Code of Civil Procedure, 1908 (CPC)
Order XXXII-A CPC: Suits Relating to Matters Concerning the Family
A family dispute is not an ordinary civil dispute. The parties will have to deal with one another after the decree, children are affected by an outcome they had no part in choosing, and a victory can be worse than a settlement. Order XXXII-A of the Code of Civil Procedure, 1908, inserted by the Amendment Act of 1976, therefore changes four things about how such a suit is conducted: the court must try to settle it, the hearing may be held in camera, the court may call in a welfare expert, and the whole proceeding is oriented towards the welfare of the family. These notes cover the Order and its relationship with the Family Courts Act, 1984.
What Order XXXII-A changes, set against how an ordinary civil suit is conducted
1. What the Order Applies To: Rule 1
§ Order XXXII-A Rule 1 with its Explanation (in substance) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family. Explanation. This Order applies to the following suits and proceedings, namely — (a) a suit or proceeding between parties to a marriage relating to the decree of nullity of marriage, restitution of conjugal rights, judicial separation, dissolution of marriage or a declaration as to the validity of a marriage or as to the matrimonial status of any person; (b) a suit or proceeding between parties to a marriage with respect to the property of the parties or of either of them; (c) a suit or proceeding for a declaration as to the legitimacy of any person; (d) a suit or proceeding for maintenance; (e) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family under a disability. |
The definition covers the whole field of family litigation except succession as such, and the key to it is that the relationship between the parties, rather than the nature of the relief, brings the Order into play. A suit about property between spouses falls within clause (b) even though it is, in form, an ordinary property suit.
2. The Duty to Assist Settlement: Rule 3
§ Order XXXII-A Rule 3, CPC 1908 (in substance) (1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, 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 proceeding 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) shall be in addition to and not in derogation of any other power of the Court to adjourn proceedings. |
§ Four features of the duty Each distinguishes it from the general position: • It is a duty, not a discretion. The words are an endeavour shall be made by the Court in the first instance. Under Section 89 the court considers whether elements of a settlement exist; here it must actively try. • In the first instance. The attempt comes before the trial, not after the evidence has hardened positions and exhausted goodwill. • Adjournment is expressly authorised. Sub-rule (2) lets the court stop the proceeding to let a settlement be attempted, and sub-rule (3) makes clear this is additional to its ordinary powers, so such an adjournment is not counted against the party. • Consistent with the nature and circumstances of the case. The qualification matters: the court is not to press settlement where it would be inappropriate, as in cases involving cruelty or a real risk to a party. |
3. In-Camera Proceedings: Rule 2
§ Order XXXII-A Rule 2, CPC 1908 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. |
The rule is short and its force is in the two verbs. May where the court desires it; shall where either party does. Privacy in a family proceeding is therefore not a concession the court grants but a right the party can insist on, and a single party's request is enough. The rule is an express departure from Section 153B, under which the place where a civil court is held is deemed an open court to which the public may have access, and the reason is plain: the material in a matrimonial or custody proceeding is intimate, and its publication can injure the parties and the children far beyond the dispute.
4. Assistance of a Welfare Expert: Rule 4
§ Order XXXII-A Rule 4, CPC 1908 (in substance) In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of 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 purpose of assisting the Court in discharging the functions imposed by Rule 3. |
§ Three points on Rule 4 The provision is narrower and more purposive than it first appears: • The purpose is settlement, not evidence. The expert is secured to assist the court in discharging its functions under Rule 3, that is, in the endeavour to settle. He is not a witness, and his involvement is not a substitute for proof. • Who may be secured. Any person the court thinks fit, related to the parties or not, and preferably a woman where available, including a person professionally engaged in promoting the welfare of the family, such as a counsellor or social worker. • It anticipates the counsellor system. The provision prefigures the counsellors attached to Family Courts under Section 6 of the Family Courts Act, 1984, and in practice the two work the same way. |
§ Rule 5 and the wider duty Rule 5 completes the Order: in every suit or proceeding to which it applies, the court shall have due regard to any provision of law relating to the maintenance or welfare of the family and shall, so far as possible, conduct the proceedings consistently with that object. The effect is to make the welfare of the family an orienting principle for the conduct of the whole proceeding, not merely a factor in the final decision. It governs how the court manages the case, what it permits by way of cross-examination, and how it exercises its discretions. |
5. Order XXXII-A and the Family Courts Act, 1984
Basis | Order XXXII-A, CPC | Family Courts Act, 1984 |
|---|---|---|
What it is | A set of procedural modifications applied by an ordinary civil court to a family matter | A statute establishing separate Family Courts with exclusive jurisdiction where they are constituted |
Settlement | Rule 3: the court shall endeavour in the first instance to assist the parties in arriving at a settlement | Section 9: the same duty, expressed in substantially identical terms |
Privacy | Rule 2: in camera if the court desires, and shall be so held if either party desires | Section 11: the same provision |
Expert assistance | Rule 4: the court may secure the services of a welfare expert to assist in the settlement effort | Section 6: counsellors and other officers are attached to every Family Court |
Legal representation | Unaffected; parties appear through pleaders as in any suit | Section 13: no party is entitled as of right to be represented by a legal practitioner, though the court may seek a legal expert as amicus curiae |
Where each operates | In a district court or other civil court dealing with a family matter where no Family Court has been established | In the areas for which Family Courts have been established, to the exclusion of other courts |
The relationship is therefore one of continuity. Order XXXII-A was the Code's first answer to the problem in 1976; the Family Courts Act carried the same ideas into a dedicated forum in 1984. Where a Family Court exists, it has exclusive jurisdiction over the matters in Section 7 of that Act; where one does not, an ordinary civil court applies Order XXXII-A and reaches substantially the same procedure.
6. Landmark Points
- Order XXXII-A Rule 1 with its Explanation. The Order applies to matrimonial proceedings, property disputes between spouses, declarations of legitimacy, maintenance, and guardianship or custody of a minor or a member of the family under a disability.
- Rule 2. Proceedings may be held in camera if the court so desires, and shall be so held if either party so desires, departing from Section 153B.
- Rule 3. The court shall in the first instance endeavour to assist the parties in arriving at a settlement, and may adjourn the proceeding where there is a reasonable possibility of one.
- Rule 4. The court may secure the services of any person, preferably a woman where available, including one professionally engaged in promoting the welfare of the family, to assist in that endeavour.
- Rule 5. The court shall have due regard to the law relating to the maintenance and welfare of the family and conduct the proceedings consistently with that object.
- Family Courts Act, 1984, Sections 6, 9 and 11. The same ideas carried into a dedicated forum, with counsellors, a duty to settle, and in-camera proceedings.
7. Frequently Asked Questions
Which suits does Order XXXII-A apply to?
Suits and proceedings relating to matters concerning the family: matrimonial proceedings between parties to a marriage, disputes about their property, declarations of legitimacy, maintenance, and the guardianship or custody of a minor or other member of the family under a disability.
Is the court obliged to attempt a settlement?
Yes. Rule 3 provides that an endeavour shall be made by the court in the first instance, where it is possible consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement. It is a duty rather than a discretion.
Can a family proceeding be heard in camera?
Yes. Under Rule 2 the proceedings may be held in camera if the court so desires, and shall be so held if either party so desires. A single party's request is enough, so privacy here is a right rather than a concession.
Who is a welfare expert under Rule 4?
Any person the court thinks fit, related to the parties or not, preferably a woman where available, including a person professionally engaged in promoting the welfare of the family. The purpose is to assist the court in its settlement effort under Rule 3, not to give evidence.
Can the court adjourn a family suit to allow a settlement?
Yes. Rule 3(2) allows the court, where at any stage it appears that there is a reasonable possibility of a settlement, to adjourn the proceeding for such period as it thinks fit, and Rule 3(3) makes this power additional to its ordinary powers of adjournment.
How does Order XXXII-A relate to the Family Courts Act, 1984?
They carry the same ideas. Order XXXII-A applies these modifications in an ordinary civil court where no Family Court has been established; where one has, it has exclusive jurisdiction and the corresponding provisions of that Act, on counsellors, settlement and in-camera hearings, apply instead.
8. Related Topics in This CPC Series
- Order XXXII: Suits by Minors and Persons of Unsound Mind
- Section 89: Settlement of Disputes Outside the Court
- Compromise of a Suit under Order XXIII Rule 3
- Execution of a Decree for Restitution of Conjugal Rights