SYMBIOSIS INTERNATIONAL UNIVERSITY,

SCHOOL OF LAW, HYDERABAD

PROJECT ASSIGNMENT
ON
FAMILY LAW- I
TOPIC: Family Courts Act,1984
SUB TOPIC: Loopholes in the Family Courts Act
and their solutions.
COURSE TEACHER: Prof.Ambrina Khan
SUBMITTED BY: NAME-Nishant Bahuguna
ROLL NO-15010323004
SEMESTER-3rd

ACKNOWLEDGEMENT
I would like to express my sincere
gratitude and indebtedness to
_______Prof.Ambrina_Khan______ for her
enlightening lectures on Family Law. I would also
like to express my sincere gratitude to our
teaching staff for guiding me the path towards
gaining knowledge. I would also like to thank
Symbiosis Law School, Hyderabad, library for the
wealth of information therein. I would like to
thank Library Staff as well for their co-operation.
I would also like to thank my batch
mates and seniors who inspired, helped and
guided me in making this project. I am grateful
to some of my seniors for their incredible
guidance and support.

TABLE OF CONTENT
TOPIC

PAGE NO

Abstract

Research Methodology

Introduction

6-8

Procedure followed by family

courts

8-9

Issues of concern

9-10

Role of a marriage counsellor

11

Nature and aspect of cases

handled

12-13

Issues faced during counselling

13-15

Cure to above issues

15-16

Conclusion

17

Bibliography

18

ABSTRACT
This research paper is mainly based on the
inefficiencies of the Family Court Act,1984 and their
cure. No doubt the development of these courts was a
great initiative by the judiciary as it has helped greatly
in the reduction of all the backlog of pending cases in
the courts. But there are issues which have become a
topic of great controversies. This papers major
objective is to highlight these problems and suggest
ways in which we can solve such follies in the system.
There are issues like alimony which have caused a lot
of harassment to various families throughout the
country. This research paper also deals with the
injustice which is caused to one gender because of all
the gender biased laws. The more youthful era, being
made a substitute in the changing times because of the
resulting social war amongst Conservatives and
Liberals, squanders its helpful youth in the regions of
the prosecuting passages of the family courts, criminal

courts and judge courts holding up in long lines being

eager of getting equity.

RESEARCH METHADOLOGY
SCOPE AND OBJECTIVE OF THE STUDY
The objective of this study is to analyse all the
deformities in the present family courts and the
discomfort they have caused. This papers major
objectives are to find the solutions of the various
problems.
The readers will get to know about the various key
provisions laid down by the family court act,1984. This
paper checks whether family courts are fulfilling their
duties as per said .The scope of this study is to
scrutinise and find the solutions to all the loopholes in
this Act.

RESEARCH METHADOLOGY
The methodology adopted is largely analytical and
descriptive. Reliance has been placed largely on
secondary sources like books and articles. The lectures
and classroom discussion have been rich with valuable
pointers and gave direction to the research.

RESEARCH QUESTIONS
1. What are the procedures followed by the family courts and
advantages of a conciliatory approach ?
2. What is the role of marriage counsellors?
3. Are the family courts actually working towards the fulfilling of
the goals set by them?

INTRODUCTION
It is not unknown that a gaping loophole in the Indian
Judiciary is the backlog of cases. The number of cases
being filed in the Supreme Court is consistently on the
rise. 34683 cases were filed in Supreme Court in the
year 1999, whereas, 70350 were filed in the year 2008,
the increase being about 103% nine years. There are
cases dealing with a broad spectrum of issues such as
family matters and property which continue for
generations. Such cases continue for atrocious periods
of time, ranging from 7 years to 30 years. In such a
scenario, the channelling of cases to different courts set
up specially for this purpose not only ensures their
speedy disposal, but also ensures that the cases, being
dealt by with experts in courts specially set up for this
purpose; are dealt with more effectively. The saying
that "justice delayed is justice denied then becomes
relevant to take into consideration.
Further, pertinent to note here is that Marriage as an
institution has become the subject of great judicial
scrutiny. There are a number of judicial provisions
dealing with marriage and its various aspects. The
result is that, in addition to the various advantages that
6

these legal provisions may provide; the privacy of this

institution has been threatened. As per studies
conducted in Mumbai and Delhi, 40 % of marriages are
heading towards divorce. There are also cases of
misuse of provisions like Section 498A of the Indian
Penal Code, Protection of Women from Domestic
Violence Act, Section 125 Criminal Procedure Code,
Child Custody laws to name a few. There are issues like
alimony which become the topic of great controversy
and cause harassment to families. What further
becomes a problem is that personal issues get
intertwined with the legal issues and lead to the
unnecessary prolonging of the disposal of these cases.
The younger generation, being made a scapegoat in
the changing times due to the ensuing cultural war
between Conservatives and Liberals, wastes its useful
youth in the precincts of the litigating corridors of
the family courts, criminal courts and magistrate courts
waiting in long queues being expectant of receiving
justice.
The Family Courts Act, 1984 was part of the trends of
legal reforms concerning women. Because of the
building pressure from various institutions lobbying for
the welfare of women all over the country, the Act was
expected to facilitate satisfactory resolution of disputes
concerning the family through a forum expected to
work expeditiously in a just manner and with an
approach ensuring maximum welfare of society and
dignity of women. Prevalence of gender biased laws
and oppressive social practices over centuries have
denied justice and basic human rights to Indian women.
The need to establish the Family Courts was first
emphasized by the late Smt. Durgabai Deshmukh. After
a tour of China in 1953, where she had occasion to
study the working of family courts, Smt. Deshmukh
discussed the subject with certain Judges and legal
7

experts and then made a proposal to set up Family

Courts in India to Prime Minister Pt. Jawaharlal Nehru.
To this background, a significant development has been
the recent setting up of the Family Court in Delhi.
Though such courts have been set up and are
functioning in other states, the setting up of a family
court in the Capital is a significant development and a
step which was necessary to be taken. The main
purpose behind setting up these Courts was to take the
cases dealing with family matters away from the
intimidating atmosphere of regular courts and ensure
that a congenial environment is set up to deal with
matters such as marriage, divorce, alimony, child
custody etc. As mentioned earlier, an effective way of
tackling the problem of pendency is to improve the
efficiency of the system rather than changing the
system altogether. A significant step is to make use of
the available human resource. These family courts at
Delhi are equipped with counsellors and psychologists
who ensure that the disputes are handled by experts
who do not forget that while there may be core legal
issues to be dealt with; there is also a human and
psychological dimension to be dealt with in these
matters. The role of the counsellors is not limited to
counselling but extends to reconciliation and mutual
settlement wherever deemed feasible.

Procedure followed by the family courtsadvantages of a conciliatory approach.

The Family Courts are free to evolve their own rules of
procedure, and once a Family Court does so, the rules
so framed over ride the rules of procedure
8

contemplated under the Code of Civil Procedure. In fact,

the Code of Civil Procedure was amended in order to
fulfil the purpose behind setting up of the Family
Courts.
Special emphasis is put on settling the disputes by
mediation and conciliation. This ensures that the matter
is solved by an agreement between both the parties
and reduces the chances of any further conflict. The
aim is to give priority to mutual agreement over the
usual process of adjudication. In short, the aim of these
courts is to form a congenial atmosphere where family
disputes are resolved amicably. The cases are kept
away from the trappings of a formal legal system. The
shackles of a formal legal system and the regular
process of adjudication causes unnecessary prolonging
of the matter and the dispute can worsen over time.
This can be a very traumatic experience for the families
and lead to personal and financial losses that can have
a devastating effect on human relations as well. This
again points to the importance of having guidance
counsellors and psychological experts to deal with such
matters.
The Act stipulates that a party is not entitled to be
represented by a lawyer without the express permission
of the Court. However, invariably the court grants this
permission and usually it is a lawyer which represents
the parties. The most unique aspect regarding the
proceedings before the Family Court are that they are
first referred to conciliation and only when the
conciliation proceedings fail to resolve the issue
successfully, the matter taken up for trial by the Court.
The Conciliators are professionals who are appointed by
the Court. Once a final order is passed, the aggrieved
party has an option of filing an appeal before the High

Court. Such appeal is to be heard by a bench consisting

of two judges.

Issues of concern- are the Family

Courts functioning towards fulfilling their
purpose?
The Family Courts' main purpose is to assist the smooth
and effective disposal of cases relating to family
matters. However, like any other system there are
certain issues which become a matter of concern when
it comes to the working of these courts. One such issue
is that of continuity. For example, in the family courts at
Tamil Nadu, the counsellors are changed every three
months. Thus, when cases stretch for a period of time
which is longer than this, the woman or the aggrieved
person has to adjust with new counsellors and their
story has to be retold several times.
A major drawback of the Family Courts Act happens to
be that it doesn't explicitly empower Courts to grant
injunctions to prevent domestic violence. While there
has been progress, viz the enactment of the Protection
of Women from Domestic Violence Act, 2005 which now
extends to punishing women for acts of violence as
well; there are still issues of jurisdiction to be tackled. It
must be understood that the Family Courts Act has to
be read in totality i.e. in accordance with the provisions
in other laws, for example, the Civil Procedure Code on
matters of jurisdiction.
Since the Family Court has restrictive jurisdiction and
does not have the power to decide issues of contempt,
people do not seem to take the court as seriously as
they would a magistrate or a city civil court. Further, it
was laid down in the Family Courts Act that the majority
of judges should be women. However, this provision
10

has not been complied with. In the course of the

workshop organised in March 2002 by the National
Commission for Women, it was noted that there were
only 18 women judges till then in the Family Courts in
India out of 84 judges in all the 84 courts that existed
at that time
Government is empowered to make rules prescribing
some more qualifications. Apart from prescribing the
qualification of the Judges of Family Courts, the Central
Government has no role to play in the administration of
this Act. Different High Courts have laid down different
rules of the procedure. However, this lack of uniformity
could also be one of the reasons behind the fact that
family disputes are still being heard by civil
courts. Family courts also need to align themselves with
women's organizations and NGOs dealing with the
welfare of families, women and children.
Another matter of confusion is that the Act, by virtue of
Section 13 provides that the party before a Family
Court shall not be entitled as of right to be represented
by a legal practitioner. However, the court may, in the
interest of justice, provide assistance of a legal expert
as amicus curiae. This is an example of which the
objective behind the family court is defeated due to the
procedural lapses. The fact that the proceedings are
conciliatory does not relieve them of the complicated
legal issues which may be involved in the family
dispute. The question is whether a lawyer's
participation will be useful or detrimental to the
performance of a family court. That is the crucial issue.
It was suggested at the workshop that the Women's
Commission should consider whether an amendment
could be proposed to allow participation of lawyers
subject to a proviso giving power to the court to
terminate his vakalatnama if he uses delaying tactics
11

by unnecessary adjournments. If such control is given

to the court the lawyers will not be able to get
adjournments. Further, a lay person may be totally
unaware of the legal jargon that invariably comes into
play during the proceedings.
Further, the substantive aspect of the law cannot be
ignored because it is what cases are made of. A
practical example of a problem with the substantive law
is that many times, the husband in a divorce cases
resorts to reconciliation mainly because he wants to
escape the responsibility of giving maintenance to his
wife.

Role of Marriage Counsellors

The post of Marriage Counsellor was created,
enacted, legalized and introduced by the Family
Courts Act, 1984, in India and provisions were made
to conduct independent proceedings of therapeutic
counselling before the Marriage Counsellor to settle
the matters amicably before initiating trial in the
court.5 After the establishment of the Family Courts
at Mumbai in 1989, all matrimonial disputes from City
Civil Courts were transferred to the Family Court and
counsellors in the City Civil Courts were appointed as
Marriage Counsellors in the Family Court at Bandra,
Mumbai. The Marriage Counsellor is the mandatory
first point of contact for all parties entering the family
court. Under the counsellors jurisdiction, each party
is given the opportunity to voice their concerns
wholly. During the course of the counselling sessions,
12

the counsellor identifies the detrimental emotional,

social and physical effects caused due to strains in
personal affairs. The Marriage Counsellor, over 3 5
sessions attempts to assist towards a reconciliation
of the parties involved, without the presence of any
advocates. If reconciliation fails, the marriage
counsellor works towards an amicable settlement of
the issue, with mutual consent.6 The Marriage
Counsellor begins the interaction with the client
through an intake sheet. This intake sheet contains
the demographic background of the parties involved,
and also elucidates basic reasons for approaching the
legal system. Further, the Counsellor documents the
subsequent interactions with the parties involved,
thus providing a rich source of processes and
conclusions to all cases.

Nature of issues and types of cases handled.

One of the aspects of the discussion related to the
types of cases seen in the various courts. Here, there
was an agreement between the group members on
the broad nature of issues arising. Across states,
counsellors reported that the aim of the counselling
was aimed more at reconciliation of the dispute. It
was only when reconciliation was seen to fail that
separation was addressed. Most of the issues related
to marital discord and custody, maintenance,
property, and restitution of conjugal rights. Dowry
related issues were mentioned across the board. In
cases where dowry issues were conflated with
domestic violence issues, the problems escalated and
13

the chances of reconciliation became more remote.

Many counsellors hinted at an increase in the number
of cases where there was a criminal case also
registered under Section 498A of the Indian Penal
Code. A National Crime Report Bureau report of 2012
highlighted that the number of 498A cases were
1,06,527 in 2012, 21.1% higher than the average of
the last 5 years indicating a similar trend.
The nature of cases mentioned by the counsellors
reflected the changes that were taking place in India
as a result of changes in social beliefs, norms and
mores. Counsellors mentioned that the number of
cases that mentioned homosexuality in one of the
partners was on the rise. Cases being filed for
maintenance were seen more often, as also were
live-in relationships. Issues related to problems
arising out of alcohol abuse were seen increasingly,
as also were extra-marital relationships. Problems
arising due to one of the partners not wanting to
have children were mentioned. Yet another
increasingly seen phenomenon was conflict arising
due to infertility in a partner. Some of the newer
concerns that were mentioned related to the use of
technology in the form of mobile phones and
internet, which was mentioned as an increasing
cause of problems in couples. Desai and Bhujbal in
2004, analyzed the reasons for couples seeking
separation and found that most couples stated
temperamental differences, financial issues, family
interference, dowry, and adultery as reasons.
However, a decade later there seem to be additional
aspects that are influencing couple relationships in
14

India and there is a need to review these changes. In

States such as Kerala and Maharashtra, counsellors
mentioned that there was an increase in the number
of litigants from the Muslim community who were
opting to file for divorce in the Court. This legal
approach was seen in addition to the traditional
religious methods of obtaining divorce. The reason
for this was attributed to the documentation that the
Courts provided, which was demanded as evidence
indicating dissolution of a marriage.

Issues faced during counselling

Infrastructural issues.
Infrastructural problems were identified repeatedly by
the counsellors. Problems related to lack of space for
counselling, inadequate seating arrangements for the
counsellors and the clients, no separate space for
working with children, and poor toilet facilities,
hampered the functioning of counsellors across states.
Other infrastructural issues related to inadequate and
insufficient secretarial support. Caseloads of the
counsellors varied; in Kerala and Maharashtra,
counsellors saw as many as 12-15 cases in a day. This
was in contrast to states like Chhattisgarh, Manipur and
UP where the counsellors were not allowed to see more
than three cases in a day.

Lack of awareness about counselling

A major challenge faced by the counsellors in the
Court related to a general ignorance about the
15

nature, process and benefits of counselling among

multiple stakeholders in the system, from the judges,
the advocates, the clients, and the family members
of the clients. This resulted in reluctance of the
clients to approach the counsellor and speak openly
on issues that needed to be addressed. Judges and
advocates were poorly informed about the
counselling process, and as a result did not see the
necessity for all cases to be mandatorily seen by the
counsellor. Additionally, this resulted in poor access
of the counsellors to the judges to discuss sensitive
cases. Within the court system, there was a hierarchy
operating, which privileged the judges and the
advocates over the counsellors. In some states,
counsellors mentioned that they faced verbal abuse
from the judges and advocates. These problems
related to judges and advocates were mentioned
more by counsellors from states other than
Maharashtra. Judges from Maharashtra were seen as
being more sympathetic and aware about counsellors
and counselling needs, as compared to the judiciary
from other states.

Attitude towards womens issues

Many counsellors expressed that judges and
advocates were insensitive about womens issues.
Many judges emphasised reconciliation rather than
separation; which could be deleterious to the women
in the cases. There were very few women judges,
16

which added to the problem. Reports on family courts

functioning have emphasized a need to evolve a pro
woman framework for marriage counseling to be
adopted by the marriage counselors. Agnes
highlights that considering the patriarchal nature of
Indian society, a neutral stand by the counsellors
could get translated into an anti woman posture
and there is a requirement for periodic training to
evolve gender sensitive, women oriented
counselling in the family courts.
Cure to all the above issues
It is the authors strong belief that counselling should
be mandatory for all litigants, and not be left to the
discretion of the judges, as was the practice in most
courts across the country. There was a need for
increasing the number of courts and judges handling
marriage and family related cases, which were felt to
be inadequate given the increase in the population and
the number of cases being filed. Alongside was the
necessity for having trained counsellors who could
function in the courts. Its high time that there should
be appointment of separate Judges to hear family
related disputes. The reasoning, behind this, was that
criminal cases were of a different nature, as compared
to those heard in the Family Court, and therefore
required a different set of skills, as compared to a
custody battle or a case concerned with domestic
violence.
Efforts should be made by Family Courts to ensure that
counsellors were appointed, such that the case load
was not disproportionate. Alongside, the need to
17

establish some uniform standards and criteria with

regard to the qualifications of the marriage counsellors
across states was clearly expressed. There needed to
be uniformity in the job profile and description of a
counselor; which would help in establishing consistency
across states on service conditions, remuneration and
infrastructural requirements. There was a need for
developing a code of conduct or manual with
prescribed rules and regulations to be followed by all
the States. There was a need for better coordination
and communication between the judges, lawyers,
advocates and counselors. Systems of centralized
accreditation and licensing of the marriage counsellors
would be beneficial for the regulation and growth of the
profession. At present, apart from Kerala and
Maharashtra, there are no prescribed requirements in
place about who can be a marriage counsellor. For the
development of the counsellors, there was a need for
in-service training through collaborations with
academic institutions. Refresher courses and exchange
programs and visits to courts in other states would help
counsellors orient themselves about best practices
being followed elsewhere. Training for gender
sensitization was a felt need expressed for training for
all court functionaries counsellors, lawyers and
judges.
Awareness and sensitization on local and regional
cultural issues was considered as important, and
needed to be done on a regular basis. Understanding
the changing psychosocial contexts with the needs,
situations and dilemmas confronting families was
important for the counsellors. Establishing a network of
18

marriage counsellors and having regular conferences

would go a long way in allowing for discussions on
practice across settings. This would afford valuable
opportunities for sharing and learning. Organizing an
event like the present National Convention could be
done on an annual basis, in different locations.

CONCLUSION
It is obvious that the setting up of these family courts
was a dynamic stride so far as lessening the
overabundance and arranging off cases while
guaranteeing that there is a viable conveyance of
equity goes. In any case, as previously stated, there
are still matters of concern which torment these
courts. The issues identifying with the working of
these courts is to be found altogether, as cited in the
illustrations identifying with the procedural and in
addition substantive parts of the issues. There are
numerous disputable and easily proven wrong issues,
for example, connecting with a legal advisor because
of the particular arrangements of the Family Courts
Act.
Besides, the absence of consistency with respect to the
guidelines set around various states additionally
prompts disarray in its application. Only passing a focal
enactment is not in itself a complete stride; for
19

execution in its soul, it is to be guaranteed that some

level of consistency is kept up, in any event in the
underlying phases of its becoming effective. Further,
the need to correct certain laws is likewise to be
analyzed and actualized successfully keeping in mind
the end goal to guarantee that these courts don't
confront any prevention in their working. These little
strides, if analyzed and actualized inside time, will go
far to guarantee that the Family Courts are fruitful, to a
more noteworthy degree, to satisfy the respectable
reason for which they were made.

BIBLIOGRAPHY
http://www.legalserviceindia.com/
www.wikipedia.com
www.Indiankanoon.com
National Commission for Women, Family Courts:
Report on working of family courts and model
family courts, New Delhi, 2002.
The Gazette of India, The Family Courts Act, 1984,
http://doj.gov.in/sites/default/files/family-courtsact.pdf (accessed December, 5, 2014) Judicial
Statistics,
20

Family courts, http://doj.gov.in/?

q=node/add/family-courts (accessed December, 5,
2014) Flavia, Agnes Family Law (Volume II):
Marriage, divorce, and Matrimonial Litigation. (New
Delhi: Oxford University Press, 2001).

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