Application of CPC to

the Family Court

Cases
Section 10 of Family Courts Act, 1984
reads as follows:-
(1) subject to the provisions of this act for the time and
the rules, the provisions of the code of civil
procedure 1908 (5 of 1908) and of any other law for
the time being in force shall apply to the suits and
proceedings (other than the suits and proceedings
under chapter IX of the code of criminal
procedure,1973) before a family court and for the
purposes of the said provisions of the code, a family
court shall be deemed to be a civil court and shall
have all the powers of such court.
• Section 10(3)- nothing in sub-section 1 or 2
shall prevent a family court from laying down
its own procedure with a view to arrive at a
settlement in regard of the subject –matter of
the suit or proceedings or at the truth of the
facts alleged by one party and denied by the
same.
Section 7 of the Family Court Act, 1984 States
that a Family Court Shall :-
A). Have an exercise all the jurisdiction exercisable by any District
Court or any subordinate Civil Court under any law for the time
being in force in respect of suit of proceedings of the nature
referred to in the explanation, and
B). Be deemed for the purpose of excursing such jurisdiction under
such law, to be a District Court or such subordinate Civil Court for
the area to which the jurisdiction of the Family Court extents.
Explanation:- The suits and proceedings referred to in this sub section
are of the following nature namely :
A). A suit or proceedings between the parties to a marriage for a
decree of nullity of marriage or restitution of conjugal rights or
judicial separation or dissolutions of marriage.
B). A suit or proceeding for a declaration as to the validity of
marriage or as to the matrimonial status of any person.
C). A suit are proceeding between the parties to a marriage with
respect to the property of the parties of either of them.
D). A suit or proceeding for an order and injunction in
circumstance arising out of her marital relationship.
E). A suit or proceeding for the declaration as to the legitimacy
of any person.
F). A suit or proceeding for maintenance.
G). A suit or proceeding in relation to the guardianship of or
custody of or access to any minor.
Section 18 of Family Court Act sub section 1 of
Family Court Act provides that:-
A decree or order (other than an order under
chapter 9 of the Code of Criminal Procedure
passed by the Family Court shall have the
same force an effect as a decree or order of a
Civil Court and shall be executed in the same
manner provided as is prescribed by the Code
of Civil Procedure for the execution of decrees
and orders.
Section 20 Act to have overriding effect:-
• The provisions of this act shall have effect not with
standing anything inconsistent with any other law for
the time being enforce or in any instrument having
effect by virtue of any law other than this act.
• The Family Court Act, 1984 has an overriding effect
overall other loss not with standing anything
inconsistent contain in such laws.
• Amina Ali Akbar Vs. B. Ali Akbar, Madras High Court, the brief act of the
instant case is that the petitioner who is the wife filed a suit in the
Family Court to declare herself as a wife of the respondent/ defendant
husband and to direct the defendant to restitute the conjugal rights
with the plaintiff and for other reliefs. The defendant husband filed the
written statement under order 7 rule 11 of the Code of Civil Procedure
for the rejection of the plaint. The Wife filed her preliminary objection
that the family court lack jurisdiction to entertain an application filed
under order 7 rule 11 CPC as it is in violation of the Family Courts Act,
1984.
• It was held that the Family Courts are vested with the powers as that
of the civil court and it is for the Family Court to decide any application
filed under code of civil procedure including the application filed under
order 7 Rule 11 CPC. A conjunctive reading of section 10 and section
18(1) of the Family Court Act, 1984 makes it clear that the code of civil
procedure is applicable to the suits or proceedings before the family
court.
Aman Lodha v. Kiran Lohiya,

• In the present case, the three Judges Bench of the Hon’ble

Supreme Court has held that indubitably the Family court
obliged to enquire into the matter as per the procedure
prescribed by law. The family courts have no plenary powers
to do away with the mandatory procedural requirements in
particular, which guarantee fairness and transparency in the
process to be followed and for adjudication of claims of both
sides. The nature of enquiry before the family court is, in
deed, adjudicatory. It is obliged, the rival claims of parties and
while doing so it must adder to the norms prescribed by the
statute in that regard and also the foundational principle of
fairness of procedure and natural justice.
Binni v. Sundaran, AIR 2008 KER 84
• In this it was held that in dealing with disputes concerning the
family, the court ought to adopt an approach radically
different from that adopted in ordinary civil proceedings. It
should make reasonable efforts at settlement before the
commencement of the child. During the stage, the
proceedings will be informal and the reside rules of procedure
shall not apply.
• The family court is obliged to make ever endeavor in the first
instance to assist and persuade the parties to arrive at a
settlement in respect of the subject matter of the
proceedings.
• Section 13 of the act provides that a legal practicener shall not
be entitled to represent the parties as a matter of right.
• Order 32XXXII-A was inserted by CPC amendment act 104
of 1976 which provides:- The provision of this order shall
apply to suits or proceedings relating to maters concerning
the family.
• In Manju Singh v. Ajay Veer Singh, the Hon’ble Supreme
Court has held that if an endeavor for reconciliation is not
made, the order would be illegal.
• Section 23(2) of the Family Court Act gives a direction to
the Family Court that before proceedings to grant any relief
under the act, it shall be duty to endeavor to bring about
reconciliation between the parties. Even the filing of the
written statement of the opposite party should not be
insisted unless reasonable opportunity for reconciliation is
granted to the parties.
R. S. Kohli v. Tahjeeb Kohli
• The brief facts of this case are that the wife filed a case for the restitution
of her conjugal rights and an amount of three lakhs by way of monthly
maintenance for herself and her son.
• Later on after two years she filed an application for amendment under
order 6 rule 17 wide which she sought for the dissolution of her marriage
with her husband. The Family Court allowed the said amendment on the
ground that ‘since the matter has not reached the trial stage, in order to
prevent multiplicity and to avoid to for the delay the application deserved
to be allowed.’
• It was held that an application filed under order 6 rule 17 seeking
amendment must be government by the factors/principles to be kept in
mind by a civil court while granting or refusing the amendment. The
power must be exercise judicially. Merely because it would result in
multiplicity of litigation, can be no ground to grant amendment praying a
diagonally opposite relief, in the main proceedings as the court must be
cautious while allowing the applicant for amendment and shall
discouraged worthless and/or dishonest amendment.
• The relief sought by amendment is exclusive and
completely extrinsic and alien to the one which was
sought in the pleadings in the original petition.
• The amendment, by no stretch of imagination can be
said to be imperative for proper and effective
adjudication of the existing petition seeking restitution
of conjugal rights and no prejudice is cause to the
petitioner if the amendment is disallowed as it is
always open for the petition to institute a fresh petition
for the dissolution of marriage .