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Family courts and the Family Courts Act, 1984.
Family courts were established in India in 1984 to provide a specialized forum for speedy resolution of disputes related to marriage and family affairs. The key objectives of family courts are to promote conciliation between parties and secure expedited settlements. Family courts have jurisdiction over matters including divorce, maintenance claims, child custody and access. They employ counselors to attempt to reconcile parties and encourage out-of-court settlements through counseling and conciliation.
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Family courts and the Family Courts Act, 1984.
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- 2. History Ancestor offamily court was Child or Juvenile court. The concept actually arose in the late nineteenth century. Justice Potter Stewart stated in the case of Parham v. J.R. (1979), “issues involving the family are the most difficult that the courts have to face”. Article History of Family Court by Effie Belou. In Maynard v. Hill, 25 US. 190, (1880), the Supreme Court stated that State had jurisdiction over the family endorsing State regulation of the family.
- 3. In Myerv. Nebraska, (262 US. 390, (1923)), the first federal judicial involvement began under the guise of parent’s rights, which affirmed the right of parents to choose a curriculum. This was further affirmed in the case of Pierce v. Society of Sister (268 US. 510, (1925)). In Prince v. Mass, (321 US. 158, (1944)), the court broadened this ruling by declaring that family life could not be disturbed by intervention of the State without substantial justification.
- 4. Origin to establishthe Family Courts in India The need to establish the family courts was first emphasized in India by the late Smt. Durgabai Deshmukh, after a tour of China in 1953, where she had an occasion to study the working of family courts. She discussed the subject with certain judges and legal experts and then made a proposal to set up family courts in India to Prime Minister Jawaharlal Nehru. Another reason for setting up of family courts was the mounting pressures from several women’s associations, welfare organizations and individuals for establishment of such courts with a view to provide a forum for speedy settlement of family related disputes.
- 5. In Indiathe Hindu Marriage Act, 1955 was passed, till date, several amendments have been made to liberalize the grounds for divorce; coupled with that, the Courts have also so construed and applied the provisions as to provide maximum relief with least hardship to any of the parties. The same is true in regard to other personal law statutes governing Christians, Parsis and Muslims as well. Thereafter, the Law Commission, in its report, as early as 1973 (Fifty Fourth Report on the Code of Civil Procedure), strongly recommended the need for special handling of matters pertaining to divorce. The Code of Civil Procedure was amended to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family.
- 6. The needwas, therefore, felt, in the public interest, to establish family courts for speedy settlement of family disputes. After a lot of debate and discussion, the Family Courts Act came into force on 14.9.1984. The whole idea behind the Act is to ensure speedy and inexpensive relief with least formality and technicalities. In India first and foremost the family court was established in the State of Rajashtan on 19.11.1985.
- 7. The ParliamentaryCommittee on empowerment of women has recommended that the family courts may be set up in every district. All the State Governments have been requested to set up family courts in all districts. However, the number of District Courts in India is not sufficient to dispose of all the cases that come before it.
- 8. Drawbacks in theAct The Family Courts Act, 1984 however does not define ‘family’. Matters of serious economic consequences, which effect the family, like testamentary matters are not within the purview of the family courts. Only matters concerning women and children, divorce, maintenance, adoption etc., are within the purview of the family courts. The words “disputes relating to marriage and family affairs and for matters connected therewith” must be given a broad construction.
- 9. Object of theAct The object for establishment of family courts is to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. In Abdul Jaleel v. Shahida, the Supreme Court held that the Family Courts Act, 1984 was enacted to provide for the establishments of family courts with a view to promote conciliation in and secure speedy settlement of dispute relating to marriage and family affairs and for matters connected therewith by adopting an approach radically different from that adopted in ordinary civil proceedings.
- 10. Matters relatingto maintenance allowance to wives, children and parents are provided under Sec.125 of the Code of Criminal Procedure, 1973. After enactment of the Family Courts Act, 1984, a proceeding for maintenance falls within the jurisdiction of the family courts at the places where such courts have been established. At other places, the magistrate of the area exercises the jurisdiction in such matters.
- 11. The familycourts are specialized as civil courts, which deal exclusively with dissolution of marriage; declaration of the matrimonial status of any person; declaration of ownership of properties of the parties concerned; interim order of injunction arising out of marital relationships; declaration of legitimacy of any person, or guardianship of a person, or the custody or access of any minor and suits for maintenance. The Family Courts Act, 1984 was part of the trends of legal reforms concerning women. 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.
- 12. The StateGovernment shall after consultation with the High Court, specify, by notification, the local limits of the area to which the jurisdiction of a family court shall extend and may, at any time, increase, reduce or alter, such limits. In Gangadharam v. State of Kerala, (AIR 2006 SC 2360), it was held that the place of the family court need not be permanent. It can be shifted from one place to yet another place within the area. The State Government may, with the concurrence of the High Court, appoint one or more persons to be the judge or judges of a family court. (Section 4 (1) of the Family Courts Act), 1984.
- 13. When afamily court consists of more than one judge, each of the judges may exercise all or any of the powers conferred on the court by this Act for the time being in force. The State Government may with the concurrence of the High Court appoint any of the judges to be the Principal Judge and any other judge to be the Additional Principal Judge. (Section 4 (2) (b) of the Family Courts Act), 1984. The Principal Judge may, from time to time, make arrangements as he may deem fit for the distribution of the business of the court among the various judges. (Section 4 (2) (c) of the Family Courts Act), 1984.
- 14. For appointmentas judges, the persons should have seven years of experience in judicial office or the office of a member of a tribunal or any post under the Union or a State requiring special knowledge of law, (Section 4 (3) (a) of the Family Courts Act), 1984. Or persons should have seven years of experience as an advocate of a High Court or of two or more such courts in succession. (Section 4 (3) (b) of the Family Courts Act), 1984.
- 15. The StateGovernment may in consultation with the High Court provide rules for the association of social welfare agencies etc., in such manner and for such purposes some conditions specified in the rules, with a family court of: Institutions or organizations engaged in Social Welfare or the representative thereof; (Section 5 (a) of the Family Courts Act), 1984. (Section 5 (b) of the Family Courts Act), 1984. Persons professionally engaged in promoting the welfare of the family; Persons working in the field of social welfare; and Any other person whose association with a family court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act. (Section 5 (d) of the Family Courts Act), 1984.
- 16. The StateGovernment in consultation with the High Court: (1) determine the number and categories of counselors, officers and other employees required to assist a family court in discharge of its functions and provide them to assist the family courts and (Section 6 (1) of the Family Courts Act), 1984. (2) make rules regarding the terms and conditions of association of the counselors and the terms and conditions of service of the officers and other employees. (Section 6 (2) of the Family Courts Act), 1984.
- 17. COUNSELING Counseling andconciliation are the two pillars on which the whole structure of family courts is built. Counseling, in fact, is the foundation on which the philosophy of conciliated settlement rests. The role of the counselors is not limited to counseling but extends to reconciliation and mutual settlement wherever deemed feasible. The Counselor shall fix time and date of appointment and inform the same to the parties for their appearance. If either of the parties fails to attend on that date the counselor may fix another date and communicate the same to the concerned by registered post.
- 18. In caseof default by either of the parties on the adjourned date, the counselor shall submit a report to the court and then the court will take action against the defaulting parties. On appearance of parties the counselor made efforts to settle the dispute by way of conciliation.
- 19. JURISDICTION All familycourts shall have the power and jurisdiction exercisable by any District Court or any subordinate civil court in suits and proceedings of the nature dealt with explanation to Section 7 (1) of the Act. Following are the matters which can be filed in the Family Courts:- 1. Decree for nullity of marriage. 2. Restitution of conjugal rights. 3. Judicial separation. 4. Dissolution of marriage. 5. Declaration of matrimonial status of any person. 6. Matrimonial property matters.
- 20. 7. Claimof maintenance. 8. Guardianship. 9. Custody of children. 10. Access of children. 11. Application for injunction in matrimonial matters. 12. Custody of children, guardianship, legitimacy of child under the Hindu Minority and Guardianship Act, 1956.
- 21. Thus thefamily court entertain the applications for grant of decree of divorce under the various Acts like Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce) Act, 1986, the Parsi Marriage and Divorce Act, 1936, the Divorce Act, 1869, the Special Marriage Act, 1954, Foreign Marriage Act, 1969 etc. Validity of marriages under Hindu Marriages (validation of proceedings) Act, 1960, the Muslim Personal Law (Shariat) Application Act, 1937, Child Marriage Restraint Act, 1929, Anand Marriage Act, 1909, Arya Marriage Validation Act, 1937, Marriages Validating Act, 1952. If any dispute to a marriage between the parties arises irrespective of their caste or creed and validity of a marriage the family court has got jurisdiction.
- 22. In additionto that, the family court shall have jurisdiction exercisable by a First Class Magistrate under Chapter IX of the Criminal Procedure Code i.e., relating to order for maintenance of wife, children or parents, has also been conferred on the family courts. There is also an enabling provision that the family courts may exercise such other jurisdiction as may be conferred on them by any other enactment. Section 7 (2) (a) of the Family Courts Act 1984. In this connection the family court exercises its power to grant maintenance under Sec.125 of Criminal procedure Code.
- 23. The FamilyCourt has no jurisdiction to entertain the applications in certain circumstances. The following cases are some examples. 1. A suit for declaration regarding the illegitimacy of the child cannot be entertained. (Renubala Maharana vs. Mina Mohanty, AIR 2004, SC.3500) 2. In Ranjeet Chobra v. Savita Chobra, it was held that a dispute relating to appointment of Guardian of minor’s property has come under the jurisdiction of the Civil Court. (Ranjeet Chobra v. Savita Chobra 1991 (2) Civil L.J. 483)
- 24. 3. Thefamily court cannot entertain the suit of a minor’s property. (Kamal V.M. Allauddin v. Raja Shaikh AIR 1990 Bom. 299) 4. The proceedings under Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim woman can apply under Sections 3 and 4 of the said Act for maintenance only to Magistrate of the First Class. (Karim Abdul Rehaman Shaikh v. Shehnaz Karim Shaikh, 2001 (1) ALD (Crl.) 145 (Bom)) 5. The suit involving a dispute between the brothers, sisters, mothers, fathers etc. concerning property. (Karim Abdul Rehaman Shaikh v. Shehnaz Karim Shaikh, 2001 (1) ALD (Crl.) 145 (Bom))
- 25. 6. Thesuit for declaration that the father should provide necessary funds for his daughter’s marriage. (P. Srihari v. P. Sukunda, II (2001) DMC (AP) 135)
- 26. In GurubachanKaur v. Preetam Singh, 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 endeavor which is at Pari Materia with Order XXXIII of CPC. The Court must express its concern that the Family Courts should work in a spirit of dedication to settle the matter by negotiation and all possible methods of persuasion so that the marriage may be preserved. (AIR 1998, All. 140) The Court’s duty is even to put questions to elicit truth and should show dynamic approach towards the achievement of the ends of justice. Matters to be disposed of expeditiously and adjournments be restricted. The proceedings may be held in camera if the family court so desires and shall be so held if either party so desires.
- 27. At thetime of recording evidence usually a suffered wife cannot say the real story in the presence of other litigants and legal practitioners at the court due to humiliation and fear as it is her private family matter. In those circumstances, on the request of parties, the judge of the Family Court shall record the evidence after closing the doors of the court-hall by sending out the advocates and other litigants. The Family Court also has power to summon the medical experts to record their evidence relating to the subject matter of the cases. To exercise inherent powers may direct medical examination of a party to a matrimonial proceeding in appropriate cases.
- 28. Section 13of the Act provides that the party in a suit or proceedings before a family court has no right to engage an advocate to represent on his behalf. However, the court can seek help or assistance of legal expert as amicus curiae (a friend of the court). Thus the court has a discretionary power to allow advocate or not to represent on behalf of a party. To grant permission to a party to be represented by a legal practitioner the court shall maintain a panel of legal experts as amicus curiae consisting five members out of legal experts and also from the retired judges of local area, who have expertise in the field.
- 29. The judgmentof the family court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. The Act also brought civil and criminal jurisdiction under one roof. The family court passed orders under the civil procedure shall be executed the same manner as is prescribed by the Code of Civil procedure. A decree or order may be executed either by the family court which passed it or by the other family court or ordinary civil court to which it is sent for execution.
- 30. Appeal The Codeof Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973 or in any other law, an appeal shall lie from every judgment or order of a family court to the High Court both on facts and on law, except interlocutory orders. The family court passed a decree or order with the consent of the parties is not applicable for an appeal. If any appeal is preferred under this Act, it shall be within a period of thirty days from the date of the judgment or order of a family court Section 19 (2) of the Family Courts Act, 1984.
- 31. In Leelav. Mahadevan, it was held that “Most people are so upset in crisis, particularly in marriage crisis, as not even be able to file simple documents methodically, or even to think clearly 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 and their children. It should be realized that when we are thinking of different courts for family matter, we are thinking of different types of lawyers also.” (AIR 1991 Bom 255.)
- 32. Drawbacks The Actwas expected to facilitate satisfactory resolution of disputes concerning the family through a forum, and this forum was expected to work expeditiously, in a just manner and with an approach ensuring maximum welfare of the society and dignity of women. But still some Family Courts are not reached the goal perfectly since most of the judges are not following the procedure and rules of the Act. The judges appointed to the family courts have not any special experience in dealing with the family matters or training in settling the disputes through conciliation. Some State Governments and High Courts also failed to give preference for appointing women as family judges.
- 33. The personalenquiry of the Researcher and as per the report on working of family courts held by National Commission for Women, it was revealed that the family courts are entrusted with other cases like civil suits, motor vehicle accident cases etc. by the Principal District Judges, due to which the object of the family courts have not fulfilled and the cases relating to marriage have taken much time for disposal. The maintenance cases before the family courts taking time months together without granting maintenance, due to which number of deserted women and their minor children are suffering for their livelihood and causing hindrance in the studies of innocent children. Moreover, huge time may be taken for disposal of divorce cases.