Family Courts were established as per Act 66/1984. The preamble tells us: “An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith”.

The question that causes serious concern to laymen, lawyers and lawmakers is: Does our system achieve, to some extend, this laudable object ?

Recently, our Hon’ble Chief Justice reminded us that Family Courts are not meant to facilitate divorce, but for uniting and strengthening matrimonial relations. This simple but elegant statement reminds us of the often forgotten object of the Statute.

We have been witnessing a steady deviation from the avowed object of the Statute. We are witnessing a stage where matrimonial disputes are considered routine civil litigation material with emphasis given on ‘disposal as per law.’ This is not the cherished object of the statute. Otherwise, there was no need to detach family disputes from the jurisdiction of civil courts. The Family Courts Act contains inbuilt measures to ensure that cases coming thereunder are not adjudicated and decided as ordinary civil matters. This starts right from the selection of Judges. S.4(4) of the Act provides thus:

In selecting persons for appointment as Judges (a) every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reasons of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected; and preference shall be given to women.

The guidelines to persuade parties to arrive at a settlement, including duty of a Judge and simplification of procedure to achieve the object of the Statute are contained in Chapter IV of the Act. For easy reference, Sections 9(1), (2), 10(3), 12, 14 and 15, which are relevant, are extracted:

9. Duty of Family Court to make efforts for settlement. (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent 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 and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.

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

10. Procedure generally:-

(1) ...........

(2) ...........

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other.

12. Assistance of medical and welfare experts:  In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or 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 as the Court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act.

13. Application of Indian Evidence Act, 1872: A Family Court may receive as evidence any report, statement, documents, 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(1 of 1872).

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

Inadequacies of the Statute are not the reason for the transformation of Family Courts into ordinary courts. Due to explosion in number of cases, conciliation/settlement process has become a formality in most cases. It may not be incorrect to mention that many involved in the counselling process develop, over a course of time, lack of commitment to the cause of the Statute and society. They end up as automatons performing routine formality. It is desirable to assess performance of counsellors periodically with positive parameters and standards. Matrimonial cases being what they are, counselling a person with medical problems, of whatever nature, by a person not exposed to clinical side of the problem, will not be effective. To meet the situation, mediators who are aware of complexities of matrimonial relations, disputes and solutions are needed. Necessary rules permitting a different approach to the same problem will be most welcome and desirable. Mediation centres can be opened at each Family Court Centre, keeping in mind they are to unite couples and not untie them. Settlement in matrimonial causes should be with the object of resurrection of the marriage than of destruction of the same. There are practical difficulties in finding qualified, committed and experienced Judges as laid under S.4(4). The Judge may be committed to his work and sincere to the cause, but often, he may not have the required expertise. Expertise may come from experience, but that is not what is needed. We need professionally trained hands to deal with complex family disputes. Such training can be imparted by the Judicial Academy with the assistance of professional agencies. We have to bear in mind that we are dealing with a very sensitive area in human mind and the Academy has its institutional limitations.

Though S.15 directs that substance of the evidence alone need be recorded, in actual practice, the entire evidence is recorded word by word in Family Courts. The method of recording the substance of the evidence as in summary trials before Magistrate is not known to many Judicial Officers.

We have to remember that, in our India of the most ancient of cultures and religions, marriage was one of the four Aasramas in man’s life and that unless he was successful in fulfilling his marriage vows, he could not enter Sanyasa. Faithful or faithless, believer or unbeliever, modern or conventional, what can a failed species contribute to its own soul ?

In U.S.A., we find fault based and no-fault based divorce applications and doctrine of comparative rectitude, whereby court may award the divorce to the spouse whose fault is less serious. In U.K., we find divorce can be applied for on the ground of “Unreasonable behaviour”. Drawing parallels from other legal systems to enact laws first and then leave interpretation thereof them later to courts may be acceptable in other areas of human activity, but in the Indian matrimony sector, such exercises will only cause social acrimony.

We also notice the principle of 50-50 in Europe and other western countries where the couple is made to share their assets equally. Many lawyers in India do attempt to put the couple together again, but they are unable to play God to reunite them. At the same time, many more lawyers attempt to ensure that the couple never reconcile and foist litigation after litigation, for obvious reasons. In a small State like Kerala, the situation is alarming. In many other States, the situation is appalling.

It is heard that 50-50 proposal is being mooted in India also. The concept of manipulated marriage and engineered divorce is only likely to surge up thereby, whatever justifications one may offer for providing more user friendly facilities for divorce. Now-a-days, attachment has become just something that comes to you as Email, to be detached and erased at will. Should we permit marriage to be such a farce ?

Advocates have to express more social commitment and conscience in resolving family disputes. Professional dignity and morality apart, individual sense of right and wrong goes a long way in such cases. Modern human relations are complex. Simple acts and omissions create feeling of insecurity and lack of trust between newly married couples, which ultimately lead to bitterness and separation. Half-a-century ago, marriages were virtually “what God hath put together, let no man pull asunder”, though there were difficult husbands and wives then also. We claim that, unlike the West, we maintain stronger family ties. Separation of couples brings disaster to the family, especially children. Children need parents to imbibe true values. If not, they may fall prey to several undesirable traits, which have assumed more undesirable proportions in recent times. Let us make our Family Courts places to build relationships and not to break them. Let us explore methods to achieve the true object of the Family Courts Act.

In an age of nuclear families and “only child” syndrome, matrimony is one institution that has to survive on its own for the sake of tomorrow and not just today, helped by man and God. Many people think that Family Courts are meant for rescuing the female. Are they are not overlooking the "Henpecked" male?

Jai  Hind.

‘My Lord’ or ‘Mr. Justice’?

(By P.K. Suresh Kumar, Senior Advocate, High Court of Kerala, Ernakulam)

The Article by Advocate S.A. Karim with the title “Addressing the Judges” in Part 5 of 2014 (1) KLT and the reference therein to the petition filed by another Advocate in the Supreme Court reminded me of two communications published in 1973 KLT (journal) p.89. For the convenience of readers they are reproduced below:

Mode of Addressing the Courts Communications

HIGH  COURT  OF  KERALA,

Cochin – 11

22nd June, 1973

My dear Mr. President, Advocates’ Association,

I am enclosing a communication from the Ag. Chief Justice of India which is self-explanatory.   In this connection, I recall our talk this morning.   In the light of that, please note that with effect from the 1st July 1973, the Judges of the High Court may be addressed by the members of the bar as ‘Mr. Justice’ and the Chief Justice as ‘Mr. Chief Justice’.  If it becomes difficult to address a Judge as ‘Mr. Justice’ in the course of arguments, he may be addressed as ‘Sir’.  The form of addressing the court may be ‘this Honourable Court’.   Please inform the members of the bar accordingly.

I am considering your suggestion for introducing similar methods of address in the subordinate judiciary.

Yours sincerely,

Sd/-

P. Govindan Nair,

Ag. Chief Justice.

Communication  from  the Ag. Chief  Justice  of  India

Chief Justice

SUPREME COURT OF INDIA

NEW DELHI

19th April, 1973

No. 124-CJI/73

My dear Chief Justice,

Re:   Mode of addressing the Court

After receiving replies on the above subject from almost all the Chief Justices of the High Courts, a Meeting of the Full Court of the Judges of this Court was held on March 12, 1973.  The Meeting decided that the Judges and the Chief Justice of the Supreme Court may be addressed by the members of the Bar as ‘Mr. Justice’ and ‘Mr. Chief Justice’ respectively, and when addressing the Court the form of address would be “this Honourable Court”.   It was also agreed that where in the course of arguments it becomes difficult to address a Judge as ‘Mr. Justice’ he may be addressed as ‘Sir’.

In consultation with the Bar Association here it has been decided to introduce the new mode of address on and from May 1, 1973.

I suggest that a uniform mode of address in the Supreme Court and in the High Courts would be proper.

With kind regards,

Yours sincerely,

            Sd/-

                  (J.M. Shelat)

              Acting Chief Justice.

So, forty years have passed since the Supreme Court and the Kerala High Court took the decision that the Judges of those courts need not be addressed as Lordships. Similar decision was taken in relation to the subordinate courts also. But, the decisions were not implemented by those who were supposed to do that. The Advocates continued to address the Judges as Lords though it was not in consonance with the Constitutional philosophy of the nation. The Bench had done what it could have done in order to democratise the court proceedings. It was the Bar which did not rise to the occasion.

But, several years later, the apex body of the Bar, framed Rules regarding the manner in which Judges of the higher courts and subordinate courts have to be addressed, without knowing that those are matters beyond their Rule making power and without noticing the existence of the decision of the Supreme Court quoted above. The Advocate who instituted the Public Interest Litigation was also not aware of the decision of the Supreme Court.  And he got his petition* dismissed on the ground that the relief sought for was something negative. If he had cited the above administrative decision of the Supreme Court, he could have asked for a direction seeking the implementation of the same.  

In any view of the matter, the Supreme Court, while dismissing the aforesaid petition has made it clear that the Judges are not particular that they need be addressed as Lordships and that any decent mode of address is welcome.  The ball is, therefore, in our court once again and it is for us to decide whether to stick on to the archaic ways or to change according to modern times.   If the administrative decisions quoted above have not perished by virtue of the doctrine of desuetude, the lawyers can think of implementing them or at least what has been suggested by Justice Alexander Thomas in his maiden speech.

* Ed. Note: W.P. (C) No. 881 of 2013 - Shiv Sagar Tiwari v. Secretary General, Supreme Court  of India.

Difference between Customary Right and Customary Easement 

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1.   A customary right exists independently of any dominant heritage and is vested in a defined class or community or a particular locality, as distinguished from individual for their sole benefit.

AIR 1958 Patna 571 at 574 (Rajnandan Singh v. Ramkishor Lohar).

A customary easement cannot exist without there being a dominant and servient heritage.

2. A customary right exists in gross and does not exist for beneficial enjoyment of the other property. A customary easement cannot exist in gross but can exist only for the beneficial enjoyment of the land and is merely appurtenant to the dominant heritage.

(AIR 1933 Nagpur 74 (76) (Ganapat v. Narayan)

3. A customary right is claimed by a person or a group of persons on basis of custom recognized by the community as a whole. An easement is required to be acquired by particular modalities and customary easement vest in the dominant tenement, and not in the particular person or a group of persons, unless they are rightfully in possession of dominant tenement. (AIR 1991 Bom. 119 at 122. (Radhakrish Kanolkar v. Tukaram Pundlik Hamkhaaandi),

AIR 1938 Cal. 202 at 204 = 66 Cal. LJ 270 (Harisadhande v. Radhika Prasad).

4.   Customary right do not require two tenements as easements do. 12 Law Times 27 Mannasay Vismay.

5.   Customary rights are not easements. (AIR 1923 Cal. 200 at 201, 202, 203. (Ali Mohammed v. Sheikh Katu)

6.   Customary rights are not easementary rights and are excluded from Easement Act.

A valid and ancient custom which gives rise to property is called customary right. A custom is a rule of conduct which is observed by the persons concerned spontaneously, without the sanction of any express provision of the law, because it has been uniformly observed by the community for a sufficient long period of time. The cumulative repetition of the conduct of the community for a long passage of time gives birth to a custom emanating there from a customary right and a customary easement. Customary right is not the subject matter of the Indian Easements Act. The Indian Easements Act has left customary rights untouched in all respects.

AIR 1935 All. 891 (894) = 156 I.C. 942 (Miru v. Ramgopal), AIR 1969 Raj. 31 at 35 (Syed Habib v. Kamal Chand)

7. Law does not require any fixed period of enjoyment to establish customary rights, but the custom must be reasonable and certain (1895) ILR 17 All. 87 (Kuersen v. Mamman)

(1899) ILR 23 Bom. 666 (Mohix v. Shivalingappa)

AIR 1981 Patna 133 at 135. (Prabhavatidevi v. Mahendra Narayan Singh)

8. Though no fixed period of enjoyment has been laid down by law, as being necessary to establish a customary right, yet no right would be recognized as a customary, where the period of user is even less than the period required for establishment of a customary easement viz. 20 years.

AIR 1965 Mad. 378 at 381 (Karuppan Ambalam v. Karuppan Ambalam)

AIR 1927 Mad. 144 at 146 (Raghavalu Naidu v. Secretary of State)

The Right of Way Used by the Villagers or the People of Locality  Between the

Ridges of Two Paddy Field Owners -- Whether it Could be  Extinguished in Case the 

Level of Paddy Fields on Both Sides of the  Ridge is Raised by Filling up by Earth

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

The titled question has become a very vital legal aspect in the present day, when the tendency is to level up the paddy fields by the land mafia.

A simple example will elucidate and clarify the question.

A and B are the owners in possession of respective adjacent paddy fields. Between the paddy field of A and B there is a ridge. It is through that ridge that the people of the locality or community pass and repass to go to their respective houses or fields. A and B sell their paddy fields to strangers. These strangers level up the paddy fields on both sides of the ridge and thereby cause extinguishment of the customary right of villagers.

Ouster  and  Adverse  Possession  Among  Co Owners/Co Sharers 

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

Generally there cannot be any adverse possession by one co-owner against others, until there is ouster or exclusion and the possession of one co-owner becomes adverse to another co-owner from the moment when there is an ouster, i.e. after there is an assertion of a hostile title by one co owner against the other and to the knowledge of the latter

 (AIR 1936 Cal. 106 (Nirmal Chandra v. Mohitosh)

As regards co owners, the law is well settled that, there can be no adverse possession by one co owner, unless there has been a denial of title and an ouster to the knowledge of the other.

AIR 1932 All. 393 (Subah Lal v. Fateh Mohamad)

The Supreme   Court has, very clearly laid down that the possession of one co owner cannot be adverse to the other co owners, unless there is denial of the latter’s right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.

AIR 1956 SC 546 (Mohammed Baqar v. Nairn- un-nissa)

As regards co owners, the law is that there can be no adverse possession by one co owner unless there has been a denial of title and an ouster to the knowledge of the others;   and the same principle applies to the case of a transferee from a co owner, who professedly takes a transfer of the whole property from him. There can be no difference in principle whether a person is the original co owner or has become a co owner by virtue of a transfer. 

AIR 1947 Pat. 99 (Dipnarain v. Pundeo)

For every general rule there are exceptions. They are:

1. In the absence of evidence to show that there is any manner of sharing of profits of the property and with the evidence that one of the sharers has been acting, as if he is entitled to it, such open and exclusive enjoyment of property for a long number of years amounts to ouster of the rights, if any, of the other sharer. (Adichan Ayyan v. Kurumpi - 1975 KLT 293) (Soopi v. Moosa - 1986 KLT 121).

2. Of course, there cannot be any straight jacket formula to decide on the issue of adverse possession and ouster among co owners. 

3. The Supreme Court in 2010 (1) KLT Suppl.  57 (SC) = 2010 Sar Civil 198 (Nelapatla Ramaiah &  Ors. v. Kamatam Bikshamaiah &  Ors.) has held that where properties changed hands on different occasions without any objection being taken at any point of time by the other co owner such possession is hostile and adverse to the intent of the plaintiff.

4. The Supreme Court in the decision reported in (2009 (3) KLT Suppl. 713 (SC) = 2009 Sar Civil 684 - L.N. Aswathmma v. P. Prakash) has held that when a person is in possession asserting to be true owner, even if he fails to prove his title, his possession would still be adverse to the true owner and the two pleas, one ascertaining title and the other setting up of a plea of adverse possession are not inconsistent pleas but only pleas in the alternative.

5. Under the Limitation Act also, the ousted co owner may not be able to recover possession from the other co owner. Where different daughters who jointly succeeded to the estate of a person, one of them excluded the other from enjoyment of the estate for more than 12 years and had also alienated some of the properties, then there is extinction of the right to joint possession under S. 28 of Limitation Act 1908, now S. 27 of Limitation Act, 1963. The right of survivorship which is only an accretion to the right to joint possession is also lost. (AIR 1930 Nag. 142 (Jagatram v. Pital) has laid down that the expression “right to such property” under S. 28 of 1908 Limitation Act (Now 27 of 1963 Act) includes the right to joint possession. A person whose right to recover joint possession is extinguished as per the relevant article in the Limitation Act (Art. 65) cannot elude the extinguishment by filing a suit. 

6. Section 27 of Limitation Act 1963 provides that, at the determination of the period limited by the Act, to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. In (1966 KLT 1084 = 1966 KLJ 597 - G.P. Ribera v. Varghese Kurien) Division Bench has held that if that party, who is not in possession for 12 years and whose suit for possession is barred, is again let into possession, he is not remitted to his old title. The principle is that, when the title of the former owner has been extinguished by prescription, his title is not restored and he will be treated as a trespasser, should he come into possession again.

7. Conduct by way of non-participation in the enjoyment of the profits of the property or absence of objection to the exclusive enjoyment by the other co owner and also denial of one’s own right as a co owner and possession of another to the exclusion of the other heir amounts to clear evidence of ouster as per S. 27 of Limitation Act 1963 and Art. 65.

AIR 1954 SC 337 (Chanabavana Gowd v. Mahabaleswarappa) and  AIR 1963 AP 121 (D.R. Adinarayan Swamy v. Girraju Pappamma) lay down this principle.

8. The above principles have been followed by Division Bench of Kerala High Court in (Ammini Tharakan  v.  Dr. Lily Jacob) decided on 17.10.2013.

9.  The following decision are also of help in this regard. :-

1968 KLT 779 (F.B.) (Cicily v. Sulaikha Beevi).

1969 KLT 121 (D.B.) (Soopi v. Moosa)

1987 (2) KLT 59 (D.B.) (Sainaba Umma v  Moideenkutty)

1985 KLT SN 34 (C.No.50) = ILR 1986 (1) Ker. 391 (P.K. Madhavi Amma v. M.M. Appu Nair).  Ouster need not be violent nor formally be communicated. 

AIR 1926 Cal. 881.  Ouster can be actual or constructive. 

AIR 1928 Cal. 216 at 217,

ILR 46 Bom. 213, AIR 1961 Mysore 244 (para 15), 

AIR 1938 Lahore 367, 

AIR 1919 P.C. 44, 

AIR 1929 Pat. 624, 

ILR 1970 (2) Mad. 634

10. As stated earlier, for every general rule there is an exception.  Ignorantia.

Juris-non excusat.  Ignorance of law is no excuse. This is the basic principle which any law college will teach the beginner in law. But to this also there are exceptions.   It is often said that everybody is presumed to know the law.  But that is not correct statement. There is no presumption in this country that everyone knows the law.   It would be contrary to common sense and reason if it were so.

1979 KLT SN 5 (C.No. 8) SC = AIR 1979 SC 621 at 629 para 6 [M.P.Sugar mills v. State of U.P.] (1846)   2   Common Bench Reports  (C.B.)   (1845 -1856)     2   706  Martinda v. Falkner v. Falkner ( 2 C.B. 719)   is followed in AIR 1986 SC 806 (Union of India v. Godfrey Phillips India Ltd.) though it is used in relation to promissory estoppels.

Even ignorance of law may be held to be sufficient excuse if it were made honestly and in good faith.

18 Cochin Law Reports 8 DB refers to ILR 13 Mad. 269 and ILR 21 Bom. 552.

Regarding Gazette Publication.   The maxim that everybody is presumed to know the law cannot be extended to all events, especially in relation to Gazette Notification, as the same has not support of any legal provision.Section  1 of Evidence Act only says that the court shall presume genuineness of anything in Gazette.   But S. 81 does not say that every citizen knows the contents of Gazette.

Notification

ILR 1989 Karnataka 920 (Para 8) (Union of India v. Sterling Varnishes)  ILR 1993 Karmt. 1548 (paras 12 to 14,16 and 21) Indo Nissan Foods Pvt. Ltd. v. Appraiser of Customs has ruled that accessability to the Gazette, that makes contents   of Gazette   Notification,   an   effective   notification.   A   purported notification; merely printed in the Gazette and kept without the four walls of the Government press would not be available for the public to read it; it cannot result in notifying the contents to the public.  This is a case under S. 25 of Customs Act, 1962.

Similarly publication in gazette is hardly a proper substitute for personal service.

AIR 1972 Mad. 8.

This is followed in AIR 2000 SC 1102 (Union of India v. Ganesh Das Bhojry) and

AIR 1998 SC 668 (ColIector of Central Excise v. New Tobacco Co.)