In exercise of the powers conferred by section 21
of the Family Courts Act, 1984 (No. 66 of 1984) the High Court of Calcutta
hereby makes the following rules for the Family Courts in the State of West
Bengal. This is in supersession of the Family Courts Rules,
1988, as published under High Court's Notification No. 1476-A dated 19.2.1988. These rules may be called the Family Courts
(Calcutta High Court) Rules, 1990. These rules shall come into force on the date of
their publication in the Official Gazette. These rules shall apply to the Family Courts
established in the State of West Bengal under 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 and includes office of the organisation/institution
which the Counsellor represents; (c)
"Court"
means the Family Court established under section 3 of the Act; (d)
"Petition"
shall include an application under Chapter IX of the Code of Criminal
Procedure; (e)
"Principal
Counsellor" means the Principal Counsellor appointed by the High Court and
where such Counsellor is not appointed, it shall include counsellor or
counsellors as the case may be; (f)
"Registrar"
means Registrar appointed under the West Bengal Family Court Rules, 1994. For preparing a panel of the counsellors the High
Court will empanel voluntary organisations/social action groups/welfare
agencies who will maintain Family Counselling Centre with minimum
infrastructure within the jurisdiction of the respective Court. The names and
addresses of the representatives of such approved agencies shall be empanelled
by the High Court within January every year and the High Court will maintain a
register of the Counsellors whose term will expire till name(s) of the
successor(s) are forwarded by the organisation concerned for the subsequent
year. The court may appoint a lawyer amicus curiae to
extend legal aid to the parties who will also assist the Court in the discharge
of its duties as contemplated in section 13 of the Act. All proceedings instituted before the Family Court
will be by way of a petition. However, in respect of applications under Chapter
IX of the Code of Criminal Procedure, 1973, the provisions of that Code will
apply. A petition or any other application will be filed
in duplicate. One copy of such petition or application will be forwarded by the
Registrar of the Family Court to the Principal Counsellor. In all matters other than those under Chapter IX of
the Code of Criminal Procedure, 1973, the writ of summons to appear and answer
shall be in Form No. 1 with such variations as the circumstances of the case
may require. The name and address of the 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. 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, Rules, Order, Warrant or 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 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 fling 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 will be fixed on the day of the week fixed
for giving directions as provided in Rule 24. The writ of summons shall be made returnable on the
day on which the petition is to be placed on board for directions as herein
provided in Rule 23. A writ of summons shall be served in the manner
prescribed in the Code of Civil Procedure, 1908, save and except in proceedings
under Chapter IX of the Code of Criminal Procedure, 1973, where the provisions
of that Code will apply and such summons shall be served on a respondent
personally. Writ of summons or other process may be served even
on Saturdays, Sundays or on holidays notified by the court. Any respondent applying to the petitioner for a
copy of the petition and exhibits annexed thereto shall be furnished with the
same but where there are several respondents, it shall be sufficient to supply
one copy of the petition and exhibits to the party/parties: Provided that if the application is made after the
passing of a decree in a petition, such copy need only be furnished to the
respondent on payment of the copying charges. Whenever upon further amendment of any writ 0?
summons the Registrar is of opinion that a fresh writ of summons should be
substituted, he shall direct it to be done and such fresh writ of summon shall
be prepared by the petitioner 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 evidence showing that the
summons was served in the manner provided by the Code of Civil Procedure, 1908.
Such proof shall ordinarily be by the affidavit of the bailiff and (as to such
matter 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 identification of the
person served or as 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 deposition made before 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
deposition 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. Proceedings In Court On the returnable date of the summons, the petition
will 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 may be designated by the
Principal Judge for giving of such directions. On the date fixed for giving directions, the
Principal Counsellor or such other Counsellor designated by him shall attend
the court of the Judge giving directions. When giving such directions, the Judge shall, in
consultation with the Principal Counsellor or such other Counsellor who may be
present in court, direct the parties to attend a specified Counsellor for the
purpose of counselling. Such Counsellor will be chosen bearing in mind the
convenience of the parties, their special requirements and the area in which
the unit to which that Counsellor is attached is located. The Counsellor appointed to counsel the parties
will fix the place, lime and date of appointment. The parties shall be bound to
attend the Counsellor at the place, date and time so fixed. If one of the parties fails to attend the
Counsellor on the date and at the time so fixed, the Counsellor may fix another
date and time and inform the absentee party accordingly by registered post. If
the said party does not attend the counselling centre on such adjourned date,
the Counsellor may, unless he gives further opportunity, make a report to the
court stating that one or both the parties have failed to attend the
counselling centre. On such report being made, the court may proceed with the
matter without prejudice to other powers of the court to take action against a
defaulting party. Counsellor entrusted with any petition shall assist
and advise the parties regarding the settlement of the subject-matter of
dispute between the parties or any part thereof. The Counsellor shall also help
the parties in arriving at reconciliation. The Counsellor in the discharge of his duties will
be entitled to pay home visits to the homes any of the parties. The Counsellor in the discharge of his duties will
be entitled to interview relatives, friends and acquaintances of parties or any
of them. The Counsellor in the discharge of his duties may
seek such information as he may deem fit from the employer of any of the parties. The Counsellor may refer the parties to an expert
in any other area such expert in medicine or psychiatry except when specific
directions are given by court. The Principal Judge in consultation with the
Principal Counsellor of the Family Court shall prepare a panel of such experts. The Principal Judge in consultation with the
Principal Counsellor shall also prepare a list of institutions, organisations
or agencies working in the area of family welfare, child guidance, employment
or in any other area that he may deem fit, in order to enable a Counsellor or
parties to obtain the assistance of such an institution, organisation or
agency. The Counsellor may take the assistance of such an
organisation, institution or agency in the discharge of his duties. Information gathered by the Counsellor, any
statement made before the Counsellor or any notes or report prepared by the
Counsellor will be treated as confidential. The Counsellor shall not be called
upon to disclose this information, statements, notes or report to any court
except with the consent of both the parties. The Counsellor shall not be permitted to give
evidence in any court in respect of this information, statements, notes or
report. The Counsellor will submit to the court a report
within such time as may be specified by the court relating to home environment
of the parties concerned, their personalities and their relationship with their
child and /or children in order to assist the court in deciding the question of
custody or guardianship of any child or children of the marriage. The Counsellor will also submit to the court a
report within such time as may be specified by the court relating to income or
standard of living of the party or parties concerned in order to assist the
court in determining the amount of maintenance and/or alimony to be granted to
one of the parties. The court may also request the Counsellor to submit
to it a report within such time as may be specified by the court probably
within six months on any other subject in order to assist the court in
adjudicating upon the matter before it or any part thereof. The parties will be entitled to make their
submissions on the report. The Counsellor shall not be asked to give evidence,
and shall not be cross-examined in any court in respect of the report so made. Save as aforesaid, the Counsellor will submit a
brief memorandum to the court informing the court of the outcome of the
proceedings before him. When the parties arrive at a settlement before the
Counsellor relating to the dispute or any part thereof such settlement shall be
reduced to writing and shall be signed by the parties and countersigned by the
Counsellor. The court shall pronounce a decree or order in terms thereof unless
the court considers the terms of the settlement unconscionable or unlawful. On the proceedings before the Counsellor coming to
an end and on the Counsellor filing 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 petitions. 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 will 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 and the time so ascertained shall be kept
free for the disposal of the matter. Such time will 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 a date of hearing as
he may deem fit and such date shall be fixed at least 4 weeks after the date of
the meeting. On the dates so fixed by the Registrar the petition
shall be placed on the board of the court for hearing and final disposal. 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 but at least two weeks before it is placed on the daily board. Registrar will not ordinarily alter the date when
the date has been fixed in the presence of both the sides. A petition so fixed on the daily board will 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. It will be open to the court to appoint any person
individually or person/ persons representing any approved voluntary registered
organisation/ social action group/registered and established welfare home
capable of protecting the interests of a minor as his/her representative to
represent independently the minor affected by litigation before the court. The
court shall endeavour to safeguard that such representative should not derive
any undue pecuniary advantage out of this appointment. The court may appoint a
representative amicus curiae to
assist the court in the discharge of its duties. The court shall prepare a memorandum of substance
of what the witness deposes as prescribed under section 15 of the Act. Save as aforesaid, the provisions of the Code of
Civil Procedure, 1908, or the Code of Criminal Procedure, 1973, as the case may
be, shall apply to the proceedings before the Family Court. (i)
The court shall normally sit between 10-30 a.m. and 4-30 p.m. with a
break of half an hour from 1-30 p.m. to 2-00 p.m. The court may close at 2 p.m.
on Saturday, if the state of work permits. (ii)
The court
shall normally hold its sitting at the place/places as fixed by the Government
in consultation with the High Court as contemplated in sub-section (2) of
section 3 of the Act: Provided that the court may hold its sitting at
places other than the ordinary place of sitting on such days including Sundays
and holidays as it deems fit. Interim Applications All interim applications to the court will be
separately numbered as 'Interim Application'. No._____________________ In Petition No.____________________ An interim application may be made even while the
matter is pending before a Counsellor. The court may ask the Counsellor to submit an
interim report for the purpose of such application before deciding an interim
application. Upon consideration of such application the court
may pass orders as it may think fit including direction on the authority of a
short-stay home attached to any registered voluntary organisation/social
organisation/ organisation rendering legal aid and advice to the vulnerable
section of the community, to arrange accommodation for the applicant before it
for a temporary period with or without any charge. The court may while disposing of such application
direct payment of a portion of the maintenance if so granted, towards the cost
of board, lodging, etc., during the period of short-stay of the applicant in a
short-stay home. Guardianship All applications for guardianship under the Act
other than applications over which the High Court has jurisdiction, will be
filed in duplicate before the Family Court. Such applications will be in the form of a
petition. In deciding a guardianship petition, the court may
take the assistance of a social welfare agency for the scrutiny of the
petition. The court may also ask such an agency for its report thereon. The court may prescribe fees to be paid to the said
agency for its work. Every application for guardianship, when it is by a
person other than the natural parent or natural guardian of the child will be
accompanied by home study report of the persons 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 persons shall be
prepared by the Principal Judge and Principal Counsellor in consultation with
the High Court. Such list shall be forwarded to the High Court every two years
for review. In deciding an application under Rule 67 the court
shall also seek report from an approved Welfare agency for providing
information which will form a basis for the selection of the prospective
guardian for the child as prescribed in form No. 2 of these rules. When the 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/her 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, if any, of the
petitioner and/or the spouse. (iv)
A health
certificate of the child proposed to be taken in guardianship signed by a
medical practitioner. (v)
A child
study report of the child proposed to be taken in guardianship together with a
photograph of the child. Such report shall be in the prescribed Form No. 2 when
the child is institutionalised or committed by the court. (vi)
A
declaration from the proposed guardian and his/her spouse, if any, expressing
their willingness to take the child in guardianship. When the 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; and, (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. No application on behalf of a foreigner for being
appointed guardian of the person of an Indian minor under the Guardians and
Wards Act, 1890, shall be entertained unless recommended in that regard by a
welfare agency licensed/recognised for the time being by the Government of the
country of which the applicant is a citizen. Note : A
list of agencies mentioned in Rules 71 and 72 approved by their respective
Government is set out in Appendix-I to these Rules. (i)
Only a child welfare agency recognised for the time being by the
Government of India can sponsor submission of an application for declaring a
foreigner to be the guardian of an Indian child to the court competent to deal
with it and unless so sponsored, such an application shall not be entertained. (ii)
The court
may cause publication of a photograph of the child in a leading newspaper and
other media including television to ascertain the identity of the child and
whether there is any claim by biological parents at the cost of the proposed
guardian. Note : A
list of agencies valid for the State of West Bengal currently recognised by the
Government of India is set out in Appendix-II to these Rules. (1)
In dealing with such an application the court may take the assistance of
any of the approved welfare agencies/organisation based in West Bengal
including that mentioned in Appendix II. (2)
Notice of an application for declaring a foreigner to be the guardian of
an Indian child shall be given in any two leading English newspapers and also
to the Indian Council of Social Welfare or the Indian Council of Child Welfare
or any of its State units for scrutiny of the application with a view to
ensuring that it will be for the welfare of the child to be given to the
foreigner whose application for guardianship is under consideration. (3)
In disposing of such an application the court may make such enquiries as
it may deem fit and proper for being satisfied that such appointment of a
foreigner as guardian will be conducive to the interest and welfare of the
child, no order for such appointment shall be made nor shall the court permit
the child to be removed to the country of the applicant for eventual adoption
unless the court is so satisfied and unless the applicant. makes provisions by
way of execution of a bond or otherwise to enable the child to be repatriated
to India should it become necessary to do so for any reason. In every such
enquiry, if the child. is above the age of seven years, the court shall
ascertain the wishes of the child. (4)
In every case where such an application is made, the applicant shall
deposit with the court a sum of Rs. 5001 towards the costs of scrutiny as
enjoined by these rules and all costs in that regard shall first be met out of
the said sum, subject to any further direction by the court for the balance. (5)
Every appointment so made shall be subject to a condition to be
incorporated in the order that the foreigner shall submit to the court as also
to the recognised Indian agency sponsoring the application for guardianship the
full details of the normal residence of the child in the foreign country where
the child is to be taken and progress report of the child along with all
information regarding change, if any, in the residence of the child and a
recent photograph quarterly during the first two years and half yearly for the
next five years. (6)
The order appointing a foreigner to be the guardian of an Indian child
shall carry, attached to it, a photograph of the child duly authenticated by an
officer authorised by the court in that behalf and another copy of such
photograph shall be kept on the record. (7)
If the biological parents of the child are known they may be properly
assisted by the social or child welfare agency /home etc., in taking a decision
about the relinquishing of the child for adoption. But no notice of such an
application for declaring a foreigner to be the guardian of an Indian child
should be given to the child's biological parents nor should it be published in
any newspaper. (8)
When an order appointing a foreigner as guardian of an Indian child is
made by a court an intimation shall be given by the court to the Ministry of
Social Welfare, Government of India, as also to the Relief and Welfare
Department, Welfare Branch, Government of West Bengal under intimation to the
judicial department of the Government. (9)
If due to disruption or failure of adoption in the foreign country, any
alternative placement of the child is considered necessary by the recognised
foreign agency, the said fact should forthwith be reported to the court making
the appointment and necessary permission should be taken from the said court
for such placement. Every such application shall be procured through the Indian
agency which had sponsored the original appointment and notice thereof shall be
given to the Ministry of Social Welfare, Government of India as also to the
Relief and Welfare Department, Welfare Branch, Government of West Bengal under
intimation to the judicial department of the Government. (10)
The court shall review the living condition of the Indian child taken in
guardianship by a foreigner under the Act through any of the approved
organisations of the State of West Bengal recognised by the Ministry of Social
Welfare, Government of India. 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. Then
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
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. The court shall have the power to waive the
requirements for reasons to be recorded of any of the above rules relating to
petitions for guardianship in a suitable case. In case of a child placed in guardianship the court
may, at any time direct a counsellor attached to the court to supervise the
placement of the child and submit a report thereon to the court in such manner
as the court may deem fit. The court shall send quarterly reports in respect
of Indian children taken abroad by a foreign national under the Act to the
Secretary, Ministry of Social Welfare, Government of India and the Relief and
Welfare Department of the State Government. The report shall be in respect of
such quarter ending with the 31st March, 30th June, 30th September and the 31st
December. The report shall be in the proforma detailed below. 1.
Name of the State. 2.
Number of children given in guardianship to foreign nationals during the
quarter under report. 3.
Country-wise break-up of the number of children in column (2). 4.
Number of children permitted to be taken abroad by foreign nationals as
guardians during the quarter under report. 5.
Country-wise break-up of the children in column (4). 6.
Number of applications of foreign nationals for guardianship of Indian
children which were rejected during the quarter under report. 7.
Number of applications of foreign nationals for guardianship of Indian
children which were pending final disposal at the end of the quarter. 8.
Remarks or comments, if any. Form NO. 1 (vide rule 9) In The Family Court At Petition No................................ of
20.............. ...............................................Petitioner Versus To .............................................(Respondent) Whereas the abovenamed petitioner has instituted a
Suit against you, as set out in the petition (annex the petition). You are hereby required to file in this Court an
appearance in person within 3 weeks from the service of this summons upon you. And whereas, the petition will be placed for
directions on the board of the Judge on the................. day of............
20.......... You are hereby summoned to appear before the Judge
to answer the Petitioner's claim on the said.............. day
of................ 20....... at 11 o'clock in the forenoon, and Take notice
that on the day abovementioned after hearing parties who appear, directions
will be given by the Judge as to the date of hearing before a counsellor of the
Family Court and other matters concerning the petition, and Take further notice that if you fail to file your
appearance in person as directed above, or if you fail to appear before the
Judge on the day abovementioned the petition may be ordered to be set down on
Board on the same day or any subsequent day as "undefended" and you
will be liable to have a decree or order passed against you. Witness................................ Principal
Judge at.................................. aforesaid,
this............................ day of...................... 20............. Sealer. Registrar. The.......................... day
of............................ 20.......... Petitioner Address:The Family Courts (Calcutta High
Court) Rules, 1990
[19th March, 1991]
Institution of Proceedings And Service
Hearing Of Petitions In Court