Del HC | Family Judge is supposed to proactively engage with parties and act as facilitator, mediator: HC discussed role of and expectations from a Family Judge

Delhi High Court: Yashwant Varma, J., delved into the subject of the role of a Family Judge while deciding petitions which come before him/her. The High Court in the instant petition directed the Family Court to consider the petition filed for maintenance under Section 24 of the Hindu Marriage Act.

Background

Present petition was preferred challenging the decision of the Family Court.

First Order of the lower court had accorded visitation rights to the respondent, the second order provided for the system of the father being able to communicate with the child via a video call.

The Court was informed that on account of a medical affliction, the respondent was not in a position to take advantage of the rights of visitation physically and that the ends of justice would thus warrant the system of video calls being continued to enable the father to continue interaction with the child and thus participate in his upbringing.

In view of the above two orders, the Court had provided for fixation of an interim maintenance to be paid at a rate of Rs 15,000 and on one occasion payment of an additional sum of Rs 10,000 was also directed.

Question for Consideration

Validity of two orders passed by the Family Judge and whether the issue of interim maintenance or otherwise is liable to be decided by the High Court in writ petition even before parties have had the liberty and the occasion to lead appropriate evidence in order to enable the Family Judge to arrive at what would be a just maintenance which would be payable.

Analysis, Law and Decision

With regard to the latter question as stated above, Court opined that the principal jurisdiction with regard to the above stood conferred on the family judge.

It is the primary responsibility and function of the Family Judge to consider and decide as to what would constitute a fair maintenance, interim or otherwise, which should be fixed for the upkeep and upbringing of the minor child.

Whether Family Judge was justified in law in refusing to take up the application under Section 24 of the Act in the absence of a written statement filed.

Court noted that the family judge failed to assign any valid reason or allude to any circumstance which may have impeded its ability and authority to decide the said issue irrespective of whether a written statement had been filed or not.

A written statement, as a foundational precept, is a pleading dealing with the merits of the dispute. The insistence on the filing of a written statement and an application for maintenance being taken up for consideration only thereafter cannot possibly be recognized to be an inviolable rule.

Petitioner’s assertion was that she had no source of income and that she was facing financial constraints to look after the needs of the minor. It is not the case of the respondent that he was contributing to the expenses required for the wellbeing of the minor prior to the intervention of this Court.

Bench stated that the respondent failed to weigh into consideration that he too is a parent and thus obliged in law to contribute equally to meet the needs of the child.

Role of Family Judge

The Family Judge is supposed to perform a special and unique role under the Act. That Court, unlike others in the hierarchy of the judicial system does not merely preside over adversarial litigation. It also has to proactively engage with parties and act as a facilitator and mediator.

the provisions of Order VIII Rule 1 of the Civil Procedure Code are liable to be recognised as operating in absolute terms only where a particular statute may provide for consequences of a failure to adhere to the time frame prescribed for filing of a written statement.

As per the decision of Nidhi Banga v. Mohinder Bir Singh, 2014 SCC OnLine Del 7628, establishes that the Court essentially reiterated the underlying importance of Section 24 and of the obligation placed upon the Family Court to determine the payment of maintenance.

Family Court has failed to record even rudimentary reasons in support of its ultimate decision to defer decision on the application under Section 24 in the absence of a written statement being filed.

Court opined that the impugned orders would merit being set aside and the matter being remitted to the Family Judge who may take up the application for grant of interim maintenance as made under Section 24 and dispose of the same in accordance with law and upon due consideration of all objections that may be taken and evidences led by respective parties.

The ends of justice would also warrant the interim arrangement as made out by this Court and reflected in the above two orders of family court to be continued subject to following conditions:

1. While the respondent would continue to pay interim maintenance of Rs 15,000/- as was fixed by this Court in its initial order of 2nd February, 2021, since presently, the respondent is unable to exercise the rights of visitation physically, the arrangement of an interactive session being put in place via a video call on a daily basis is liable to be continued.
2. The Court further reserves the right of the respondent to reassert his right of physical visitation as and when his medical condition does so permit.

Hence, the above petition stands allowed and the matter shall stand remitted to the concerned principal Judge who shall take up the application as made by the petitioner under Section 24 for consideration. [Esha Dhir v. Sparsh Dhir, 2021 SCC OnLine Del 5163, decided on 29-11-2021]

Advocates before the Court: