The proceedings of the Family Court is not expected to be inquisitorial and hence is not restrained from conducting any enquiry related to truth. In the case of Nisha Haneefa v Abdul Latheef, the Kerala High Court has held as follows -
"4. A combined reading of Sections 9, 10 and 14 would clearly bring out the point that the Family Court is not the mirror of an ordinary Civil Court. The powers of the Family Court can be summarized as follows:
(i) Adjudicative power following the rules of procedure as applicable under the adversarial system.
(ii) Proactive role for settlement of disputes between the parties.
(iii) Inquisitorial power to enquire into the truth of the matter.
5. The above enumerated powers are only for the Family Court. That distinguishes it from an ordinary Civil Court. More interestingly, it is to be noted that as reflected from Section 10(3), the Family Court is given the power to lay down its own procedure with a view to arrive at settlement, or to enquire into the truth of the facts alleged. The power to choose the mode of procedure itself sufficiently indicates that the Family Court is not bound by any strictness of procedure of law as referred in the Code of Civil Procedure, the Indian Evidence Act, Criminal Procedure Code etc. What is essential in a dispute before the Family Court is that the Family Court is only to devise procedure for fair conclusion of the proceedings. If the Family Court is able to adhere to the “fairness”, the decision or order of the Family Court cannot be questioned in a higher Court. The Family Court is given complete freedom in devising fair procedure for speedy resolution of disputes before the said Court. 6. The role of the presiding officer in the Family Court needs to be stressed herein. As already adverted to, in all matters, what is required by the Family Court is a fair approach in dealing with the cases before it. In many of the matters like custody, maintenance, matrimonial status etc., the responsibility of the Court is to find out the truth. The focus of the enquiry is to be on the objectives to be secured rather than focusing on the subjective element of the dispute. The very purpose of entrusting family disputes to the Family Court from ordinary Civil Court is to focus not on the rights and obligations of the disputants but on the interest of the parties and welfare of the subject of the dispute. It is also to be remembered that the disputes amenable before the Family Court sometimes may require to follow the rules of adversarial litigation. But that does not mean that the Family Court Judge is restrained from conducting enquiry related to the truth as, in an inquisitorial model. To find out the truth, the Family Court does not require the consent of the parties. If fairness is reflected in any of the approaches, such an approach is clothed with legal protection.
7. The Delhi High Court in Kusum Sharma v. Mahinder kumar Sharma [2015 SCC OnLine Del 6793] considered the power of the Family Court to elicit truth and observed that it is the duty of the Court to ascertain the truth regarding the true income of the parties and to pass appropriate orders in accordance with merits. It is further stated that truth is the foundation of justice; dispensation of justice based on truth is an essential feature of the justice delivery system. No doubt, our Family Court has the power to elicit and find out truth, and the responsibility lies on the Family Court Judge to find out truth, adhering to fair principles,"
As such there is a fair chance that the appeal could be successful, if the decision had been on purely technical grounds.
