section 125 of the Cr.P.C without taking recourse to conciliation was illegal.

While the wife contended that the trial court followed the conciliation procedure as directed by the Family Courts Act, 1984 and for such technical ground and otherwise good order cannot be set aside.

Court’s Analysis

The Patna High Court found that there was no averment by either of the parties as to whether Counsellors were appointed in the Family Courts for conciliation as per Rule 10 of the Bihar Family Courts Rules, 2011.

“This Court also does not know if Rule 11 of the Family Court (Patna High Court) Rules, 2000 is being followed for the procedure for arriving at settlement”, the Court added.

The Court observed that the compliance of Section 9 of Family Courts Act, 1984 and the aforementioned Rules are obligatory. The Court emphasised that adversarial justice delivery system cannot be adopted when Family Courts Act and rules are violated.

“In the instant case, it is clear from the copy of the order-sheet which has been filed by the learned Advocate for the opposite party no. 2 that the learned Principal Judge, Family Court did not send the case record in conciliation”, the Court said.

The Court directed to the Registrar General of the High Court to collate a report as to whether Counsellors have been appointed in Family Courts in the State of Bihar and after the said report, accordingly, the final order in the instant revision would be passed.

However, the Court noted that the wife was living at her paternal home under the mercy of her brothers. Thus, the Court directed the husband to pay Rs. 8,000/- per month to the wife as an interim measure.

In the meantime, the Court has called for the records of the lower court.

Cause Title: Abdul Rehan Khan @ Abdul Raihan Khan V. The State of Bihar & Anr.

Appearance:

Petitioner: Advocate Shama Sinha

Respondents: Advocate Pawan Kumar Chaurasia and Sanjay Kumar Ghosarvey

Click here to read/download Order


Patna High CourtJustice Bibek Chaudhuri

Pridhi Chopra

    Pridhi Chopra was earlier practicing as an Advocate in Delhi. She pursued B.A. (H) English from Gargi College, University of Delhi, and subsequently pursued a degree in Law.