ORDER

This Civil Revision Petition has been preferred challenging the docket order passed by the learned Principal Family Court, Chennai dated

26.04.2022 in H.M.O.P. No.2357 of 2015.

2. The Revision Petitioner is the respondent witness No.3. The 1st respondent is the husband and the 2nd respondent is the wife. The original petition in H.M.O.P. No. 2357 of 2015 was filed by the 1st respondent husband against the 2nd respondent wife for dissolution of marriage. During the enquiry on the side of 2nd respondent wife, three witnesses were examined. This Revision Petitioner was examined as R.W.3. He was examined in chief on 20.10.2021, 22.10.2021, 26.10.2021, 30.10.2021, 18.11.2021, 06.12.2021, 16.12.2021, 28.12.2021, 29.12.2021, 01.03.2022 and 10.03.2022. On 10.03.2022, the matter was adjourned to 21.03.2022 for further cross-examination of R.W.3. Since the courts were functioning through video conference, the examination of witnesses was not taken place for some time and the cases were being adjourned. On 26.04.2022, a docket order was passed to issue witness warrant to R.W.3/Revision Petitioner for his non-appearance. Aggrieved over that, this Civil Revision Petition has been filed.

3. The learned counsel for petitioner submitted that for conduction of the cases before the Family Court, generally, the provisions of Civil Procedure Code is applicable. Hence, the learned Family Court does not have any powers to issue witness warrant to a witness for his non- appearance. The learned counsel for petitioner drew the attention of this court to Order XVI Rule 5 and submitted that the procedure contemplated under Order XVI Rule 10 should be observed, if the witness does not attend the court without any lawful excuse. In support of his above submissions, he also cited the decision rendered by the High Court of Madhya Pradesh in a Writ Petition No.2039 of 2006 in the case of Vinod Tiwari vs. Employees Provident Fund Organisation and others. In the said judgment, the High Court of Madhya Pradesh has held as follows:-

“In the absence of any provision in either the Act or the Civil Procedure Code for detention of the petitioner in civil prison for failure to produce the records summoned to be produced, the impugned order dated 17.04.2006 passed by the Assistant Commissioner is without the authority of law. Since the petitioner's right to personal liberty under Art.21 of the Constitution has been grossly violated by the impugned oder, we quash the impugned order in so far as it directs detention of the petitioner in civil prison for failure on his part to produce the records summoned.”

By citing the above judgment, the learned counsel for the petitioner further submitted that only when the witness deliberately avoids to make his appearance before the court, the coercive steps contemplated under Order XVI Rule 12 can be resorted to.

4. The learned counsel for respondent also conceded the fact that as per the procedure contemplated under Sec. 10 of the Family Court Act, the Family Court Judge is expected to adopt the Civil Procedure Code while conducting enquiry in the H.M.O.P. proceedings.

5. The Family Court Judge is not empowered to issue witness warrant for the default of a witness in making his appearance for examination. The procedure to be followed by the Family Court for conducting the case before the Family Court is set out under Sec.10 of the Family Court Act and it reads as under :-

Sec. 10 of the Family Court Act “

Procedure generally.-(1) Subject to the other provisions of this Act and rules, the provisions of the Code of Civil Procedure, 1908(5 of 1908), and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974), before a Family Court and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisi