Appointing Counsellors In Family Courts Mandatory, Failure Will Violate Section 9 Of Family Courts Act & Rules: Patna High Court

The Patna High Court has held that non-appointment of Counsellors in the Family Courts resulting in cases not being sent in conciliation amounts to violation of Section 9 of the Family Courts Act, 1984, and the Rules framed thereunder.

Justice Bibek Chaudhuri said that where there is a violation of the Family Courts (Patna High Court) Rules, 2000, an adversarial justice process cannot be adopted.

“It is needless to say that compliance of Section 9 of Family Courts Act, 1984 and the aforementioned Rules are obligated. If there are no Counsellors appointed by the Government and attached with the Family Courts and the cases are not sent in conciliation, the mandatory provision under the Family Courts Act and rules made thereunder are violated. In violation of the said rules, adversarial justice delivery system cannot be adopted,” the Court said.

The judge referred to Section 9 (duty of Family Court to make efforts for settlement) of the Family Courts Act, 1984, and Rules 10 and 11 (procedure for arriving at settlement) of the Family Courts (Patna High Court) Rules, 2000.

The Court said that the Rules provide for the appointment of Counsellors, referring the cases to Counsellors for amicable settlement and the mood and manner in which the Counsellors shall act.

Justice Chaudhari directed the Registrar General of the High Court to collect and collate a report as to whether Counsellors have been appointed in the Courts of the Principal Judge, Family Court in the State of Bihar.

“If the answer is yes, it is also to be informed about the remuneration of the Counsellors as well as the number of cases they are conciliating daily. After such report final order in the instant revision shall be passed,” the Court said.

It directed the Registrar General to submit the information as sought for within four weeks.

The Court was dealing with a husband's plea challenging order passed by the Family Court last year directing him to pay ₹12,000 per month as maintenance.

It was his case that the Family Court had not complied with the statutory procedure requiring conciliation efforts through court-appointed counsellors before proceeding to adjudicate the dispute.

His counsel argued that the Family Court never took steps to facilitate conciliation, did not appoint a counsellor as prescribed, and therefore, acted in violation of the law.

In the ruling, the Court said that while a reference to mediation was made by the Family Court, there was no material to show that counsellors were appointed in accordance with Rule 10 of the Bihar Family Courts Rules, 2011 or that the conciliation procedure laid out in Rule 11 of the Family Courts (Patna High Court) Rules, 2000 had been followed.

The Court clarified that procedural compliance is not optional under the Family Courts Act. It stated, “It is needless to say that compliance of Section 9 of Family Courts Act, 1984 and the aforementioned Rules are obligated.”

Finding serious procedural lapses, the Court called for systemic clarification.

Pending final disposal of the plea, the Court directed the husband to pay an interim payment of ₹8,000 per month to the wife.

“Without prejudiced to the rights and contentions of the parties, the petitioner is directed to pay Rs. 8,000/- per month to the petitioner as an interim measure from the date of this order within 7th of the succeeding month,” the Court said.

Case Title: Abdul Rehan Khan @ Abdul Raihan Khan v. State of Bihar & Anr.

Case No.: Criminal Revision No. 771 of 2024

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