Following Rules for the Family Courts are observed in the State of Maharashtra

In exercise of the powers conferred by Section 21 of the Family Courts Act, 1984 (66 of 1984), the High Court of Bombay is pleased to prescribe the following Rules for the Family Courts in the State of Maharashtra:-

Short title, commencement and application. –

(1) These Rules may be called the Family Courts (Court) Rules, 1988.

(2) These Rules shall come into force on the date of publication in the Official Gazette.

(3)These Rules shall apply to the Family Courts established in the State of Maharashtra under section 3 of the Family Courts Act, 1984.

(4) Definitions. – In these Rules, unless the context otherwise requires,-

(а) “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 Counsellor” means the principal counsellor appointed by the High Court. Where principal counsellor is not appointed, it shall include counsellor 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

(5) Institution of Proceedings. – 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.

(6)Filing of Petitions in duplicate. – 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 Counsellor forthwith.

(7)Summons of Respondent. – 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.

(8) Name and address of the party or of the Advocate to be stated in every process.’ – The name and address of a party or of the advocate 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.

(9J Summonses, etc. how attested and signed. – 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.

(10) Sealing of Summons, rules, decree. – The seal of the Court shall not be affixed to any Writ of Summons, Rule, 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 or his Advocate on record is subscribed thereto. The date of the sealing shall be inserted below the signature of the sealer.

(11) Returnable date of Summons. – 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.

(12) Mode of Service of Summons.- A Writ of Summons shall be amended 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.

(13) Write of Summons and other process not to be served on Saturdays, Sundays and Holidays. – 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.

(14) Service at advocate’s office not to be effected after 6 p.m. on week days and 1.30 p.m. Saturdays. – No. Writ of Summons or other process shall be served at the Office of an Advocate after 6 p.m. on week days and 1-30 p.m. on Saturdays.

(15) Undertaking by advocate to accept service. – A Writ of Summons need not be served on a respondent personally, if his advocates 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 without plead his client’s case in Court without obtaining the leave of the Court as prescribed under Rule 37.

(16) Only file writ may be served, when advocate appears for several respondents. – Where an Advocate undertakes in writing to accept service and to file a Vakalatnama on behalf of more respondents than one, it shall be sufficient to serve only one Writ of Summons on the said advocate on behalf of his clients.

(17) Copy of petition to be furnished to the respondent. – 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.

(18) Power to direct issue of fresh summons. -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 declared by the Petitioner or his Advocate on record and be examined, signed and sealed by the proper Officer.

(9) Proof of service of summons.- Unless the Court shall otherwise order the service of it 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.

(20) When service through Govt. – 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.

(21) Substituted service. – 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,

(22) Dismissal of petition if summons not served within six months. – 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 however, place the petition on board for dismissal. The Registrar shall notify such petitions on his notice board one week before they are placed with the board for dismissal.

Proceedings in Court

(23) Directions on the returnable date. – On the returnable date of the Summons, the petition shall be placed for directions before a judge of the Family Court to whom the work may be assigned by the Principal Judge of the Family Court.

(24) Date of giving directions. – One day in a week shall be designated by the Principal Judge for the giving of such directions.

(25) Presence of Counsellor in Court. – 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.

(26) Direction to attend counsellor. – When giving 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.

(27) Selection of counsellor. – Such counsellor shall 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.

(28) The procedure before the Counsellor, 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 counsellor to the Family Court shall also be as prescribed in the said Rules.

Hearing of Petitions in Court

(29) Filing memorandum 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 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.

(30) Meeting before Registrar. – At the meeting so fixed the Registrar shall fix a date of hearing after consulting both the parties.

(31) Ascertaining lime to be taken in hearing. – 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 tile following consecutive working days also if the matter is likely to take more than a day.

(32) Consequence of absence before the Registrar. – 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.

(33) Placing the petition on the board of the Court. – 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 allocated to the parties shall also be indicated on the board.

(34) Adjourned Role of hearing. – 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.

(35) Registrar cannot alter date. – The Registrar shall not ordinarily alter the date when the date has been fixed in the presence of both the sides.

(36) Adjournment by the Court. – 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 manner.

(37) Permission for Representation by a Lawyer. – The court may permit the parties to be represented by a lawyer in Court. Such permission may be granted if the are involves complicated questions of law of 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.

(38) Time for making application. – 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.

(39) Application not to be entertained at the hearing. – Such an application shall not be entertained after the petition is placed for hearing on the daily board of the Court, unless there are exceptional circumstances justifying such late application.

(40) Independent legal representation of a minor. – 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.

(41) The Court may appoint lawyer amicus curiae to assist the court in the discharge of its duties.

(42) Tape-recording of evidence. – Evidence given before the court shall be tape- recorded.

(43) Memorandum of evidence. – 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.

(44) Transcript of tape-recorded evidence. – In the event of any appeal or revision being filed before the High Court, a party may within thirty days thereafter, apply to the court for transcription of the tape-recorded evidence. Such transcription shall be supplied to the party concerned on payment of prescribed fees.

“44(A) 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 Rule 37 to 40 (both inclusive) of Order 21 of the Code of Civil Procedure shall not be resorted to.”

(45) Provisions of C.P.C. and Cri. P.C. to apply. – 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.

(46) 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

(47) Interim applications. – All interim applications to the Court shall be separately numbered as interim Applications

(48) Interim applications while matter is pending before counsellor. – An interim application may be made even while the matter is pending before a counsellor.

(49) Report from the Counsellor. – The court may ask the counsellor to submit an interim report for the purposes of such an application before deciding an interim application. The Family Court Rules. 1987 resulting to reports to be submitted by counselors, shall mutalis mutandis apply to interim reports also.

Guardianship

(50) Applications for Guardianship. – All petitions for guardianship other than applications over which the High Court has jurisdiction shall be filed before the Family Court.

(51) Contents of application. – 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 trainee social worker. A list of such agencies and/or persons shall be prepared by the Principal Judge and Principal Counsellor in consultation with the High Court.

(52) Home Study in respect of application by a foreigner. – 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.

(53) Contents of Petition. – 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 a photograph of the child. Such report shall he 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.

(54) Application by Foreigners. – When a Petitioner appearing 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.

(55) Adoption under the law of the country where the foreigner resides. – 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.

(56) Bond. – 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 if any difficulty.

(57) Financial security of the minor. – While granting a petition for guardianship, the court may pass such orders as it may deem proper for the financial security of the minor.

(58) Consent of natural mother. – When the child proposed to he 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 scaled cover.

(59) Affidavit of the institution. – 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.

(60) Attempts for placement in India. – 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 of 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 coordinating Agency or any other similar organisation working for the placement of children in Indian Homes.

(61) Application by a related person. – When the proposed guardian is related to the Child, the Court may dispense with any of the above previsions.

(62) Form of Order. – 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.

(63) Copy to be forwarded to Ministry of Social Welfare. – 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. Bombay 400032.

(64) 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.

(65) 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 or Reports thereon to the court in such manner as the court may deem fit.