Family Courts: Origin and development

In India

Submitted by:

Prachi Malpani

PRN- 17010324039

Division C, Class of 2017-2022

Symbiosis Law School, Hyderabad

Symbiosis International University, Pune

In

January, 2019

Under the Guidance of

Prof. Ahmar Afaq

Assistant Professor

Symbiosis Law School, Hyderabad

 CERTIFICATE

The project entitled “Family Courts: Origin and development In India” submitted to the
Symbiosis Law School, Hyderabad for Code of Criminal Procedure as a part of Internal
Assessment is based on my original work carried out under the guidance of Prof. Ahmar Afaq
from December 2018 to March 2019. The Research work has not been submitted elsewhere
for award of any degree. The material borrowed from other sources and incorporated in the
research paper has been duly acknowledged. I understand that I myself would be held
responsible and accountable for plagiarism, if any, detected later on.

Name: Prachi Malpani

Date: 22/03/19
 ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to Prof. Ahmar Afaq for his
enlightening lectures. I would also like to express my sincere gratitude to our teaching staff
for guiding me the path towards gaining knowledge.

I would like to thank the Library Staff of Symbiosis Law School, Hyderabad as well for their
co-operation.
I would also like to thank my batch mates and seniors who inspired, helped and guided me in
making this project. I am grateful to some of my seniors/friends for their incredible guidance
and support.

Name : Prachi Malpani

Date: 18th March, 2019
Introduction
Family Courts are specialised courts established with the objective to maintain the welfare of
the family by using a multidisciplinary approach in resolving family disputes within the
framework of law. The need to establish family courts in India was first highlighted by late
Smt.Durgabai Deshmukh after her tour to China in the year 1953 where she got the
opportunity to closely study the family courts there. After she returned she discussed the
same with a few legal experts and certain Judges and made a proposal to the then Prime
Minister Pt. Jawaharlal Nehru to set up family courts in India. The need for family court was
a twofold policy, one to reduce the increasing backlog in the courts by setting up separate
courts for family matters and second to create a less formal platform to resolve family
disputes. Resolution of family disputes needs special methods which mean that the traditional
procedure needs to be modified. Hence, The Family Courts Act, 1984 was enacted
introducing family courts in India. Family Courts were established with the expectation to
facilitate dispute resolution of family matters through a forum that would work expeditiously
in a just manner with an approach that ensures maximum dignity of women and welfare of
the society. This paper will include how the family courts work in India, why they were
established and to what extent these courts have achieved their objective. Lastly, the paper
will highlight on where the family courts are lagging behind and what methods can be used to
make them achieve their purpose. The main aim of this paper is to understand how family
courts are different from the normal courts and how they can be improved in order to resolve
sensitive family disputes in a less formal and more comfortable manner.
Research Objectives

 This research paper is aimed towards understanding the working of the family courts
and their effectiveness in India.
 To understand the reason behind the establishment of family courts and to analyse its
evolution.
 To compare the working of Indian family courts to international family courts and to
analyse the differences.
 To make a statistical study as to how effectively the family courts are able to dispose
of the cases at their level itself.
 To understand the current scenario of family courts and analyse how they can be
improved
 To analyse if ADR mechanisms will be effective alternative to family courts.

Research Questions

1. Whether family courts actually effective and are they actually achieving the purpose for
which they were established?
2. What is the reason of so many pending cases and delay in disposing of cases? Whether
there are any alternatives to reduce the burden of the Courts?
3. What are the problems faced in family courts especially by women?
4. What are the necessary changes to be introduced for the better working of the courts?

Research Methodology

The study was done in a systematic manner, in three stages, viz data collection, data analysis,
and report writing. The challenging task in the beginning stage was the identification of
research organizations in the three metros with a good track record of empirical research in
law. A detailed literature review on the working of family courts in India was conducted.
Articles were read on the same. The need, evolution, and efficiency of family courts were
analyzed. The main aim of the Judiciary is to provide justice in the society but due to
increasing population and an enormous number of pending cases, it is required to modify the
current working of the courts and approach alternative mechanisms to ensure speedy dispute
resolution especially in family matters.
Literature Review
 In an article1 which was published in the initial years of the establishment of family
courts in India. Here the author has critically analysed what changes the courts made
in its initial stage and whether they are able to meet their objective. The author
pointed out all the drawbacks of the courts and portrayed how family courts were not
working efficiently. This article will be used as basis to analyse the changes and
development in the family courts since then. It will also give a clear idea about why
exactly family courts were established and will help analyse to what extent these
objectives have been met.

 In a paper2 the author has given a deep insight on The Family Courts Act, 1984. The
paper gives a detailed study about the procedure to be followed by the family courts,
the whole concept and jurisdiction of family courts. The author also highlights the
importance of training of personnel of the family courts. This article will help us
understand what role do judges, lawyers, etc. play in the functioning of the family
courts. However, this article does not prescribe any way as to improve the personnel
involved in the court system, which will be dealt with in the current research paper.

 The author in a paper3 has emphasised on how the introduction of family courts has
helped safeguard the right to justice which the author considers to be a basic human
right which is elevated to the level of a fundamental right. The author compares the
working of family courts to that of the Alternative Dispute Resolution mechanisms
and highlights that just like ADR the family courts are also prone to abuse as in both
institutions force the parties to settle. This paper will help in understanding how the
court system is similar to ADR methods and in the current paper the loopholes in the
working of family courts will be recognised and solutions will be suggested to see to
it that there is no abuse of the court system.

1
D. Nagasaila. (1992). Family Courts: A Critique, Economic and Political Weekly, 27(33), 1735-1737.
Retrieved from http://www.jstor.org/stable/4398748
2
Diwan P. (1985). THE FAMILY COURTS. Journal of the Indian Law Institute, 27(1), 101-109. Retrieved
from http://www.jstor.org/stable/43950901
3
Mathew, D. (2014). ARRIVING AT A SETTLEMENT UNDER FAMILY COURTS ACT, 1984:
DECONSTRUCTING THE ROLE OF THE JUDGE OF THE FAMILY COURT AND COUNSELOR. Journal
of the Indian Law Institute, 56(3), 376-385. Retrieved from http://www.jstor.org/stable/43953715
How Did Family Courts Come Into Existence

Family disputes are very different from other matters of litigation. The main object of normal
litigation matters is to determine the rights of the parties and decide who is right and who
liable for compensation or any other order of the court. However, in family matters, the
question is not to decide who is right and who is wrong but try to reconcile and resolve the
differences between the parties. Resolution of family matters requires a specialized procedure
that is designed to help parties in dispute to resolve their disputes and if needed to obtain
assistance. Hence, the traditional court procedure should be altered and replaced by a less
formal procedure.

Prior to the introduction of the Family Courts Act, 1984 family disputes are put before a
district judge who deals with all sorts of criminal and civil matters and he tries family matters
following the usual adversarial procedure. This means, a judge who tries matters of tort,
breach of contract, murder, rape, etc., also tries family disputes including child custody,
maintenance, divorce, etc.

It is now understood that the adjudication of family disputes is a completely different

concept, it has a different jurisprudence and a different culture. The courts deciding family
matters must function in a manner that tends to protect and not disrupt the family life, it must
be helpful for the parties and also the children and not affect their lives, and lastly, it should
be preservative rather than punitive towards the family and marriage. Therefore it can be said
that the adversary system promotes formalised and unrealistic response to family disputes.
The fact that adversarial process precludes reconciliation and resolution of the parties in
dispute concludes that such courts are not interested in finding the welfare of the family,
whether a marriage is broken or not, who must have the custody of the child, it all depends of
the contentions put forward by the parties and the evidence brought by them to support their
contentions. Family disputes are very delicate and must not be treated as other litigation
matters. The courts engage in deciding family matters must be less formal and follow
inquisitional procedure, meaning, it must not be litigation where the parties and their counsel
engage in winning and defeating but an inquisition where they come together to find a
solution to the problem with the intention to resolve and reconcile.

Family disputes need to be decided in a speedy manner because if a couple files for divorce
they cannot wait for five to ten years for it, family matters are very delicate and if not
instantly redressed then there will be no point to even bring up their matters before the court.
But the increasing number of pending cases in the courts makes it impossible to dispose of
family matters within a short period. When family matters are heard in open court, it becomes
difficult for the parties especially women, as it infringes their privacy and most things are
very intimate and sensitive which the parties might not feel comfortable in sharing before the
open court and in most cases they do not openly express their problems. There might be cases
where a woman files for divorce on the ground of cruelty and states that she was subjected to
domestic violence, harassment for dowry, etc., so in this case, the issues which have criminal
aspect are put before the criminal court and other issues like divorce, maintenance, etc., are
brought before the civil court. This becomes very difficult for the parties as for the different
aspects of the same case like divorce, cruelty, violence, demand for dowry, etc., different
applications are to be filled in different courts. This only leads to waste of time and money of
the parties and also adds up on the burden of the court and wastes the time of the court and
only creates complications. Hence, there was felt the need to establish one court which dealt
with all matters relating to family. It was felt that conciliation, counselling and individualized
treatment with the expertise of law is better suited for dealing with family disputes. A
platform must be created where the parties themselves present their case as only they can
make the court understand the dispute in the best way.

The need for the introduction of family courts was first highlighted by late Smt. Durgabai
Deshmukh when she returned from her tour to China where she had closely studied the
working of family courts. The need for the family court was a twofold policy, one to reduce
the increasing backlog in the courts by setting up separate courts for family matters and
second to create a less formal platform to resolve family disputes. The family courts were
established as a response to the demands of the women's movement ensuring women rights.
Family Courts: Objects And Purpose

The preamble of the Family Courts Act, 1984 gives the basic purpose for the establishment of
family courts as, to promote conciliation in, and secure speedy settlement of disputes relating
to marriage and family affairs and matters concerned therewith.

The purpose of family courts is to provide an integrated broad-based service to families in

dispute. It implies that the structure of family courts must be such as to stabilise and preserve
the family and to decide these matters with maximum fairness, keeping in mind the benefit of
both the parties and the family as a whole and with minimum distress and humiliation.

Today the concept of family unity is increasingly being undermined and this needs to be
strengthened. Hence, the basic objective of family courts is to preserve a marriage whenever
practicable and not allow families to break down due to litigation. This needs a speedy
settlement of family disputes adopting simplified less formal procedure. Successful handling
of family problems requires understanding and co-operating between a lot of things and
involving the well-being of the parties. The procedure followed in family courts is different
from the usual procedure; suitable modifications in the interest of justice and quick disposal
of family matters are thus desirable in the relevant laws and rules.

The act emphasises on settling family disputes by way of mediation and conciliation. Using
these approaches is to resolve disputes ensure that the matter will be solved by way of
agreement between the parties and also reduces the chance of further conflict. The main aim
of family courts is to give priority to the mutual agreement of the disputing parties over the
usual process of adjudication. In conclusion, the aim of these courts to create an environment
which is less formal where family matters can be resolved amicably.4

4
Smt. Usha Kumari vs Principal Judge, Family Court & ors AIR 1998 Pat 50
Family Courts Act: Salient Features

Family courts in every state have the power to frame their own procedure and once they
formulate their own rules and procedures they need not follow the procedure given under the
Code of Civil Procedure. There is no mandatory requirement for the family courts to record
evidence. There lies an option of appeal before the High Court against the decree of Family
Court, application for which must be filled within thirty days from the date of the judgement.
If the parties consent then in camera proceeding can also be conducted. There parties to suit
before the family court need not be represented by a lawyer and are required to represent
themselves before the court, however, the court may request the services of a legal
practitioner as amicus curiae. Family Courts aim at providing gender equality and in each
case try their best to preserve the marriage. These courts provide a friendly environment with
fewer complexities that helps the parties to resolve disputes in a better manner. Family Courts
also ensure speedy justice as it provides for mandatory conciliation and most of the matters
get settled before even actually coming to the court and the cases that come before the court
are also disposed within a specified time period.

The Act aims to provide for the establishment of Family Courts by the State Government and
make it obligatory on the State Governments to set up a Family Court in every city or town
with population of more than one million and also to enable the State Government to set up,
such Courts, in areas other than those specified above as and when required.

The Act makes it obligatory on part of the Family Courts to endeavour, to affect
reconciliation or a settlement between the disputing parties in the first instance. During this
stage, the proceedings will be informal and strict rules of procedure will not apply. The Act
also provides for the assistance of social welfare agencies counsellors, etc., during
conciliation stage and also to secure the service of medical and welfare experts.

The Act has also simplified the rules of evidence and procedure and also removed the
mandate on the parties to be represented by an advocate.
Jurisdiction of Family Courts

Every family court in the country has the jurisdiction and powers same as any District Court
or and subordinate Civil Court in all suits and proceedings of the nature dealt with in the
explanation to the Section 7 (1) of the Family Courts Act, 1984. Following matters can be
dealt with by the Family Courts, Decree for nullity of marriage, Restitution of conjugal
rights, judicial separation, dissolution of marriage, declaration of matrimonial status of a
person, matrimonial property matters, guardianship, custody of children, guardianship,
legitimacy of child under the Hindu Minority and Guardianship Act, 1956.

Family courts are empowered with jurisdiction not only under Section 7 of the Family Courts
Act, 1984 but also under many other statues like, they have power to grant decree of divorce
under the Muslim 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 deciding the 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.

There are certain circumstances under which Family Court do not have any jurisdiction.
Following are few examples of such cases, A suit for declaration of the illegitimacy of a
child, disputes relating to appointment to guardian of minor’s property, suit relating to
minor’s property, for proceedings relating to Muslim Women (Protection of Rights on
Divorce) Act, 1986, Muslim women can only apply for maintenance under Sections 3 and 4
of the Act and nothing else, suit involving dispute between family members concerning
property, suit for declaration for father to provide the required funds for daughter’s marriage,
suits joint family property where parties other than spouses make their claim cannot be
brought under the purview of matrimonial relationship.
Conciliation and Counselling in Family Court

Auxiliary services are an essential help to the family courts. No family court is capable to
succeed without a well organised support service. The primary motive of these support
services it to help the parties to conciliate in a less adversarial atmosphere. No family court
system can succeed without the support of well-defined and well developed auxiliary
services. The auxiliary service have the following four components, firstly family
counselling, conciliation and reconciliation services, secondly investigative services, thirdly
legal aid services and lastly enforcement services.

The counselling services must not be a part of the family court system, but a community
service that is easily available to the one who needs it. These services of conciliation and
reconciliation must be made available to parties before the disputing parties approach the
court and also when they are in court. The main aim of the family courts is to promote
reconciliation whenever it is possible and when it is not possible or not wanted by the
disputing parties, to ensure settlement of all issues that are to be addressed at the time of
dissolution of marriage. It also provides for post-adjudication counselling services to help
parties resolve post-divorce disputes.

As the family courts do not follow the usual court procedure it therefore requires to provide
investigational services. This means it is required to investigate the facts of the cases and
submit a report that will help the court to decide the case and also collateral matters like
education, custody and support of children, maintenance and alimony, etc.

The main objective of these legal aid services is to safeguard the interest of the parties first. It
is not about winning or losing but more about coming on the same page and settling issues.
The parties themselves must represent their case and when it comes to children they must
also be given chance to represent themselves before the court so that the court can understand
what is in the best interest of the disputing parties and also the child.

Family courts make all efforts to settle family disputes through mediation and other ADR
mechanisms.5 The courts with prior consent of the disputing parties refer it to the mediation
centre. To ensure timely disposal of these cases, the family courts set a reasonable time
period for the mediation centres to finish the process as otherwise it will lead to delay,

5
Smt. Guru Bachan Kaur vs Preetam Singh 1998 (1) AWC 275
however, if the court feels that there is a reasonable chance of settlement, the court may
extend the time limit.
Present Position of Family Courts in India

The complex procedure of the formal legal system and the usual course of the adjudication
cause unnecessary delay in the resolution of disputes which worsens the matters. The process
of litigation is very tiring and disturbing for families and also leads to financial and personal
losses which have devastating effect on individuals. People coming to the court for family
disputes are already disturbed and the regular process of adjudication adds on to their
hardships. This highlights the help and guidance of psychological experts and counsellors to
deal with these matters.

The Family Courts Act, 1984 specifies that a part is not necessarily entitled to be represented
by an advocate. It is allowed on prior leave of the court. The court usually allows the party to
be represented by a lawyer as not everyone understands or is familiar with all the formalities
and procedures that are required to be followed in the courts. The Act provides that, and case
that comes before the family court is first referred to conciliation and only if no agreement is
reached upon before the conciliator these cases are taken up for trial by the courts. These
conciliators are professionals appointed by the court. Once a matter is decided and a final
order is passed by these courts the aggrieved party has an option of appeal before the High
Court and this appeal is to be heard by a bench consisting of two judges.

The Act enables the Family Courts to evolve their own rules of procedure and once such rules
are framed they overrule the procedure prescribed by the Code of Civil Procedure. The Code
of Civil Procedure was also amended to attain the objective of setting up of Family Courts.

Trying of family courts in regular courts makes it very difficult for both the parties and the
court to come onto a conclusion as disputing parties are not comfortable disclosing all the
details before the open court and courts do not have enough time to look deeply into the facts
and circumstances of the cases and hence, separate family courts were established. The
establishment of the Family Courts Act has tried in every possible manner tried to help the
disputing parties to present their case in a better way, for this the Act even enables the parties
to represent themselves resulting in more insight to the case and better control on the decision
making procedure.

It is believed that relief in family disputes con be moulded meet the needs of each case.
Underlying this believe, is the notion of equality between both the disputing parties. The act
however does not take into consideration the prevailing discrepancy in power between
women and men. Here, two unequal people are brought together to negotiate and it is only
natural for the stronger party to take undue advantage of the situation and here, men are
undoubtedly the stronger one and ultimately women are put into a disadvantageous position.
Such situations tend to force women into compromises against their wishes. This set up of
negotiation not only increases the chance of women entering into unwanted compromises but
also into compromises which threaten their own interests and safety.

Though the Family Courts Act,1984 was a result of the women’s moment and was enforced
to safeguard the rights and interest of women in a better manner, where women can openly
put forward their problems, women face a lot of issues while fighting their cases even in
family courts.

Family Courts in India are in the right direction from the perspective of resolution of conflicts
that is, by forming a separate mechanism infused with differing procedural requirements as
compared to the ordinary court system. The thrust of this separate set up is protection of
gender rights and preservation of family. This Act provides for a procedure where the main
aim is for the parties to come up with a mutually benefiting agreement rather than winning
and losing the case.
Conclusion and Suggestions

A huge step was taken towards better disposal of family disputes and ensuring rights of
women by the enforcement of the Family Courts Act,1984, but only enforcement is not
enough, timely changes in the working of these courts is needed as to ensure proper disposal
of cases according to facts and circumstances of the case. There is a need of a vast manpower
of trained personnel for the effective working of the courts and the auxiliary services. There
is a requirement of continuous training and education programme where the Family Court
judges, staff members and lawyers are completely involved. All the people involved in the
working of the court must be educated in family law, physiology, sociology, and social
welfare before disposing their duties. They must be regularly educated and updated about the
aspects governing family law and other related issues.

There is a need for establishing permanent bodies or institutions that will take up the
continuous research and training matters of family law and other related issues which will
help Family Courts fulfil their objective. A family law institute can be set up at national level
and training centres can be established at state level for the same.

The Act should be made more women centric and must provide safeguard to women in rights
over matrimonial home and must be made as primary choice which deciding the custody of a
child, like, a provision could be made that, in cases of judicial separation or divorce on
grounds of cruelty the women must be given the right to continue residing in the matrimonial
house. The act should also make better provisions in relation to the matter of maintenance
where, for instance, compulsory interim maintenance should be ordered by the court during
the pendency of the case especially for women who are not self-dependent. In family cases all
matters should be automatically pursued and there must not be a need for a fresh application
each time for execution proceedings. The mandatory provision of conciliation must be made
completely voluntary and also it must be conducted by an outside professional and not a court
appointed one. Lastly, the Family Courts must be structured in a manner that they aim at
promoting gender justice and to ensure this more number of female judges should be
appointed in Family Courts.