Procedure, Settlement, Evidence and the Right to a Lawyer

The section follows the split jurisdiction created by section 7. Civil procedure for the civil work, criminal procedure for the summary maintenance work, and in both a power to depart from the code for two named purposes.

Sub-section (3) is worth quoting. The two purposes are settlement and truth, and they are the two things ordinary procedure is worst at in a family case.

Section 11: proceedings in camera

In every suit or proceeding to which the Act applies, the proceedings may be held in camera if the Family Court so desires, and shall be so held if either party so desires.

A neat formula worth learning as a contrast. Under the Hindu Marriage Act and the Special Marriage Act the hearing is always in camera. Under the Domestic Violence Act it is in camera only if the circumstances warrant it and a party asks. Here it is in camera at the option of either party, and otherwise at the court's own discretion.

Section 12: medical and welfare experts

In every suit or proceeding it is open to a Family Court to secure the services of a medical expert, or of such person, preferably a woman where available, whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family, for the purpose of assisting the Court in discharging its functions.

The preference for a woman appears here as it does in section 4(4)(b) for judges, and it is one of the provisions MU's phrase "administration of gender justice" is pointing at.

Section 13: the right to legal representation

Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner.

The proviso: if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.

What the section actually does

It removes an entitlement; it does not impose a prohibition. A party has no right to counsel. The court may still permit representation, and in practice courts commonly do.

The reason is the object of the Act. Section 9 requires the court to attempt settlement, and the drafters took the view that lawyers make conciliation harder and family litigation more adversarial and more expensive.

The proviso points the other way, and it is the only mention of a lawyer in the section that is positive: the court itself may bring in a legal expert as amicus curiae where justice requires it. Note the difference. An amicus assists the court; he does not represent a party.

Why the section is criticised, and how to write it

The criticism is worth stating carefully because it is the standard essay.

The case for section 13. A conciliation forum works better without adversarial advocacy. Lawyers add cost, and cost falls hardest on the party with less money, who is usually the wife.

The case against. The rules of a matrimonial case are not simple, and a party facing an opponent who has been allowed representation, or who is himself a lawyer, is at a serious disadvantage. Article 22(1) of the Constitution guarantees the right to be defended by a legal practitioner of one's choice, though its terms are directed at arrest and criminal detention rather than civil proceedings. And the Family Court exercises criminal jurisdiction under section 7(2), where the stakes for the respondent include an order enforceable by the criminal process.

How courts have dealt with it in practice. Because the section removes only the entitlement, courts have generally permitted representation where the case is complex or one side is represented, and the discretion is exercised to keep the parties on an equal footing. This book states no decision for that proposition, because none has been read for it. What can safely be written is what section 13 says, that it removes an entitlement and not the possibility, and that the proviso allows an amicus.

Sections 14 to 16: the evidence provisions

These three, with section 12, are the group MU is most likely to set together.

Section 14: the Evidence Act is relaxed

A Family Court may receive as evidence any report, statement, document, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act 1872.

This is a remarkable provision. The ordinary law of evidence is a set of exclusionary rules, and section 14 disapplies them where the material would help. A counsellor's report, a school record, a letter, a medical note may all go in.

The Indian Evidence Act 1872 has been replaced by the Bharatiya Sakshya Adhiniyam 2023. Section 14 still refers to the 1872 Act. The substance is unaffected: the Family Court may receive material the general law of evidence would exclude.

The obvious objection is the obvious one: a court that may receive anything may act on something the other side has had no chance to test. The answer within the Act is that section 14 is permissive and turns on the court's opinion that the material will assist it, and that section 17 requires the judgment to give reasons.

Section 15: no verbatim record

In suits or proceedings before a Family Court it shall not be necessary to record the evidence of witnesses at length; but the Judge shall, as the examination of each witness proceeds, record or cause to be recorded a memorandum of the substance of what the witness deposes, which shall be signed by the witness and the Judge and shall form part of the record.

This is about speed. A verbatim deposition takes days; a signed memorandum of substance takes an afternoon. The signature of the witness is the safeguard.

Section 16: formal evidence on affidavit

Sub-section (1). The evidence of any person, where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence.

Sub-section (2). The Family Court may if it thinks fit, and shall on the application of any of the parties, summon and examine any such person as to the facts contained in his affidavit.

The balance is in sub-section (2), and the two verbs are the point. The court may call the deponent on its own motion; it shall call him if a party asks. So formal evidence goes in on paper, and the right to cross-examine survives on demand.

A worked example

A wife files for divorce in a Family Court. She wants her advocate to appear. The husband denies the marriage and wants a full trial. There is a question about his mental health, and a long history of quarrels neither wants read out in open court.

What must the court do first? Section 9(1): in every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement, and for that purpose it may follow the procedure the High Court prescribes. Section 9(2): if at any stage there is a reasonable possibility of a settlement, the court may adjourn the proceedings for such period as it thinks fit, and the proviso exempts that power from the limits on adjournments in the Code of Civil Procedure.

Which procedure applies? Section 10(1): the Code of Civil Procedure to suits and proceedings other than Chapter IX proceedings; section 10(2): the Code of Criminal Procedure to Chapter IX proceedings. Section 10(3): nothing in those sub-sections prevents a Family Court from laying down its own procedure with a view to arriving at a settlement or truly and effectually deciding the dispute.

Is the hearing open? Section 11: the proceedings may be held in camera if the Family Court so desires, and shall be so held if either party so desires.

The mental health question. Section 12: the court may, in any suit or proceeding, secure the services of a medical expert or such person, preferably a woman where available, professionally engaged in promoting the welfare of the family, as it thinks fit.

Can her advocate appear? Section 13: notwithstanding anything in any law, no party shall be entitled, as of right, to be represented by a legal practitioner; but the court may, in the interest of justice, seek the assistance of a legal expert as amicus curiae. The entitlement is removed; representation is not prohibited.

Will the whole history be proved formally? Section 14: a Family Court may receive as evidence any report, statement, document, information or matter that may in its opinion assist it to deal effectually with a dispute, whether or not it would be otherwise relevant or admissible under the Indian Evidence Act. Section 15: it is not necessary to record the evidence of witnesses at length; the Judge records or causes to be recorded a memorandum of the substance of what the witness deposes, signed by the Judge and forming part of the record. Section 16: formal evidence may be given by affidavit, and the court may summon and examine the deponent as to the facts contained in it if a party so applies.

What it does NOT mean

Settlement is not optional. Section 9 makes the endeavour a duty, in the first instance, where consistent with the nature of the case.

The adjournment power is not subject to the ordinary limits. The proviso exempts it from the Code's restrictions on adjournments.

Section 10 does not give the court a free hand. It applies the two Codes, and lets the court depart only for settlement or for truly and effectually deciding the dispute.

In camera is not at the court's option alone. It shall be held in camera if either party so desires.

Section 13 does not prohibit lawyers. It removes the entitlement as of right, and allows an amicus curiae in the interest of justice.

Section 14 does not abolish the law of evidence. It lets in material the court thinks will assist, whether or not otherwise relevant or admissible.

Section 15 does not abolish the record. It replaces the verbatim record with a memorandum of the substance, signed by the Judge.

Section 16 does not shut out cross-examination. The deponent may be summoned and examined if a party applies.

Quick revision

• s.9: a duty to endeavour, in the first instance, to assist and persuade the parties to a settlement, following the High Court's procedure; power to adjourn for a reasonable possibility of settlement, free of the Code's limits on adjournments.
• s.10: the Code of Civil Procedure for civil work, the Code of Criminal Procedure for Chapter IX maintenance, and a power to lay down its own procedure for settlement or for truly and effectually deciding the dispute.
• s.11: proceedings in camera if the court desires and shall be so held if either party desires.
• s.12: the assistance of a medical expert or a person, preferably a woman, professionally engaged in promoting family welfare.
• s.13: no party is entitled as of right to be represented by a legal practitioner; the court may seek the assistance of a legal expert as amicus curiae in the interest of justice.
• s.14: evidence may be received whether or not relevant or admissible under the Evidence Act, if it will assist. s.15: a memorandum of the substance of a witness's evidence instead of a verbatim record. s.16: formal evidence on affidavit, the deponent being summoned on a party's application.

Test yourself

1. What is the Family Court's duty as to settlement? In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistently with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding.

2. Which procedure does a Family Court follow? The Code of Civil Procedure for suits and proceedings other than those under Chapter IX of the Code of Criminal Procedure, and that Code for Chapter IX proceedings; but the court may lay down its own procedure with a view to arriving at a settlement or at the truth of the facts alleged.

3. Has a party a right to be represented by a lawyer? No. Section 13 provides that notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner, though the court may in the interest of justice seek the assistance of a legal expert as amicus curiae.

4. How does the Act change the law of evidence? Section 14 allows the court to receive as evidence any report, statement, document, information or matter that may in its opinion assist it to deal effectually with a dispute, whether or not it would be otherwise relevant or admissible under the Indian Evidence Act. Section 15 dispenses with a verbatim record in favour of a memorandum of the substance of the evidence, and section 16 allows formal evidence on affidavit, subject to the deponent being summoned on a party's application.