[1]THE FAMILY
COURTS (KERALA) RULES, 1989 In exercise of the powers conferred by
section 23 of the Family Courts Act. 1984 (Central Act 66 of 1984), and in
consultation with the High Court of Kerala, the Government of Kerala hereby
make the following rules, namely:- (1)
These
rules may be called the Family Courts (Kerala) Rules, 1989. (2)
They
shall apply to the Family Courts constituted in the State of Kerala under the
Family Courts Acts, 1984. (3)
They
shall come into force on such date as the Government may, by notification in
the Gazette appoint. (1)
A
party to a suit or proceeding shall be entitled, with the permission of the
Court, to take legal advice at any stage of the suit of proceeding either
before the counsellor or before the court. (2)
Members
of the Scheduled Castes/or Scheduled Tribes or persons in indigent
circumstances who were given permission under sub-rule (1) shall be eligible
for free legal aid and advice, and the cost thereof shall be met by the Government. Explanations.- A person in indigent
circumstances would be one whose monthly income is less than Rs. 400. Institution of
Proceedings and Service All proceedings instituted before the Family
Court shall be by way of petition, however, in respect of applications under
Chapter IX of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the
provisions of that code will apply. Every petition or application shall be
accompanied by as many clear authenticated copies thereof as there are
respondents to be served and by three additional copies for the use of the
Court and by such papers as are referred to in the petition or application. One
copy of such petition or application shall be forwarded by the Chief
Ministerial Officer 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 summons to appear and answer
shall be in Form No. 1 in the Appendix with such variations as the
circumstances of the case may require. The name and address of the party shall be
stated in every summons, witness summons, interim application notice, warrant
and every process of the court issued at the instance of such party. All summons, rules, orders, warrants and
other mandatory processes shall be sealed with the seal of the Court and shall
be signed by the Chief Ministerial Officer adding thereto the date of signing. Unless otherwise ordered, the summons shall
be made returnable within three weeks from the date of the filing of the petition,
if the respondent resides within the local limits of the Court, and within five
weeks from the date of filing of the petition, if the respondent resides
outside the local limits. The returnable date shall be fixed on the day of the
week fixed for giving directions as provided in rule 20. The 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 20. Summons together with a copy of the petition
or application and annexure, if any, shall be served in the manner prescribed
in the Code of Civil Procedure, 1908 save in proceedings under Chapter IX of the
Code of Criminal Procedure, 1973, where the provisions of that Code will apply. 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. Application for substituted service of the
summons shall be governed by the corresponding provisions in the Code of Civil
Procedure, 1908. If on account of the default of the
petitioner, the summons is not served within six months from the date of the
filing of the petition or application, the court shall, unless good cause is shown,
dismiss the petition or application. Such dismissal shall be notified on the
notice board by the Chief Ministerial Officer. There shall be attached to each Family Court
a Counselling Centre to be known as "The Counselling Centre of the Family
Court of........................." Each counselling centre shall have a
Principal counsellor and such number of Counsellors as the Government may, in
consultation with the High Court, determine. The counselling centre shall be divided into
different units and may be located in the court premises and/ or in such other
place or places as the High Court may direct. Counsellors attached to the counselling
centre shall be appointed by the Government in consultation with the High
Court: [2][Provided that the
Principal Counsellor attached to the Counselling Centre shall be appointed by
the High Court from a panel prepared by the High Court in consultation with one
or more professionally qualified experts in Family and the Child Welfare,
preferably working with a recognised institution of social science or social
work.] Persons to be appointed as Counsellors must
have a Master's Degree in Social Work and experience for a minimum period of
two years in family counselling. The conditions regarding minimum experience in
family counselling may be relaxed in the case of candidates otherwise
exceptionally qualified and found suitable. Preference shall be given to
women.]1 Proceedings in Court On the returnable date of the summons, the
petition shall be placed for direction before the Judge of the Family Court. One day in a week shall be designated by the
Judge for the giving of such directions. On the date fixed for giving directions, the
Principal Counsellor or such other counsellor authorised 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 consult the specified counsellor for
the purpose of counselling. Such counsellor shall be chosen bearing in
mind the convenience of the parties, their special requirements and other
attendant circumstances. Counselling Procedure The Counsellor appointed, the counsel the
parties shall fix the time and date of appointment. The parties shall be bound
to consult the counsellor on the date and at the 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 make a report to the court stating that one or both the
parties have failed to attend the counselling centre. One such report being
made the court may proceed with the matter without prejudice to the other
powers of the court to take action against a defaulting party. (1)
Counsellor
entrusted with any petition shall assist and the 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. (2)
The
Counsellor in the discharge of his duties shall be entitled to pay home visits
to the homes of any of the parties. (3)
The
counsellor in the discharge of his duties shall be entitled to interview
relatives, friends and acquaintances of parties of any of them. (4)
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. (5)
The
Counsellor may in the discharge of his duties refer the parties to an expert in
any other area such as medicine or psychiatry. The 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 Councellor shall prepare a list of institutions, organizations or
agencies working in the field of family welfare, child guidance, employment or
in any other field that he may deem fit, in order to enable a Counsellor or
parties to obtain the assistance of such an institution/organization or agency,
as the case may be, and may also lay down the manner in which and the
conditions, subject to which such institutions, organizations or agencies may
association with a Family Court.]1 Any information gathered by the Counsellor,
any statement made before the Counsellor or any notes or report prepared by the
Counsellor shall 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 the information, statements, notes or
report referred to in rule 29: Provided that the Counsellor shall submit to
the Court a report relating to the home environment of the parties concerned,
their personalities and their relationship with their child/children in order
to assist the court in deciding the question of custody or guardianship of any
child/children of the marriage: Provided further that the counsellor shall
also submit to the court a report relating to home environment, income or
standard of the 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 on any other subject in order to assist the court in
adjudicating upon the matter before it or any part thereof and a copy thereof
may be supplied to the parties on request. The parties shall be entitled to make their
submission 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 shall
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. The Counsellor shall be entitled to supervise
the placement of children in custody of a party and for reasons to be recorded in
writing, shall be entitled to pay surprise visits to the home where the child
resides between 6 a.m. to 6 p.m. In the event of the Counsellor coming to a
conclusion that any alteration is required in the arrangement relating to
custody of a child/children, the Counsellor shall make a report to the Court in
that connection. Thereupon the court may, after notice to the parties, pass
such orders in that connection as the Court may deem fit. The counsellor shall also be entitled to
supervise guide and/or assist reconciled couples, although the matter is no
longer pending in court. Co-habitation between the parties, in the
course of conciliation proceedings before the Counsellor, shall not be deemed
to be condonation of the matrimonial offence. Hearing of
Petitioners in Court On the proceedings before the Counsellor
coming to an end and on the Counsellor filing a memorandum in the petition
setting out the outcome of the proceedings before him, the Chief Ministerial
Officer 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 Chief Ministerial
Officer shall fix a date of hearing after consulting both the parties. The Chief Ministerial Officer shall also
ascertain from the parties the approximate time likely to be taken by each
party before the court for the hearing of the matter and report the same to the
court for appropriate adjustment of work by the court. In the event of any party remaining absent at
the meeting called on by the Chief Ministerial Officer, he shall fix such date
of hearing as he may deem fit. The Chief Ministerial Officer shall fix a date
at least 4 weeks after the date of the meeting. On the dates so fixed by the Chief
Ministerial Officer the petition shall be placed before the court for hearing
and final disposal. Any party finding the date fixed by the Chief
Ministerial Officer unsuitable for any reason, may get it adjourned by the
Chief Ministerial Officer after notice to the other side but at least two weeks
before it is placed on the daily board. The Chief Ministerial Officer shall not
ordinarily alter the date when the date has been fixed in the presence of both
the parties. A petition so fixed on the daily board 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 Chief Ministerial
Officer. The Court shall record its reasons for adjourning a matter. It shall be open to the court to appoint any
person 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 that such representative should not derive any undue
pecuniary advantage out of the appointment. The court may appoint a
representative amicus-curiae assist the court in the discharge of its duties. The Court shall prepare a memorandum of the
substance what the witness deposes as prescribed under section 15 of the Family
Courts Act, 1984. It is open to the court to tape record the evidence. In the event of any appeal or revision being
filed before the High Court, a party may 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 such fees as may be determined by the court
from time to time. Save as aforesaid, the provisions of the Code
of Civil Procedure, 1908, of the Code of Criminal Procedure, 1973, as the case
may be, shall apply to the proceedings before the Family Court. Interim Applications All interim applications to the Court shall
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 purposes of such application before deciding an interim
application. Guardianship All applications for guardianship other than
applications over which the High Court has jurisdiction shall be filed before
the Family Court. Every application shall be in the form of
petition. In deciding a guardianship petition, the
court may take the assitance 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 fix the fees to be paid to the
agency for its work. (1)
Every
application 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 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/or persons shall be prepared by the Judge
and Principal Counsellor in consultation with the High Court. (2)
When
the petition for guardianship is so 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 and 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 Form No. 2 in the
Appendix when the child is institutionalized or court committed; (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 shall 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 recognized 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 the foreigner under the law of the country where he/she resides. The court may direct a foreigner petitioner
to give a bond for such amount as it may think proper for the return of the
child to India in 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 in 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 or
adoption to another person. 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' certificate/ letter from any recognized/approved voluntary
coordinating Agency or any other similar organization 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 Form No. 3
with such variations as the court may deem fit. A photograph of the child
signed by an authorized 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
of the State and also to the Ministry of Social Welfare, Government of India.THE FAMILY COURTS (KERALA) RULES, 1989
PREAMBLE