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Report No. 54

Chapter 32A

Suits Concerning The Family

Introductory

32A.1. We propose to add a new Order, intended to deal with suits relating to matters concerning the family. We explain below the reasons for adding it.

Peculiarity of disputes concerning the family

32A.2. In the administration of justice, in disputes relating to the family, one has to keep in mind the human relationships with which one is dealing. The objective of family counselling, as a method of achieving the ultimate object of preservation of the family, is to be kept in the forefront.

32A.3. Litigation concerning or involving affairs of the family, therefore, requires a special approach, in view of the serious emotional aspects involved. For this sensitive area of personal relationship, our ordinary judicial procedure is not ideally suited. As Sir Garfield Barwick (then Attorney-General of Australia), said1 in the debates on the Matrimonial Clauses Bill, 1959, the Judge not unnaturally feels reticent about intruding into the human relationship of those who come before him; and the parties themselves so often enter into a conspiracy of silence, where their innermost secrets are concerned.

1. Australia, H. Parl. Deb. (New Series), 2222, 2225, 2227.

32A.4. It is now being increasingly realised that-

(a) as far as possible, an integrated broad based service to families in trouble, should become a part of the Court system;

(b) the existing court structure should be so organised that one single court should deal with the problem of preserving the families; and

(c) the conventional procedure dominated by the adversary system may not be appropriate for disputes concerning the family.

32A.5. Many of these matters are outside the scope of this Report; moreover, it will require considerable time and effort to re-mould the legal system to make it an effective instrument for dealing with them. Nevertheless, it is felt that so far as the Code of Civil Procedure is concerned, it may be desirable to have special provisions on some matters,-provisions which highlight the need for adopting a different approach, where matters concerning the family are at issue, including the need for efforts to bring about an amicable settlement.

Recommendation

32A.6. With the above object in view, a few provisions relating to suits concerning the family are proposed in the form of a new Order, which will be as follows;-

"Order 32A-Suits relating to matters concerning the family

1. Application of the Order.-(1) The provisions of this Order apply to suits or proceedings relating to matters concerning the family.

(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order apply to the following suits or proceedings, namely.-

(a) a suit or proceeding for matrimonial relief, including a suit or proceeding for a declaration as to the validity of a marriage, or as to the matrimonial status of any person;

(b) a suit or proceeding for a declaration as to the legitimacy of any person;

(c) a suit or proceeding in relation to guardianship of the person or custody of any minor or other person under disability;

(d) a suit or proceeding for maintenance.

(e) a suit or proceeding as to the validity or effect of an adoption;

(f) a suit or proceeding relating to Wills, intestacy and succession;

(g) a suit or proceeding relating to any other matter in respect of which the parties are subject to their personal law.

(3) So much of any rule contained in this Order, as relates to a matter provided for by a special law in respect of any suit or proceeding, shall not apply to that suit or proceeding.

2. Proceedings to be held in camera-In every suit or proceeding to which this Order applies, the proceedings may be held in camera, if the court so desires and shall be so held if either party so desires.

3. Duty of court to make efforts for settlement-(1) In every suit or proceeding to which this Order applies, it shall be the duty of the Court in the first instance, in every case where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceedings for such period as it thinks, fit, to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-rule (2) is in addition to any other power of the court to adjourn proceedings.

4. Assistance of welfare expert-In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of such person,1 whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family, as the court thinks fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 of this Order.

5. Duty to inquire into facts-In every suit or proceeding to which this Order applies, it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.

6. For the purposes of this Order, each of the following shall be treated as constituting a family, that is to say-

(a) a man and his wife living together, any child or children being issue of theirs, his or hers, and any child or children being maintained by them;

(b) a man not having a wife or not living together with his wife, any child or children being issue of his, and any child or children being maintained by him;

(c) a woman not having a husband or not living together with her husband, any child or children being issue of hers, and any child or children being maintained by her;

(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him; and

(e) any combination of one or more of the groups specified in clauses (a), (b), (c) and (d) of this rule."

1. The person should preferably be a woman, wherever available.



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