Family Court cannot determine guardianship and custody of a minor child, unless it adheres to mandatory procedures and principles of natural justice

While determining the question of custody of the minor child, Family Court is obliged to inquire into the matter as per the procedure prescribed by law. It does not have plenary powers to do away with the mandatory procedural requirements in particular, which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides. The nature of inquiry before the Family Court is, indeed, adjudicatory. It is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statue in that regard and also the foundational principle of fairness of procedure and natural justice.

In the case before Court, the Husband had filed the petition seeking custody of the minor child. Admittedly, no written statement was ever filed by the wife to oppose the said petition. Strangely enough, there was a culmination of proceedings in favour of wife without notice to husband and waiting for service of notice already issued on former application.

There is no semblance of the procedure followed by the Family Court and the entire matter is disposed of in a short span of fewer than eight days after filing of an application by wife, claiming herself to be the sole, exclusive and absolute guardian and custodian of the minor child. This, in the opinion of Justice A.M. Khanwilkar, amounts to substantial non-compliance of prescribed mandatory procedure and infraction of principles of natural justice. It is not a mere technical irregularity to be overlooked. Ex parte judgment and orders passed by the Family Court, a declaration that wife respondent is the sole, exclusive and absolute guardian and custodian of the minor child are set aside by Supreme Court.