In
exercise of the powers conferred by section 21 of the Family Courts Act, 1984
(No. 66 of 1984), and all enabling provisions in that behalf, the Honourable
the Chief Justice and Judges hereby make and prescribe the following Rules for
the Family Courts in the State of Maharashtra: These
Rules may be called the Family Courts (Court) Rules, 1988. These
Rules shall come into force on the date of publication in the Official Gazette. These
Rules shall apply to the Family Courts, established in the State of Maharashtra
under section 3 of the Family Courts Act, 1984. In these
Rules, unless the context otherwise requires,- (a) "Act"
means the Family Courts Act, 1984; (b) "Centre"
means a Counselling Centre; (c) "Court"
means the Family Court established under section 3 of the Act; (d) "Petition"
shall include an application under Chapter IX of the Criminal Procedure Code
unless the subject matter or context requires otherwise; (e) "Principal
Counselor" means the principal counselor appointed by the High Court.
Where principal counselor is not appointed, it shall include counselor or
counselors as the case may be; (f) "Family
Court Rules" means Rules framed by the Government of Maharashtra in
consultation with the High Court under section 23 read with sections 5 and 6 of
the Family Courts Act, 1984. Institution
of Proceedings and Service All
proceedings instituted before a Family Court shall be by way of a Petition. In
respect of applications under Chapter IX of the Criminal Procedure Code,
however the provisions of that Code will apply. A
petition or any other application shall be filed in duplicate. One copy of such
petition or application shall be forwarded by the Registrar of the Family Court
to the Principal Counselor forthwith. In all
matters other than those under Chapter IX of the Criminal Procedure Code the
Writ of Summons to appear and answer shall be in form No. 1 as set out in the
appendix with such variations as the circumstances of the case may require. [1]["The
name and address of a party and of the Advocate if any appearing for a party
shall be stated in every Writ of Summons. Witness Summons, interim application,
Notice, Warrant and every process of the Court issued at the instance of such
party or Advocate, if any".] All Writs
of Summons, rules, Orders, Warrants and other mandatory processes shall be
sealed with the seal of the Court and shall be signed by the Registrar adding
thereto the date of signing. The seal
of the Court shall not be affixed to any Writ of Summons, Rule, Order, Warrant
of other mandatory process, unless the same is signed by an officer of the
Court to be called the sealer and unless the name of the party or his Advocate
on record is subscribed thereto. The date of the sealing shall be inserted
below the signature of the sealer. Unless
otherwise ordered, the Writ of Summons shall be made returnable, three weeks
after the date of the filing of the petition, if the respondent resides within
the local limits of the Court, and five weeks after the date of the filing of
the petition, if the respondent resides outside the said limits. The returnable
date shall be fixed on the day of the week fixed for giving directions as
provided in Rules 23 and 24. A Writ of
Summons shall be served in the manner prescribed in the Code of Civil Procedure
save and except in proceedings under Chapter IX of the Criminal Procedure Code
where the provisions of that Code will apply. A Writ of Summons in proceedings
under Chapter IX of the Criminal Procedure Code may also be served by
registered post with acknowledgement due. No Writ
of Summons or other process shall be served on Saturdays, Sundays or on
Holidays notified by the Court, except by leave of the Court. [2][No Writ
of Summons or other process shall be served on that party or at the office of
an Advocate if any after sunset on week days and 1-30 p.m. on Saturday.] A Writ of
Summons need not be served on a respondent personally, if his Advocate
undertakes in writing to accept service and to file a Vakalatnama. An Advocate
filing his Vakalatnama, however, shall not be entitled to appear in court
and/or plead his client's case in Court without obtaining the leave of the
Court as prescribed under Rule 37. Where an
Advocate undertakes in writing to accept service and to file a Vakalatnama on
behalf of more respondent than one, it shall be sufficient to serve only one
Writ of Summons on the said advocate on behalf of his clients. Any
respondent or his Advocate applying to the petitioner or his Advocate on record
for a copy of the petition and exhibits annexed thereto shall be furnished with
the same but where several of the respondents are represented by the same
advocate, it shall be sufficient to supply one copy of the petition and
exhibits to such Advocate: Provided
that if the application is made after the passing of a decree in a petition,
such copies need only be furnished to the respondent or his advocate on payment
of the copying charges. Whenever
upon the further amendment of any Writ of Summons the Registrar shall be of
opinion that a fresh Writ of Summons should be substituted, he shall direct it
to be done and such fresh Writ of Summons shall be prepared by the Petitioner
or his Advocate on record and be examined, signed and sealed by the proper
Officer. Unless
the Court shall otherwise order, the service of a Summons to appear and answer
shall be proved by the Vakalatnama having been filed or when no Vakalatnama has
been filed, by evidence showing that the Summons was served in the manner
provided by the Code of Civil Procedure. Such proof shall ordinarily be by the
affidavit of the bailiff and (as to such matters as the bailiff cannot speak to
of his knowledge) of the person who attended the bailiff for the purpose of
identification at the time of service or of such other person or persons as can
speak to the identity of the person served or to other matters necessary to be
proved in respect of the service. When the
Summons has been served through another Court, the service may be proved by an
affidavit of Process served sworn before an Officer of the Court through which
the service was effected. Application
for substituted service of the Writ of Summons shall be made to the Registrar.
The application shall be supported by an affidavit, and in the case of service
through another Court, by the affidavit of the Officer who attempted to make
the service, and of such other person or persons as may have accompanied him
for the purpose of pointing out the party to be served stating when, where and
how such service was attempted to be made. If the
Writ of Summons is not served within six months from the date of the filing of
the petition, the Registrar shall unless good cause is shown, place the
petition on board for dismissal. The Registrar shall notify such petitions on
his notice board one week before they are place on the board for dismissal. Proceedings
in Court On the
returnable date of the Summons, the petition shall be placed for directions
before a Judge of the Family Court to whom this work may be assigned by the
Principal Judge of the Family Court. One day
in a week shall be designated by the Principal Judge for the giving of such
directions. On the
date fixed for giving directions, the Principal Counselor or such other
counselor designated by him shall attend the Court of the Judge giving
directions. When
giving direction, the Judge shall, in consultation with Principal Counselor or
such other counselor who may be present in Court, direct the parties to attend
a specified counselor for the purpose of counseling. Such
counselor shall be chosen bearing in mind the convenience of the parties, their
special requirements and the area in which the unit to which that counselor is
attached is located. The
procedure before the Counselor, the powers, functions and duties of counselors
and the protection granted to them in the discharge of their duties shall be as
prescribed in the Family Court Rules, 1987. The reports to be submitted by the
counselors to the Family Court shall also be as prescribed in the said Rules. Hearing
of Petitions in Court On the
proceedings before the counselor coming to an end and on the counselor filing a
memorandum in the petition setting out the outcome of the proceedings before
him, the Registrar shall call a meeting of the parties to fix a date of hearing
of the petition. Intimation of such meeting shall be given to the parties by
registered post or personally. At the
meeting so fixed the Registrar shall fix a date of hearing after consulting
both the parties. Registrar
shall also ascertain from the parties the approximate time to be taken by each
party before the Court for the hearing of the matter. On the date of hearing
the time so ascertained shall be kept free for the disposal of the matter. Such
time shall be kept available on the following consecutive working days also if
the matter is likely to take more than a day. In the
event of any party remaining absent at the meeting called by the Registrar, the
Registrar shall fix such date of hearing as he may deem fit. Registrar shall
fix a date at least four weeks after the date of the meeting. On the
date so fixed by the Registrar the petition shall be placed on the board of the
Court for hearing and final disposal. The time allotted to the parties shall
also be indicated on the board. Any party
finding the date fixed by the Registrar unsuitable for any reason may get it altered
by the Registrar after notice to the other side not less than two weeks before
the scheduled date of hearing. The
Registrar shall not ordinarily alter the date when the date has been fixed in
the presence of both the side. The
petition so fixed shall not be adjourned by the Court unless there are
exceptional circumstances justifying such adjournment and unless they are such
as could not have been foreseen when the date of hearing was fixed before the
Registrar. The Court shall record its reasons for adjourning a matter. The Court
may permit the parties to be represented by a lawyer in Court. Such permission
may be granted if the case involves complicated questions of law or fact, if
the Court is of the view that the party in person will not be in a position to
conduct his or her case adequately or for any other reason. The reason for
granting permission shall be recorded in the order. Permission so granted may
be revoked by the Court at any stage of the proceedings if the Court considers
it just and necessary. An
application by a party for being represented by a lawyer in Court shall be made
by such party to the Court after notice to the other side. Such an application
shall be made not less than two weeks prior to the date fixed for hearing of
the petition. Such an
application shall not be entertained after the petition is placed for heading
on the daily board of the Court, unless there are exceptional circumstances
justifying such late application. The Court
may appoint a lawyer to represent independently any minor affected by
litigation before the Court. The Court may give suitable directions regarding
fees to be paid to such a lawyer. The Court
may appoint a lawyer amicus curiae to assist the Court in the discharge of its
duties. [3][Evidence
given before the Court may be tape-recorded.] The Court
shall also prepare a memorandum of substance of what the witness deposes as
prescribed under section 15 of the Family Courts Act, 1984. [4][In the
event of any appeal or revision being before the High Court, a party may within
30 days thereafter apply to the Court for transcription of the tape-recorded
evidence if any. Such transcription shall be supplied to the party concerned on
payment of prescribed fees.] An Order
passed under section 125 of the Code of Criminal Procedure for maintenance
allowance can be executed by the Court by attachment of salary as provided in
section 60 and Order 21 of the Code of Civil Procedure, in addition to the mode
of recovery provided in sub-section (3) of section 125 of the said Code: Provided
that Rules 37 to 40 (both inclusive) of Order 21 of the Code of Civil Procedure
shall not be resorted to. Save as
aforesaid, the provisions of the Code of Civil Procedure or the Code of
Criminal Procedure as the case may be, shall apply to the proceedings before
the Family Court. A
proceeding before the Family Court shall not become invalid by reason only of
non-compliance with any of the procedural requirements prescribed herein. Interim
Applications All
interim applications to the Court shall be separately numbered, as Interim
Applications No. ............................In Petition No. .................... An
interim application maybe made even while the matter is pending before a
counselor. The Court
may ask the counselor to submit an interim report for the purposes of such an
application before deciding an interim application. The Family Court Rules,
1987 relating to reports to be submitted by counselors shall mutatis mutandis
apply to interim reports also. Guardianship All
petitions for guardianship other than applications over which the High Court
has jurisdiction, shall be filed before the Family Court. Every
petition for guardianship, when it is by a person other than the natural parent
or natural guardian of the child shall be accompanied by a Home Study Report of
the person asking for such guardianship and his/her spouse, if any, prepared by
an approved family welfare agency or a suitably trained social worker. A list
of such agencies and/or persons shall be prepared by the Principal Judge and
Principal Counselor in consultation with the High Court. When a
Petition for guardianship is filed by a foreigner the Court may accept a Home
Study Report prepared by a recognised family welfare agency of the country
where the foreigner resides. Every
Petition for guardianship shall be accompanied by (i) Two recommendations
from respectable members of the community. (ii) A Salary
Certificate or statement relating to the annual income of the petitioner and
his financial position. (iii) A Health
Certificate of the petitioner and his/her spouse signed by a medical practitioner
as also a medical report regarding sterility of petitioner and/or spouse. (iv) A Health
Certificate of the child proposed to be taken in Guardianship signed by a
medical practitioner and countersigned by the petitioner. (v) A Child
Study Report of the child proposed to be taken in guardianship together with
photograph of the child. Such report shall be in Form No. 3 prescribed in the
appendix when the child is institutionalised or Court committed. The report
shall be countersigned by the petitioner. (vi) A declaration
from the proposed guardian and his/her spouse if any, expressing their
willingness to take the child in guardianship. When a
Petitioner applying for guardianship is a foreigner, the petition will also be accompanied
by, (i) Permission
from the country where the petitioner resides, for the child to enter the
country; (ii) An
undertaking by a recognised family welfare agency of the country concerned to
supervise the child in the home of the petitioner until the child is legally
adopted. In
granting a petition of a foreigner for guardianship, the Court shall satisfy
itself that the child can be legally adopted by a foreigner under the law of
the country where he/she resides. The Court
may direct a foreign petitioner to give a bond for such amount as it may think
proper for the return of the child to India in the case of any difficulty. While
granting a petition for guardianship, the Court may pass such orders as it may
deem proper for the financial security of the minor. When the
child proposed to be given in guardianship is an abandoned child the Court
shall satisfy itself that the consent of the natural mother was taken at the
time of abandonment of the child or at any time thereafter to the child's being
given in guardianship to another person. The name of the natural mother or
natural father as also the consent letter from natural parent shall be treated
as confidential. Consent letter shall be kept in Court in a sealed cover. When the
child being placed in guardianship is an abandoned child from an institution
for abandoned children, the institution shall file an affidavit setting out the
circumstances under which the child was abandoned. The affidavit shall also set
out whether the institution is agreeable to the child being given in
guardianship to the petitioner. The
Court, in its discretion may not entertain a petition for guardianship by a
foreigner unless the Court is satisfied that adequate attempts for at least
three months or such other period as the Court may deem fit have first been
made to place the child in an Indian Home. For this purpose the Court may ask
the petitioner to obtain a no objection letter from a Voluntary Co-ordinating
Agency or any other similar organisation working for the placement of children
in Indian Homes. When the
proposed guardian is related to the child, the Court may dispense with any of
the above provisions. A
guardianship order shall be in the Form No. 2 prescribed in the appendix with
such modifications as may be required in each case. A photograph of the child
signed by an authorised officer of the Court shall be attached to the order. A copy of
every guardianship order appointing a foreigner as a guardian shall be
forwarded to the Ministry of Social Welfare, Government of India and Social
Welfare and Cultural Affairs Department, Government of Maharashtra, Mantralaya,
Mumbai-400 032. The Court
shall have the power to waive the requirements of any of the above rules
relating to petitions for guardianship in a suitable case. In case
of child placed in guardianship, the Court may, at any time direct a counselor
attached to the Court to supervise the placement of the child and submit a
Report or Reports thereon to the Court in such manner as the Court may deem
fit.FAMILY COURTS (COURT) RULES, 1988
PREAMBLE