Family Court Does Not Have Plenary Powers : Supreme Court

KEY TAKEAWAYS

• The case in question was a guardianship petition wherein no proper notice was served to the husband by the family court and an order was passed without his knowledge.
• In a recent judgement the Supreme court pointed out that the family court does not have plenary powers.
• The family court of Patiala in one of the cases showed non compliance with the prescribed mandatory procedure and also with the principles of natural justice.
• Therefore, the apex court set aside the order of the family court and ordered for a fresh adjudication of the matter.

BACKGROUND DETAILS

• The case in reference is Aman Lohia v. Kiran Lohia [TC(C) 25 of 2021]
• An appeal was made before the Supreme Court challenging the order of the family court which granted the custody of the child to the appellant’s wife after concluding that the husband had ‘abandoned the petition’.
• The appellant husband filed a guardianship petition in the family court that he had the custody of his minor child and sought himself to be declared as the guardian of the child.
• The respondent mother filed an application contending herself to be the sole guardian of the minor child.
• Thereby a notice was thus issued to the appellant to appear for hearing on September 16, 2019 but since the appellant didn’t appear the matter for hearing was posted on September 19, 2019.

FURTHER DETAILS

• Meanwhile the respondent wife filed an application to transpose her as the petitioner in the guardianship petition.
• Neither a transposition notice was served to the appellant husband nor was he given any notice by the family court about the hearing of the said application.
• Eventually on September 21, 2019 the petition was heard without the knowledge of the appellant husband as he wasn’t given any prior intimation about the same nor was he represented by any counsel as the counsel was discharged from the case.
• The family court on its own ruled out that the appellant husband had ‘abandoned the petition’ and transposed the wife as the petitioner in the main guardianship petition.
• Also the main guardianship petition was heard on the case day and a judgement was passed that the custody of the child should be given to the wife and not the husband as that would not be advisable.

SUPREME COURT FINDINGS & ORDER

In its judgment the 3 judge bench of Supreme court comprising of Justice A.M Khanwilkar, Justice B.R Gavai, Justice Krishna Murari contended and pointed out at the following:

• “The family court is expected to follow a procedure known to law which means a formal pleading filed by both sides, frame issues for determination, record evidences of both the parties and thereafter determine and render a decision by recording reasons”.
• “The family court is also expected to give sufficient time to the parties and an opportunity to present their claim in the form of pleadings before determining of the dispute”.
• It also said that “The abandonment has to express or implied and the circumstances must be so strong and convincing that drawing such an inference becomes inevitable”.

CONCLUSION

• The apex court concluded by making it clear that the family court does not have plenary powers and cannot do away with the mandatory procedural requirements.
• It also set aside the order of the family court and ordered the revival of the guardianship petition and sent the case back to the family court for fresh adjudication