Parliament has passed the Family Courts Act in the year 1984.
It has been brought into force on different datesfor different states. In some states, it has been bought into force in some cities. In the case of M.P. Gangadharan& Anr vs State Of Kerala & Ors 2 Supreme Court it has been held that Family Courts should be established notonly because it is provided in the Act but the state must be alive to the situation that it has a duty to provide allinfrastructures to the forum of dispute resolution.Keywords – custody of children, dispute resolution, family court, maintenance, women.
INTRODUCTIONUnder the family court act, 1984 also, a duty is cast on the court to make efforts for settlement.In fact, the preamble itself says: “An act to provide for establishment of family court with a viewto promote conciliation in, and secure speedy settlement of disputes relating to marriage andfamily affairs, and for matters connected therewith”.Section 9 of the states:1 In every suit or proceeding, Endeavour shall be made by the family court in the first instance…to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of thesuit or proceeding and for this purpose, a family court may, subject to any rules made by highcourt, follow such procedure as it may deem fit.2 If, in any suit or proceeding, at any stage, it appears to the family court that there is reasonablepossibility of a settlement between the parties, the family court may adjourn the proceedings forsuch period as it thinks fit to enable attempts to be made to effect such a settlement.
* Mitul Gupta, 16BLB1042 2 nd YEAR BBA., LL.B.(HONS.), VIT UNIVERSITY2 Appeal (civil) 2638 of 20063 The power conferred by sub section (2) shall be in addition to, and not in derogation of anyother power of the family court to adjourn the proceedings.In order to assist the court in this manner, there are provisions for service of association ofinstitution or organizations, or other persons engaged in promoting family welfare. There is alsoa provision for assistance of medical experts in case of need. 3Concept of Family CourtsIn some western countries, family courts are already functioning.
Now it is accepted by most,that litigation in respect of any matter concerning family, whether divorce, maintenance andcustody of children should not be viewed in terms of failure or success of legal action, but associal therapeutic problem. It is not a litigation in which parties and their counsel are engaged inwinning or defeating a legal action but parties, lawyers, social workers, welfare officers andpsychiatrists, all are engaged in finding out a solution to the problems engaging the attention ofthe court. Thus, the concept of family court implies an integrated broad based service to familiesin trouble. It stipulates that the family court structure should be such as is meant to preserve thefamily, and to help to stabilize the marriage. Obviously, for such a system, the adversarylitigation system is hardly appropriate. Such a system visualizes the assistance of the specializedpersons and agencies.
Status of Family CourtUnder the Family Courts Act, 1984, to begin with, family courts are to be set up for a town orcity whose population exceeds one million. It is also provided that the State Governments may3 POONAM PRADHAN SAXENA, 1 FAMILY LAW LECTURES – FAMILY LAW-I (3 ed. 2013).also set up family courts for each other areas.
The family court may consist of one or morejudges. Where there are more than one judge, each judge is entitled to exercise all or any of thepowers conferred on family court. In such a case, one of them will be designated as principaljudge and another as an additional judge. The powers of both are co-extensive. The retirementage of judges of a family court, like that of the High Court Judges is 62 years. The emolumentsof the judges and the terms and conditions of services of the judges are to be determined by theState Government concerned in consultation with the High Court.
It appears that the status of thefamily court will be higher to the District Court but certainly lower to the High Court, sinceappeals from judgments, decrees and orders of the family court will lie to the High Court.Only those persons who have seven years of experience as judicial officer or as member of aTribunal or who have held a post for that duration under the Government of India or StateGovernment requiring special knowledge of law or have been advocates of a High Court for atleast seven years are eligible to be appointed as judges of the Family Court. Other qualificationmay also be laid down by the central Government in consultation with the Chief Justice of India.For the appointment of judges of a Family Court, preference will be given to women.
For thejudges of the family court, some knowledge of psychology, sociology and social work will benecessary. Such qualifications should be prescribed by Central Government. 4 Those persons whoare engaged in the research or teaching of family law and who are consequently expert in familylaw matters are eligible to be appointed as judges of the family court under the Act. Since thefamily court system visualizes a less formal procedure, where legal technicalities and technicalprocedure are not to be followed, such persons are eminently suitable for the family court.
Jurisdiction of Family Courts:In countries where the family court system exists there is still a controversy as to what mattersshould come within the jurisdiction of the court. There is an agreement that all family lawmatters, such as marriages, matrimonial causes, maintenance and alimony, custody, educationand support of children, settlement of spousal property and guardianship and custody of child’sperson and property, should come within the jurisdiction of the court. But there is a disagreementas to para-familial matters, such as inter-spousal assaults, familial assaults and other offences of4 POONAM PRADHAN SAXENA, 1 FAMILY LAW LECTURES – FAMILY LAW-I (3 ed.
2013).criminal nature between the spouses and their children, inter-familial torts and contracts;Parliament has favored the former view. Explanation to section 7(a) lists the following matters:a) Matrimonial causesb) Suits for the declaration of validity of marriage or spousal statusc) Suits regarding the properties of the spouses, joint or individuald) Suits for injunction arising out of marital relationship, such as suit for injunction to restrainspouse from taking second spouse in the life time of the other or injunction from preventing anyother wrong, such as sale of joint property other spouse’s propertye) Suits for maintenancef) Suits relating to guardianship and custody of minor children, andg) Application relating to maintenance of wife, children and parents under Section 125, CriminalProcedure Code, 1973.If any statute confers jurisdiction in any other matter on the family court, then the court will havecompetence to try such matters. One wishes that para-familial matters too should have beenbrought under the jurisdiction of the family courts. Thus, no matter under the Dowry ProhibitionAct can be brought before the Family Court.
In Shyni vs. George 5 , it was held that wife can implead a close relative of her husband or even astranger on allegations that the husband had handed over the property to them in a suit forrecovery of the property. This would not oust the jurisdiction of the Family Court.
In K.A. Abdul Jaleel vs. T.A. Sahida 6 , the expression ‘parties to the marriage’ was held toinclude a divorced wife and a petition filed by her for the declaration and partition of propertyjointly acquired by them would be maintainable.CounselingCounseling and conciliation are the two pillars on which the whole structure of family courts isbuilt. Counseling, in fact, is the foundation on which the philosophy of conciliated settlementrests.
The role of the counselors is not limited to counseling but extends to reconciliation andmutual settlement wherever deemed feasible. The Counselor shall fix time and date of5 1997 Ker 2316 Appeal (civil) No. 3322 of 2003appointment and inform the same to the parties for their appearance 7 . If either of the parties failsto attend on that date the counselor may fix another date and communicate the same to theconcerned by registered post. In case of default by either of the parties on the adjourned date, thecounselor shall submit a report to the court and then the court will take action against thedefaulting parties. On appearance of parties the counselor made efforts to settle the dispute byway of conciliation.Procedure:The concept of family court essentially implies that we should do away with the traditionaladversarial procedure.
This means that different rules of procedure are to be devised. Thus, therules of procedure should be worded simply and should indicate the whole range of proceduresfrom the commencement of an action to its conclusion, including means to enforce judgmentsand orders; procedure should be flexible so that diverse, at times, complex problems of familialconflict are covered; the standard forms to meet all situations should be drafted; pleadings shouldstay away from the traditional adversary or fault oriented approach, pre-trial processes should belaid down, designed to provide dignified means for parties to reconcile their differences and toreach amicable settlements without the need of a trial; free advice should be made available as torights of parties as well as their responsibilities and obligations and where children are involved,steps for immediate protection of their interest and rights should be taken; and issues should bedetermined without any prejudicial delay. The language, conduct, documents and legalrepresentation should be simple without any technicalities. The pre- trial documentation of thepleadings should be such that issues between the parties are clearly defined, this will help inavoiding frivolous litigation, encourage pre-trial debate and settlement.
Since one of the main objective of family court system is to encourage and enable parties to gointo a process of reconciliation, failing which, of conciliation, the family judge should be able topass consent orders if parties have been able to come to some settlement, without any formalityof formal hearing or trial of issues.7 S.R.A ROSEDAR, 1 FAMILY LAW I.
(1 ed. 2016).The Family Court Act, it seems opts for a less formal procedure. Although Section 10 makes theprocedure laid down under the Civil Procedure Code applicable to the family court, it is laiddown that the family court has power to evolve its own rules of procedure which will overridethe rules of procedure laid down in the Civil Procedure Code and the Criminal Procedure Codewhenever made applicable.
Section 14, 15 and 16 of the Act provide for the informality of theprocedure. Thus, any document, statement, information relevant for the trial will be admissible inthe family court even though the Indian Evidence Act makes such documents etc. inadmissible.The family court judge need not record the full evidence as is done in adversal system; he mayjust prepare a memorandum for substance of evidence.
All formal evidence will be tendered byaffidavits, though wherever necessary, a deponent may be orally examined. Similarly, the judgeneed not render a detailed judgment, though it should contain a concise statement of the case, thepoints for determination, the decision and reasons for the decision.Camera proceedings and Exclusion of Lawyer:It is now accepted in most countries as well as India that matrimonial proceedings should be incamera and the confidentiality of the court record should be maintained.
Section 11 of the Actmakes it obligatory on the part of the courts to hold proceedings in camera.In some countries, there is a strong opinion for the exclusion of lawyer’s service from the familycourt and “do-it- yourself” divorce is being propagated. In undefended cases and in cases whereparties are in a mood to settle issues, the services of a qualified lawyer will hardly be needed.In Kailash Bhansali vs. Surender Kumar 8 , husband filed an application to be represented by legalpractitioner and the wife was claiming harassment on the part of husband.
Order appointing legalpractitioner for both was passed which was held by the High Court to be improper.Support of Auxiliary Service:8 2000 Raj. 390No family court system can succeed unless it has a well-organized support service available tohelp parties at reconciliation, conciliation and to lessen the adversal atmosphere. A supportservice should include family counseling and reconciliation service, investigational service, legalaid service, and enforcement service. The family counseling and conciliation service is usually athree-tier service; pre-marital counseling and reconciliation and conciliation counseling and post-adjudicatory counseling. The pre-marriage counseling service should not be a part of familycourt system, but a community service easily accessible to persons in distress. The pre-adjudication counseling service should be available to the parties before they have gone to thecourt.
The role of reconciliation and conciliation counseling is to promote reconciliationwhenever possible, and, where reconciliation is not possible, or desirable, to secure amicablesettlement of all those issues which need solution when a marriage has broken down. Thisservice has to be part of family court system. The role of conciliation counseling is to clarifyissues and problems and help parties to arrive at a settlement of as many of them as possible,irrespective of the fact whether the marriage survives or not. The post-adjudication counselingservice will help parties after they have obtained a decree of divorce.Decree of Family Court- Civil Court’s Jurisdiction:A civil suit to declare the decree of family court as null and void is not maintainable.
9 Familycourt’s jurisdiction will have precedence over our matrimonial and family law statutes. 10Scope of interference in appeal in order of Family Court:No specific procedure has been prescribed by statute to be followed by Family Court decidingapplication for custody of minor child. The only thing to be considered by Court is whether theprocedure adopted by Family Court was natural justice. Paramount consideration was welfare ofthe child. 11Drawbacks in the Act9 Shahnaz vs. Shirin, 1995 Bom 30 1995 (Bom), p.
30.10 Ibid.11 Dr. Rohit Dandekar vs. Dr.
Raj Kavitha 2004Kant. 1 (DMC), p.216.The Family Courts Act, 1984 however does not define ‘family’. Matters of serious economicconsequences, which affect the family, like testamentary matters are not within the purview ofthe family courts. Only matters concerning women and children, divorce, maintenance, adoptionetc.
, are within the purview of the family courts. The words “disputes relating to marriage andfamily affairs and for matters connected therewith” must be given a broad construction.Case LawIn Myer v. Nebraska 12 , the first federal judicial involvement began under the guise ofparent’s rights, which affirmed the right of parents to choose a curriculum.
This wasfurther affirmed in the case of Pierce v. Society of Sister 13 .In Prince v. Mass 14 , the court broadened this ruling by declaring that family life could notbe disturbed by intervention of the State without substantial justification.In Gurubachan Kaur v.
Preetam Singh 15 , the Division Bench of Allahabad High Court held that”a duty has been imposed under Sec.9 of the Family Courts Act to make all possible endeavorwhich is at Pari Materia with Order XXXIII of CPC. The Court must express its concern that theFamily Courts should work in a spirit of dedication to settle the matter by negotiation and allpossible methods of persuasion so that the marriage may be preserved.
In Leela v. Mahadevan 16 , it was held that “Most people are so upset in crisis, particularly inmarriage crisis, as not even be able to file simple documents methodically, or even to thinkclearly and would gratefully employ a lawyer to employ themselves of another burden. It is,therefore submitted that services of specially trained lawyers should be available to parties andtheir children. It should be realized that when we are thinking of different courts for familymatter, we are thinking of different types of lawyers also.
“Recent DevelopementIn Krishna veni Nagam’s case, a two-Judge Bench of the Apex Court, comprising Justices AKGoel and UU Lalit, had provided an alternative of video conferencing to parties seeking transferof proceedings on account of inability of a party to contest proceedings at a place away from12 262 US. 390, (1923)13 268 US. 510, (1925)14 321 US.
158, (1944)15 1998 (1) AWC 27516 AIR 1991 Bom 255.their ordinary residence. Later, a coordinate Division Bench, comprising Justices Kurien Josephand Banumathi, had expressed its reservations on the use of videoconferencing in matrimonialmatters, thereby referring the matter to a larger Bench.
17Family Court can hear proceedings initiated under Domestic Violence Act: Bombay HC.JusticeMridula Bhatkar of the Bombay High Court has ruled that a Family Court can hear proceedingsseeking to annul a marriage alongside grievances raised under the Domestic Violence Actagainst the husband and his relatives.The Court noted that the jurisdiction to seek remedies under the D.V. Act is before the JudicialMagistrate First Class or the Metropolitan Magistrate.
It however noted that though jurisdictionof the Family Court is restricted to the parties to a marriage, under subsection (2) of section 7,the jurisdiction of the Family Court is widened as the cases under Chapter IX of CriminalProcedure Code are also made triable before the Family Court; so also, under section 2(b), ‘suchother jurisdiction is conferred on it by any other enactment’ 18