The Supreme Court recently ruled that a family court does not have plenary powers to eliminate the necessary procedural requirements which ensures fairness and transparency for adjudication of claims.
The apex court held that a family court is duty bound to solve the rival claims of the parties and while doing so, it ought to adhere to the norms prescribed by the statute.
The court additionally added that for doing this, the Family Court is expected to present a notice to the respective parties and provide them with decent time and opportunity to present their claim.
The judgment was delivered by a three-judge Bench in an appeal by a father which challenged an order of a family court which granted custody of the child to his wife after observing that the father had abandoned the petition.
A guardianship petition was filed by the father under Section 7 of the Guardians and Wards Act, 18905 read with Section 7(g) of the Family Courts Act, 1984 on the assertion that the minor child was in his custody at the relevant time. The appellant wanted himself to be declared guardian of the child.
The respondent wife also filed an application under Section 151 of the CPC for declaring her to be the sole and absolute guardian of the minor child.
The respondent filed another application under Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of the CPC to transpose her as the petitioner in the guardianship petition.
No notice of the transposition application was ever served on the appellant nor was he given notice regarding hearing of the said application before the Court, despite the very fact that his counsel had been discharged from the case and the appellant was not represented by any other counsel.
The family court ruled that the appellant had abandoned the petition and transferred the wife as the petitioner in the main guardianship petition.
In the main guardianship petition also, it was decided that it was not advisable to give the guardianship of the minor to the appellant.
The court ruled that the father had dis-entitled himself to be declared as guardian of the minor child and for the best interest of the child, the mother would be the sole and absolute guardian and custodian of the minor.
The Supreme Court took exception to the procedure adopted by the family court to decide the transposition application and guardianship petition.
On the family court’s finding that the appellant had abandoned proceedings, the top court said that here will be no legal presumption about the factum of abandonment of proceedings.
The apex court stated that the family court is deemed to be a civil court having all powers of such court. Consequently, it has to keep in mind principles expressed in numerous statutes.
Therefore, the apex court put aside the family court order, ordered revival of the guardianship petition and remanded it back to the family court for fresh adjudication.