This article has been written by Harshita Varshney, from Aligarh Muslim University. The author has tried to analyze the types of cases which are addressed in a family court in India. The family courts in India were established in India under Section 3 of the Family Courts Act, 1984.
Indian Judiciary has the largest backlog of pending cases in the world. According to National Judicial Data Grid (NJDG), around 3.7 million cases are pending before the High Courts, District and Taluka Courts across India or even more than 3.7 million for over 10 years. This statistics truly justifies “justice delayed is justice denied”. The regular courts are burdened with as many civil matters that no attention was given to the family-related disputes. Also, there was pressure from several welfare organisations and individuals, demanding for fast relief in the family-related disputes, by establishing the special courts. The Law Commission in its 59th Report (1974) also emphasised that there is a need of distinguishing the family-related disputes from common civil proceedings and reforming efforts should be made to settle the disputes between a family.
Therefore, to provide speedy settlement with fewer expenses and formalities, in disputes relating to marriage and family and to make an agreement between the parties for their conciliation, the Family Courts Act, 1984 was enacted by the parliament. Through this act, the Family Courts were set up in the states through which reasonable efforts for an agreement are made before beginning a trial in other Courts.
Important provisions of the Family Courts Act, 1984
The Family Courts Act, 1984 was enacted on September 14, 1984. This act contains 6 chapters and 23 sections. The act was enacted with the main aim of establishment of family courts for rapid and safe settlement in the disputes arising in family and marriage and the matters related therewith.
Establishment of family courts in India
According to Section 3 of this act, the State government, after consultation with the High Court shall establish the Family Court in every area of the state where the population is exceeding 1 million or in the area where the State government deem necessary.
The State government, after consultation with the High Court, shall specify the limits of the area till where the jurisdiction of the Family Court extends. It may also reduce, increase, or alter such limits of the jurisdiction of the Family Court.
Appointment of judges
The provisions related to the appointment of judges in the Family court are dealt under Section 4 of the Family Courts Act, 1984. The state government has the power to appoint one or more persons as the judges of the Family Court after consulting with the High Court. The state government, after consulting with the High Court, may also appoint any of the judges as the Principal Judge and any other judge as to the Additional Principal Judge. The main function of the Principal Judge is to distribute the business of the court among the various judges and the Additional Principal Judge is appointed to exercise the powers of the Principal Judge in his absence or when he is not able to do so due to illness or any other cause.
This section also led down the following qualifications which are required for appointing as judge of the Family Court:
- He must have worked for a term not less than seven years in a Judicial Office in India or in the office of a Member of a Tribunal or any post under the Centre or a State which requires special knowledge of law; or
- He must have worked as an advocate of a High Court or two or more courts of succession for a term not less than seven years; or
- He must possess such qualifications as prescribed by the Central government after consulting with the Chief Justice of India; or
- He must have not attained the age of sixty-two years.
In this process of selection of judges, it must be ensured that the person selected must know how to settle a dispute by way of conciliation and counselling, to protect the marriage and to promote the welfare of the children by their reason and experience. While selecting the judges, it must also be ensured that the preference shall be given to the women.
The salary or honorarium, other allowances payable and other terms and conditions of the judges of the Family Court will be decided by the State Government after consulting with the High Court.
Section 7 of this act confers those power and jurisdiction on the family courts which are exercised by the District Court or Subordinate Civil Courts in their suits and proceedings. The Explanation of this section tells about the nature of the suits and proceedings, which are as follows:
- A suit or proceeding for the decree of nullity of marriage, or restitution of conjugal rights, or for the dissolution of the marriage between the parties;
- A suit or proceeding for determining the validity of a marriage or matrimonial status of a person;
- A suit or proceeding in the matter related to the properties between the parties to a marriage;
- A suit or proceeding for an injunction or order arising out of a marriage;
- A suit or proceeding for declaring the legitimacy of a person;
- A suit or proceeding for maintenance;
- A suit or proceeding for the guardianship of the person, or custody of any minor.
Under Section 7(2), the family courts have also the power to exercise a jurisdiction which is exercised by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, 1973 and such other jurisdiction as provided by any other enactment.
How do family courts promote conciliation and speedy settlement of family affairs
The main aim of the Family Courts Act, 1984 was to provide quick and less expensive relief to the parties in a less formal way with least technicalities. The object of the establishment of these courts was to promote reconciliation between the parties and reach a stage of the agreement. It is the duty of the Court to make reasonable efforts for the settlement. Therefore, the court works with a conciliatory approach. There are some provisions of the act which suggests that the family court follows a conciliatory approach to settle the disputes between the party.
Under Section 4 of the act, the judges appointed in the family courts should have the aim to achieve the purpose of the act, which is to protect and preserve the relations and by way of conciliation and counselling. The reasonable efforts should be made to settle the disputes by way of an agreement.
Duty of the court to make reasonable efforts for reconciliation between the parties
Section 9 of this act prescribes the duty of the family court to make efforts to promote reconciliation between the parties. As, per Section 9(1), in the first instance, the family court, in every suit or proceeding, shall make efforts to convince the parties to settle the dispute with an agreement and for this purpose, the family court may follow the rules prescribed by the High Court or follow such rules or procedure as the family court may deem fit.
According to Section 9(2), if the family court finds that at any stage of the proceeding there is a reasonable probability of settlement between the parties, the court has the power to adjourn the proceedings until the settlement is reached. And as per Section 9(3), the power prescribed under sub-section 2 is an addition to the powers of the family court.
Help from medical and welfare experts
As to promote reconciliation between the parties, Section 12 prescribes that the family court can take assistance from medical and welfare experts. According to this section, the family court is open with an option to secure the services of a medical expert or any other person (preferably a woman), whether related to the parties or not or any professional who will promote the welfare of the family or any other person who can help the family court in discharging its functions.
According to Section 5 of the family courts act, the state government after consulting with the High Court may make rules regarding the association of the following persons or institutions with the family court:
- Organisations or institutions related to social welfare;
- A professional person who will work for the welfare of the family court;
- Any person who is working in the field of social welfare;
- Any other person whose presence will ensure the effective working of the family court.
Section 6 of this act provides that the state government after consulting with the family court shall determine the number of counsellors, officers and other employees who will help the family court in discharging its functions effectively and shall ensure the presence of such counsellors, officers and other employees.
The counsellors play an important role in the working of the family court. Most of the cases of the family court can be solved by effective counselling. So, the fair selection of counsellors for the family court must be ensured.
Common cases heard in family courts
Dissolution of marriage
India is one of the countries with the largest population, due to which there are many married couples in the country. While having this large number of married couples, there will be more chances of having more cases of disputes between the couples and their family. And for seeking remedy they will surely approach the courts.
In India, the family court can accept the appeals for grant of decree of divorce under 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. For the dissolution of Hindu marriage, one can file an appeal for divorce under Hindu Marriages (validation of proceedings) Act, 1960.
In the case of Reddy Anada Rao v. Ms Totavani Sujatha, the appellant and the respondent were living their life by following Christian religion but they got married as per the Hindu rituals in a Hindu temple. The appellant i.e. the husband claimed that he was forced to marry the respondent therefore, he appealed for the dissolution of his marriage and to set aside his marriage certificate. The question was raised by the office of the family court that the marriage was itself null and void as per the provisions of Hindu Marriage Act, 1955 so there is no need for the suit. The judge held that the appeal for dissolution of marriage is not maintainable in the family court as Section 5 and Section 11 of the Hindu Marriage Act has clearly laid down that the marriage is null and void if it has been done with coercion or without the consent of any party. Later, the husband appealed in the High Court for which the court held that as per the Explanation (a) of Section 7 of Family Courts Act, 1984, the family court has jurisdiction in the concerned matter. As per the provisions of this act, the family court has jurisdiction over the disputes arising out of the marriage of any caste or creed.
The explanation (g) in Section 7(1) provides that the family court has jurisdiction to grant the custody of the child to a proper person and to make that right person the guardian of a minor. The cases related to the custody of the child are filed before the family court where he usually resides. For example, if the father is residing in Uttar Pradesh and the mother along with the minor child is residing in Mumbai and the father wants to have custody of the child then he has to file the case in Mumbai’s family court. Thus, the family court has exclusive jurisdiction over child custody cases. The family court has also the power to accept the petitions made under the Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956.
Security orders- domestic violence
The family courts act has not specifically mentioned the jurisdiction of the family court in matters of domestic violence. And this is the area where family courts are lacking. Though the act hasn’t made any provision related to the matters of domestic violence. However, there is a provision under the Protection of women from Domestic Violence Act, 2005 (hereinafter DV Act), according to which the family court can entertain the matters related to domestic violence. The DV Act is not wholly a criminal law; it has also granted powers to the civil and family courts. As per Section 26 of the DV Act, the victim can not only claim relief from the Magistrate but also from the family court and other civil courts.
In the case of Sudhannya K.N. vs. Umasanker Valsan (2013), the Kerala High Court discussed the scope of DV Act and held that the scope of DV Act is wide as it guarantees rights to women to approach either magistrate or family court for filing suit according to her comfort zone. The court also held that the family court has the power to pass the interim protection orders as well as interim residence orders under Section 26 of the DV Act.
However, Section 26 is not used adequately because the powers of the family court are not properly described as in the matters related to domestic violence and also the family courts are not clear about their jurisdiction under Section 26 of the DV Act. Due to this, most of the victims approach the Magistrate instead of the family courts.
Under the family court act, explanation(f) of Section 7(1) clearly provides that the family courts have jurisdiction over the suits or proceedings for maintenance. Also under Section 7(2), the family courts have the power to exercise a jurisdiction which is exercised by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, 1973, which is related to maintenance of wife, children and parents. This means the family courts can grant maintenance under Section 125 of CrPC.
The Supreme Court recently in the case of Rana Nahid v. Sahisul Haq Chisti (2020) has given a contrasting judgement over the jurisdiction of the family court under Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act). The facts of the case are: a Muslim woman moved to the family court of Ajmer under Section 125 of CrPC for claiming maintenance from her husband as she was harassed for dowry and was thrown out of the home. The family court accepted the application made under Section 125 of CrPC, as an application under Section 3 of the 1986 Act. The family court ordered the husband to pay Rs 3 Lakh to his wife and Rs 2000 every month for the maintenance of his child.
The husband moved to the High Court against the order of the family court and questioned the jurisdiction of the family court under the 1986 Act. The High Court held that the family court has no jurisdiction to pass such an order under the 1986 Act. However, the petitioner can approach the Court of competent Magistrate under Section 3 of the 1986 Act. The wife approached the Supreme Court against the order of the High Court.
Justice Bhanumati was of the opinion that the family court has no jurisdiction for accepting an application filed under Section 3 of the 1986 Act. She supported her opinion by saying that Section 3 of the 1986 act confers exclusive power on the Magistrate of First Class to entertain applications made under the said section. She also made reference to the judgements passed by various High Courts. However, Justice Indira Banerjee holds the position that the family court has the jurisdiction for accepting applications made under Section 3 of the 1986 Act. She held that the preamble of the Family Courts Act suggests that it is a secular statute which means all the laws are applied in the matters irrespective of the religion. Also, Section 7(1), of the act provides that the family court has the same powers and jurisdiction as of a District or Subordinate Civil Court to entertain suits or proceedings for maintenance. She also made a reference to the principle of equality under Article 14 and Article 15 of the Indian Constitution and extended the jurisdiction of the family court for the benefits of Muslim divorced women.
As per the explanation (c) of Section 7(1) of the family courts act, the family court has jurisdiction over the disputes related to the property of the parties to the marriage. Generally, the disputes between the parties to the marriage arise when the decree of the divorce has been passed. The family court can entertain the suit or proceeding related to the disputes of the property of the parties of the marriage by satisfying two conditions:
- Such a dispute must have arisen between the parties to the marriage only;
- Such a dispute must have arisen due to the property of either party.
In the case of Mrs Mariamma Ninan v. K.K. Ninan (1997), the petitioner i.e. the wife approached the family court for the partition of the property and claimed her separate possession as she also contributed Rs 3 lakh for the construction of the property. The family court didn’t accept the petition and directed the petitioner to file a Civil suit. However, the High Court set aside the order of the family court and held that the said matter falls under the jurisdiction of the family court as per Section 7(1) of the family courts act. The high court held that the family courts have jurisdiction to entertain the disputes related to the partition of the property of the parties to the marriage. Therefore, the high court resend the matter to the family court and directed the court to entertain the matter and settle the dispute.
Procedures followed by the family courts
The procedure followed by the family court is quite friendly as no long formalities are required. The main objective behind the establishment of the family court was to provide speedy relief to the parties by way of settlement.
Section 10 of the Family Courts Act, 1984 laid the general procedure which is followed by the family courts. Section 10(1) applies the provisions of the Code of Civil Procedure, 1908, in the suits or proceedings of the family court and by applying the Code, the family court shall be deemed to be a civil court and shall have powers of such court. Section 10(2) says that the provisions of the Code of Civil Procedure, 1908 are applied on the suits and proceedings of the family court, under chapter IX of the code. Section 10(3) gives power to the family court to lay down its own procedure according to the circumstances of the suit or proceeding or at the truth of the facts made by one party and refused by another, intending to arrive at a settlement.
The proceedings of the family court can be held in the presence of cameras. According to Section 11 of the act, the proceedings of the family court may be held in camera, if the court feels so, or any party to the suit wants to do such.
As the family courts work with fewer formalities, they don’t record the lengthy evidence of witnesses, only that evidence of the witness is recorded which is related to the subject matter. According to Section 14 of the act any report, statement or document, related to the subject matter is admissible under Indian Evidence Act, 1872. Also, as per Section 15 of the act, it is not necessary for a family court to record the evidence of a witness at length, only that part is sufficient which is related to the suit or proceeding and it should be signed by the judge and the witness.
Challenges faced by family courts
The Family Courts Act, 1984 was enacted to resolve the family-related disputes through an innovative forum. It was predicted that this forum will work in a just manner and will secure the maximum welfare of the family. With this view, the Family Courts were set up under Section 3 of this act. The main objective of the family court was to provide speedy settlement with fewer expenses and formalities, in disputes relating to marriage and family and to make an agreement between the parties for their reconciliation. But this objective is not fulfilled yet.
The following are the challenges which are faced by the family courts:
- Section 2 of the act has defined some terms. However, it has not defined the term “family”, due to which matters arising out of economic consequences which affect the family in various ways are not covered by the family court. Only matters related to marriage, maintenance and divorce are dealt with by the family court.
- The Act has empowered the state government to make rules for the working of the family court in their states but most of the state government haven’t effectively used these powers to make rules and set up family courts.
- The situation became worse when the counsellors and other authorities kept on changing. If a suit went for a long time and in the middle of it if the counsellor got changed then it became difficult for the parties, especially women to convey their problems again. The same thing has been witnessed in the state of Tamil Nadu where the marriage counsellors kept on changing every 3 months.
- As the family court follows the provisions of code of civil procedure in the suits or proceeding it creates difficulties for a common man to understand the complex law. The act hasn’t created any simplified rules which can be understood by a layman.
- The act has also negated the presence of lawyers in the suit or proceeding of a family court which create difficulties for a common person to understand the procedure and formalities of the court. In such circumstances, the parties of a suit have to depend on the clerks and peons of the court.
- The act was enacted to establish family courts across the country with a conciliatory approach to secure speedy relief to the parties but it failed to ensure gender justice and equality due to orthodox thinking of judges and patriarchal attitude of the counsellors.
Are family courts functioning adequately towards fulfilling their purpose
The parliament enacted the Family Courts Act, 1984 to provide speedy settlement with fewer expenses and formalities, in disputes relating to marriage and family and to make an agreement between the parties for their conciliation. But they are not functioning adequately towards fulfilling their purpose. There are various reasons behind it like lack of clarity in the procedure followed by the court, improper infrastructure, biased counselling, lack of lawyers, the inappropriate mechanism for execution and many others.
The family courts were established to settle the disputes arising from a marriage with a conciliatory approach and providing speedy relief to the parties through settlement. But these objectives were not fulfilled due to various reasons like lack of clarity in the procedure followed by the court, improper infrastructure, biased counselling, lack of lawyers, an inappropriate mechanism for execution and many others. There are following suggestions which should be adopted by a family court to ensure proper working of the court:
- The only aim of family courts is to settle the dispute of the family through a conciliatory approach. They don’t make any attempt to secure gender-based equality. The disputes can be resolved in a woman-friendly manner. But the government and the legislature haven’t thought of making some changes in the law.
- The judges of the family court are appointed based on the qualification as that of judges of District Court. There is a need to change this process. There should be an organised program where judicial education on gender justice should be imparted. Also, the judges should be trained well in dealing with the disputes related to the family.
- The role of counsellors should be more clear as they only focus on the reunion of family and not care about the interests and security of a woman. They should be trained to be more neutral while settling the disputes.
- The suggestions made by the workshop of the National Commission for Women should be incorporated with the Act such as:
- The procedure prescribed by the act should be simplified by the legislature so that it could be easily understood by a layman;
- The provision of the Act which grants maintenance should also include the residence of women;
- Family courts can take assistance from NGOs and other welfare societies to help the court in discharging its functions;
- The counsellors should not be changed frequently and they should be trained well;
- A woman should be allowed to file a case in the family court or district court of where she resides not particularly of where the marriage was solemnized or of where the husband is residing.
Before 1984, all family matters were heard by the ordinary civil court judges who used to take a long time to provide relief to the parties. In 1984, the Family Courts Act was passed and came into force. The main objective of the act was to take family and marital disputes out from the overburdened and traditional courts of law and to bring them in the simple court where a layman could also understand the procedure of the court. The main aim of the act was to follow the conciliatory approach to promote a settlement between the parties and provide them with speedy relief. But these aims were not fulfilled. Nowadays the conclusion has been derived that the speedy remedy is a myth. The family courts need to adopt various appropriate steps for the smooth functioning of the family court.
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