FAMILY LAW

PROJECT

FAMILY COURTS

Submitted By
Ashish Kumar Dwivedi

Roll No. 1353

B.A.LL.B. Iind Year

Army Institute of Law

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Family Courts in India: An Overview
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 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.
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A family court is a court convened to decide matters and make orders in
relation to family law, such as custody of children. In common-law
jurisdictions "family courts" are statutory creations primarily dealing with
equitable matters devolved from a court of inherent jurisdiction, such as a
superior court. The Family courts were first established in the United
States in 1910, when they were called domestic relations courts although
the idea itself is much older.[1]
Family courts hear all cases that relate to familial and domestic
relationships although each state has a different system utilized to address
family law cases, each state strives to provide families with the best
possible outcome in family law cases. Family courts can also issue
decisions regarding divorce cases.

In United States
In the United States family court falls under the heading of Trial Courts of
Limited Jurisdiction. These types of courts deal only with a specific type
of case and they are usually presided over by a single judge without a
jury. In the United States a family often will use mediation instead of a
family court. This allows families to find solutions that suit their specific
needs, rather than being forced to adhere to the ruling of a judge. The idea
of using family court is to put the child first and help parents resolve
disputes. M.A.R.C.H stands for Mediation Achieving Results for Children
and was established in Missouri in 1997. M.A.R.C.H is proven to be an
effective alternative dispute resolution process and is now used in 45 of
the state's judicial circuits; it is the less costly alternative, both emotionally
and financially. According to statistics, 75 percent of families who
participate in mediation reach an agreement, and 92 percent of those that
do reach the agreement are satisfied with the mediation
process. The American Bar Association sites nearly 10,000 members in
The Section of Family Law

In United Kingdom
Cases involving children are primarily dealt with under The Children Act
1989, amongst other statutes. As of 22 April 2014 there are two family
courts:
The Family Division of the High Court
The Family Court
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The Family Court was created by Part 2 of the Crime and Courts Act 2013,
merging into one the family law functions of the county courts and
magistrates' courts.
Two types of scenario are covered by The Children Act 1989: private law
cases, where the applicant and respondent are usually the child's parents;
and public law cases, where the applicant is the local authority and the
parents are usually respondents. There is much debate at present over
whether the manner in which the law is administered generally leads to
outcomes that are beneficial to the families concerned. In this context,
see fathers' rights.
Cases involving domestic violence are primarily dealt with under Part IV
of the Family Law Act 1996.
In the United Kingdom, the Family Court may be called upon to require
the payment of child maintenance, when the child is either under the age
of 16, or under the age of 20 receiving a full-time education (but not
higher than A-Level or equivalent)

In India

The Family Courts Act 1984 was enacted on 14 September 1984 to

provide for the family courts with a view to promoting conciliation in and
secure speedy settlement of disputes relating to marriage and family
affairs. According to Section 2 (d) of the act, "Family Court" means a
family court established under section 3. Section 3 describes the
establishment of Family Courts and says that the State Government after
consultation with the High Court and by notification shall establish a
Family Court for every area of the state consisting of a city or town whose
population exceeds ten lakhs and for other areas in the state as it may
deem necessary. Family courts are subordinate to the High Court, which
has power to transfer the case from one family court to the other.
The matters which are dealt in the Family Court in India are matrimonial
relief which includes nullity of marriage, judicial separation, divorce,
restitution of conjugal rights, declaration as to the validity of marriage and
matrimonial status of the person, property of the spouses or any of them
and declaration as to the legitimacy of any person, guardianship of a

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person or custody of any minor, maintenance including the proceeding
under the Cr. P.C.
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 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.

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Procedure followed by the family courts- advantages 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 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.

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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 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
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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
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.

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Conclusion

It is evident that the setting up of these family courts was a dynamic step
so far as reducing the backlog and disposing off cases while ensuring that
there is an effective delivery of justice goes. However, as aforementioned,
there are still matters of concern which plague these courts. The issues
relating to the functioning of these courts is to be seen in total, as quoted in
the examples relating to the procedural as well as substantive aspects of
the problems. There are many controversial and debatable issues such as
engaging a lawyer due to the specific provisions of the Family Courts Act.
Furthermore, the lack of uniformity regarding the rules laid down by
different states also leads to confusion in its application. Merely passing a
central legislation is not in itself a complete step; for implementation in its
spirit, it is to be ensured that some level of uniformity is maintained, at
least in the initial stages of its coming into effect. Further, the need to
amend certain laws is also to be examined and implemented effectively in
order to ensure that these courts do not face any hindrance in their
working. These small steps, if examined and implemented within time,
will go a long way to ensure that the Family Courts are successful, to a
greater degree, to fulfil the noble purpose for which they were created.

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Reference:

The Family Courts Act, 1984.

Memorandum to the Chairman, Karnataka Law Commission for Judicial
Reforms, by the Public Relations Officer, Save Indian Family Foundation,
Bangalore.
Jamwal, N., Have Family Courts lived up to Expectations? Mainstream,
Vol XLVII No 12, March 7, 2009.
Mathew, P.O. and Bakshi, P.M., Family Courts. Indian Social institute.
Delhi, 1986
http://www.blogcatalog.com/blog/voice-of-women
india/e9ff5198e7da7b5e528e004799249bdf

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