Family Courts Act, 1984 [Project]

Family Courts Act, 1984

Submitted To:

Submitted By:

Dr. Jai Mala Narotra

Raja Sanmanbir Singh

UILS, Panjab University

89/12, BA LLB 4 Semester

th

UILS, Panjab University


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. 3468 3 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 gen erations. 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 spee dy 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. The Family Courts Act, 1984 was part of the trends of legal reforms concerning wom en. Because of the building pressure from various institutions lobbying for the welfare of women all o ver 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. The formation of Family Courts was a mile stone in the history of Indian judiciary. The Family Courts Act 1984 established the Family Courts through a Gazette notification by the Central Government. These courts are to be established in a town or city where the population exceeds one million or in any area where the State Government considers to establish it. One or more judges constitute the Family Courts but each judge is competent to exercise all the powers of the court. 1

In M.P. Gangadharan v. State of Kerala , the Supreme Court has held that Family Courts should be established not only because it is provided in the Act but the state must be alive to the situation that It has a duty to provide all infrastructure to the forum of dispute resolution.

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2006 SC 2360

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Objectives

The Preamble to the Family Courts Act, 1984 enacted by the Indian Parliament states that it is “An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.”

Functions

The Family Courts are free to evolve their own rules of procedure, and once a Family Court does so, the rules so framed override 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 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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Legal Jurisdiction of Family Law Courts

In countries where the family court system exists there is still a controversy as to what mtters should come within the jurisdiction of the Court. There is an agreement that all family law matters, such as marriage, matrimonial causes, maintenance and alimony, custody, education and support of children, settlement of spousal property and guardianship and custody of child‟s person and property should come within the jurisdiction of the court. But there is disagree as to para-familial matters, such inter-spousal assaults, familial assaults, inter-familial torts and contract. Parliament has favoured the former view. The legal jurisdiction of Family Courts extends to all matters that pertain to matrimonial issues, maintenance, alimony and custody of children in a marital dispute or a divorce. Further, Family Courts deal with the following: 

Suits or proceedings between parties to a marriage for a decree of restitution of conjugal rights, judicial separation, nullity of marriage or divorce.

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Maintenance related issues.

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For an order of injunction in certain circumstances a rising in a matrimonial relationship.

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For declaring legitimacy of any person.

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Suits or proceedings between parties regarding dispute about the property.

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Guardianship or custody of any minor or child.

What Makes Indian Family Courts Unique

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Family courts are empowered to formulate their own procedures but till then they have to follow the Civil Procedure Code. Evidence need not be recorded. Judgment can be concise with statement of the case, points for determining decision and reasons. Appeal to the High Court can be filed within thirty days from the date of judgment, order or decree of the Family Court. If the party desires, in camera proceedings can be conducted. No party to a suit or proceeding under the Family Court shall be entitled to be represented by a legal practitioner but the court may requisition the services of a legal expert as amicus curiae .

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Camera Proceedings and Exclusion of Lawyer

It is now accepted in most countries as well as India that matrimonial proceedings should be in Camera and the confidentiality of the court record should be maintained. Section 11 of the act makes it obligatory on the part of the court to hold the proceedings in camera if any party so wishes. In a given case, they may be held in camera if the family court so desires. One should not confuse confidentiality of the proceedings with secrecy. In any democratic system, the public is entitled to know the way justice is administered. No court should operate in secrecy. Constructive criticism, research and proposals for reform can only come from the knowledge of the ways and procedures by which the courts operate. And this is precisely what Section 11 lays down. In some countries, there is a strong opinion for the exclusion of the lawyer‟s service from the family court and „do-it-yourself‟ divorce is being propagated. In undefended cases and in cases where parties are in a mood to settle issues, the services of a qualified lawyer will hardly be needed. But in complicated and hotly contested cases, dispensation of lawyer‟s service will undermine the rights of the parties and may harm them. Most of the people are so upset in a crisis, particularly in marriage-crisis, as to not be able to file any papers methodically, even to think clearly and would gratefully employ the lawyer to relieve themselves of another burden. Section 13 of the Act favours dispensation of the service of the lawyer, though the family court may seek the assistance of a legal expert as amicus curiae whenever it considers to do so is necessary in the interest of justice. The Bombay High Court has expressed the view that the section does not bar the presence of the advocate and wherever necessary, the court should freely 2 make available the presence of the advocate. 3

In Kailash Bhansali, v. Surender Kumar , husband filed an application to be represented by legal practitioner and the wife was claiming harassment on the part of the husband. Order appoint ing legal practitioner for both was passed which was held by the High Court to be improper.

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Leela v. Mahadeo, 1991 Bom. 105 2000 Raj. 390

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Association of Social Welfare Agencies

The State Government may, in consultation with the High Court, provide, by rules, for the association, in such manner and for such purposes and subject to such conditions as may be specified in the rules, with a Family Court of,(a) institutions or organisations engaged in social welfare or the representatives thereof; (b) persons professionally engaged in promoting the welfare of the family; (c) persons working the field of social welfare; and (d) 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.

Counsellors, officers and other employees of Family Courts

(1) The State Government shall, in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such counsellors, officers and other employees as it may think fit. (2) The terms and conditions of association of the counsellors and the terms and conditions of service of the officers and other employees, referred to in sub-section (1), shall be such as may be specified by rules made by the State Government.

Decree of Family Court – Civil Court’s Jurisdiction

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A Civil suit to declare the decree of Family Court as null and void is not maintainable. Family 5 Court‟s jurisdiction will have precedence over our matrimonial and family law statutes.

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Shahnaz v. Shirim, 1995 Bom. 30 Ibid., Also see Rajan v. Shobha, 1995 Bom. 246

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Scope of interference in appeal in order of Family Court

No specific procedure has been prescribed by the statute to be followed by Family Court deciding application for custody of minor child. The only thing to be considered by Court is whether the procedure adopted by Family Court was natural justice. Paramount consideration 6 was welfare of the child.

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 enga ging 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 co urts do not face any hindrance in their working. These small steps, if ex amined 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. The lack of uniformity regarding the rules laid down by different states also leads to confusion in the proper application of the Act. Though the Act was aimed at removing the gender bias in statutory legislation, the goal is yet to be achieved. The frequent changing of marriage counsellors is causing hardship to women who has to explain her problems afresh to the new counsellors each time.

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Dr. Rohit Dandekar v. Dr. Raj Kavitha, (2004) 1 DMC 216 (Kant.)(DB)

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References:

1. „The Family Courts Act, 1984‟ - Bare Act 2. „Modern Hindu Law‟ – Dr. Paras Diwan 3. http://www.legalhelpindia.com/family-courts-act/family-courts-section.html 4. http://www.legalserviceindia.com/article/l356-Family-Courts-in-India.html 5. http://ncw.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf 6. http://www.lawisgreek.com/why-we-have-family-law-courts-in-india 7. http://indialawyers.wordpress.com/tag/family-court/ 8. http://dcw.delhigovt.nic.in/Family%20Courts.htm 9. http://www.ektamadurai.org/public/pdf/Family_Court_Study_Book_let.pdf 10. http://www.iaml.org/cms_media/files/adr_in_indian_family_law.pdf 11. http://www.24dunia.com/english/search/objectives-of-family-court-act.html 12. http://www.scribd.com/doc/37050718/Working-of-Family-Courts-in-India

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Family Courts Act, 1984 [Project]

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