PROJECT REPORT ON FAMILY LAW

PROJECT REPORT ON FAMILY COURTS AND INDIAN DIVORCE

NAME- LAXMI S. SANKESHWARI

ACKNOWLEDGEMENT

The internship opportunity I had with AAWEG CHARITABLE TRUST was a great chance for learning and
professional development. Therefore, I consider myself as a very lucky individual as I was provided with
an opportunity to be a part of it. I am also grateful for having a chance to prepare this project report
and meet so many wonderful people and professionals who led me though this internship period.

YOURS SINCERELY,

LAXMI S. SANKESHWARI.

S.NO. TOPIC PAGE . NO

1 ACKNOWLEDGEMENT 1

2 INTRODUCTION 2

3 ESTABLISHMENT OF FAMILY COURTS 2

4 STATUS OF FAMILY COURTS 3

5 JURISDICTION OF FAMILY COURTS 4

6 PROCEDURE OF FAMILY COURTS 5

7 INDIAN DIVORCE ACT 6

8 GROUNDS FOR DIVORCE 6

 9 CONCLUSION 8

10 WEBSITE 9

PROJECT REPORT ON FAMILY LAW

Introduction
India has one of the oldest legal systems and practices in the world. Its law and jurisprudence
stretch back to many centuries, forming a living tradition which has grown and evolved with the
lives of its diverse people. India is a land of diversified culture, local customs and various
conventions which are not in opposition to the statue or ethics. People of different religions as
well as traditions are regulated by all the different sets of personal laws in order to relate to
family affairs. India is a vast country with the second largest population in the world, so
naturally the numbers of married persons are also high. With the high number of married
persons, marital disputes also increase due to various reasons and the majority come to the
court for redressal.Family courts have a very crucial role to play in reducing the
load of disputes on an overburdened judicial system, providing relief to litigants, who are
forced to suffer prolonged delays in getting justice. Thus, this chapter deals with the origin and
development of family courts in India and discusses how the family law is applicable in the
process and functions of the family court. It also provides an overall view of the Indian family
court systems.

In M.P Gangadhar v. state of Kerala1 the SC 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 the infrastructure to the forum of dispute resolution.

Establishment of Family Courts

Section 3 of the Family Courts Act, 1984, deals the establishment of family courts. The
following statements of the Act provide the brief details of the establishment of family courts.

1. For the purpose of exercising the jurisdiction and powers conferred on a family court by this Act, the
State Government, after consultation with the High Courts, and by notification.

a. shall, as soon as may be after the commencement of this Act, establish in any area in the state
comprising city or town where the population exceeds one million, a family court.

b. May establish family courts for such other areas in the state as it may deem necessary.
2. The state government shall, after consultation with the High Court, specify, by notification, the total
limits of the area to which the jurisdiction of the family court shall extent and may, at any time, increase,
reduce or alter such limits.

The main objective of the family courts is to settle matrimonial disputes speedily by adopting simplified
procedure. To achieve the objectives, the state government is put under obligation to establish family
courts in the areas mainly in cities and towns, where the population exceeds one million. However
respective state governments may also establish family courts in the areas where it is necessary.
Subsection (2) of the Family Court Act says that the state governments are to consult their respective
High Courts and specify the local limits of the area to which the Family Courts were to be established.
Therefore, the territorial jurisdiction of the Family Court is limited to that of a District Court or as
the State Government may fix by notification in consultation with the High Court.

Concept of Family Court

In 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, custody of children
and trial of juvenile offenders should not be viewed in terms of failure or success of legal action, but as
social therapeutic problem. No court which is engaged in finding out what is better for the welfare of
the family, whether a marriage has broken down or not, who should have custody of children or which
spouse needs maintenance, should rest content with the assertion and contentions of the parties and
evidence led by them to prove or disprove their contentions and allegations. The court engaged in
this task requires a less formal and more active investigational and inquisitional procedure. In
short, this will imply that it is not a litigation in which parties and their counsel are engaged in winning or
defeating a legal action but parties, lawyers, social workers, welfare officers and psychiatrists, all are
engaged in finding out a solution to the problem or problems engaging the attention of the court.
Thus, the concept of family court implies an integrated broad-based service to families in trouble. It
stipulates that the family court Structure should be such as is meant to preserve the family, and to help
to stabilize the marriage. Obviously, for such a system, the adversary litigation system is hardly
appropriate. Such a system visualizes the assistance of the specialized persons and agencies

Status of Family Court

Under the Family Courts Act, 1984, to begin With, family courts are to be set up for a town or city whose
population exceeds one million. It is also provided that the State Governments may also set up family
courts for other areas. The family court may consist of one or more judges

Where there are more than one judges, each judge is entitled to exercise all or any of the conferred-
on family court. In such a case, one of them will be designated as principal judge and another as
additional principal judge. The powers of both me co-extensive. The retirement age of the judges of the
family court, like that of the High Court Judges is 62 years. The emoluments of the judges and terms and
conditions of services of the judges are to be determined by the State Government concerned in
consultation with the High Court. It appears that the status of the family court will be higher to the
District Court but certainly lower to the High Court, same appeals from the judgments, decrees and
orders of the family court will lie to the High Court.

Only those persons who have at least seven years’ experience as judicial officer or as member of a
Tribunal or who have held a post for that duration under the Government of India or a State
Government requiring special knowledge of law or have been advocates of a High Court for at least
seven years are eligible to be appointed as judges of the Family Court. Other qualifications may also be
laid down by the Central Government in consultation with the Chief Justice of India. For the
appointment of judges of family courts, preference will be given to women. It is also laid down that
"every endeavor shall be made to ensure that persons committed to the need to preserve the
institution of marriage and to promote the welfare of children and qualified by reason of their
experience and expertise to promote the settlement of disputes by conciliation and counselling are
selected". It is laudable, pious wish, but how am such persons to be found out? In our submission, for
the judges of family court, some knowledge of psychology, sociology, and social work will be
necessary. Such qualifications should be prescribed by the Central Government. Those persons
who are engaged in the research or teaching of family law and who are consequently expert in family
law matters are eligible to be appointed as judges of the family court under the Act. Since, the family
court system visualizes a less formal procedure, where legal technicalities and technical procedure 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 matters 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 a disagreement to para-familial matters, such as
inter-spousal assaults, familial assaults and other offences of 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 Causes, (b) suits for the
declaration of validity of marriage or spousal status, (c)suits regarding the properties of the spouses,
joint or individual, (d) suits for injunctions arising out of marital relationship, such as suit for injunction
to restrain spouse from taking second spouse in the life-time of the other or injunction from preventing
any other wrong, such as sale of joint property or other spouse’s property, (e) suits for
maintenance, (f) suits relating to guardianship and custody of minor children, and (g) application
relating to maintenance of wife, children and parents under Section 125, Criminal Procedure Code,
1973. If any statute confers jurisdiction in any other matters on the family court, then the court will have
competence to try such matters. One Wishes that para-familial matters too should have been brought
under the jurisdiction of the family courts. Thus, no matter under the Dowry prohibition Act can
be brought before the Family Court.
In Shyni v. George2, it was held that wife can implead a close relative of her husband or even a stranger
on allegations that the husband had handed the property to them in a suit for recovery of the property.
This would not oust the jurisdiction of the Family Courts.

In K.A. Abdul Jaleel v. T.A. Sahida3, the expression ’parties to the marriage was held to include a
divorced wife and a petition filed by her for declaration and partition of property jointly acquired by
them would be maintainable.

Procedure
The concept of family court essentially implies that we should do away with the traditional adversely
procedure. This means that different rule of procedure are to be devised. Thus, the rules of procedure
should be worded simply and should indicate the whole range of procedures from the commencement
of an action to its conclusion, including means to enforce judgments and orders; procedure should
be flexible so that diverse, at time complex problems of familial conflict are covered ; the
standard forms to meet all situations should be drafted; pleadings should stay away from the traditional
adversary or fault oriented approach, pre-trial processes should be laid down designed to provide
dignified means for parties to reconcile their difference and to reach amicable settlements without the
need of trial; free advice should be made available as to rights of parties as well as their responsibilities
and obligations and where children are involved, steps for immediate protection and their interest and
rights should be taken; and issues should be determined without any prejudicial delay. The language,
conduct, documents and legal representation should be simple without any technicalities. The pre-trial
documentation of the pleadings should be such that issues between the parties are clearly defined, this
will help in avoiding frivolous litigation, encourage pre-trial debate and settlement.

Since one of the main objectives of the family court system is to encourage and enable parties Togo into
a process of reconciliation, failing which, of conciliation, the family court judge should be able to pass
consent order if parties have been able to come to some settlement, without any formality of formal
hearing or trial of issues.

The Family Court Act, it seems opts for a less formal procedure. Although Section 10 makes the
procedure laid down under the Civil Procedure Code applicable to the family court, it is laid down that
the family court has power to evolve its own rules of procedure which will override the rules of
procedure laid down in the Civil Procedure Code and the Criminal Procedure Code whenever made
applicable. Sections 14, 15 and 16 of the Act provide for the informality of the procedure. Thus, any
document, statement, information relevant for the trial will be admissible in the 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 adversial system; he may just prepare a memorandum of
substance of evidence. A11 formal evidence will be tendered by affidavits, though wherever necessary,
a deponent may be orally manned. Similarly, the judge need not render a detailed judgment, though it
should contain a concise statement of the case, the points for determination, the decision and reasons
for the decision.
INDIAN DIVORCE ACT, 1869

Divorce is the legal dissolution of the marital union between a man and a woman. In India, divorce is
granted by the court of law after receiving a petition from either husband or wife Divorce is followed by
granting alimony, child custody, child visitation, distribution of property, distribution of debts etc.
Though the jurisdiction of divorce changes varies yet it can be classified as either no-fault divorce
(mutual divorce) or fault divorce. In some cases, the fault of the spouse may not be needed to be
proved. The concept of divorce must not be confused with the concept of judicial separation. Judicial
separation is the legal separation between the husband and the wife, granted by the court on petition
from either the husband or the wife or both. In judicial separation the marital tie between the husband
and wife continues to exist and neither of them enjoys the freedom to be re-married. Divorce must not
also be confused with the concept with annulment of marriage. Annulment of marriage renders the
marriage null and void from the first instance. The court declares the marriage to be null and void and
the husband and wife should treat the marriage as if it never happened. The concept divorce is different
from the other two measures of separation. It has a stronger legal binding and makes the
husband wife more responsible. Some of the laws discussed in the following are:

• The Hindu Marriage Act (1955).

• The Special Marriage Act (1954).
• The Divorce Act (1869).
• The Muslim Law.

The Divorce Act 1869, extents to the whole of India except the state of Jammu and Kashmir. This act
applies only to the Christians domiciled in India at the time of presenting the petition.

GROUNDS FOR DIVORCE

Section 10 of the act provides for the grounds for dissolution of marriage. Both the husband and wife
can move to court to seek a decree for divorce under this act. The grounds are as follows:

• ADULTERY: The respondent has committed adultery

• CONVERSION: The respondent has ceased to be a Christian by conversion to another religion
• LEPROSY: The respondent has been suffering from a virulent and incurable form of leprosy for
a period not less than two years immediately preceding the presentation of the petition
• VENEREAL DISEASE: The respondent has been suffering from a venereal disease in a
communicable form for a period not less than 2 years immediately preceding the
presentation of petition
• PRESUMED DEATH: The respondent has not been heard to be alive for continuous period of 7
years or more
• NON-CONSUMMATION: The respondent has willfully refused to consummate the
marriage and therefore the marriage has not been consummated.
• FAILURE TO COMPLY WITH THE DECREE OF RESTITUTION OF CONJUGALRIGHTS: The
respondent has failed to comply with the decree of restitution of conjugal rights.
 • DESERTION: The respondent has deserted the petitioner for a continuous term of 2 years or
more immediately preceding the presentation of petition.
• UNSOUND MIND: The respondent has been incurably of unsound mind for a continuous period
of not less than two years immediately preceding the date of presentation of the petition.
• CRUELTY: The respondent has treated the petitioner with such cruelty that it has created a
reasonable apprehension in the mind of the petitioner that it would be injurious to live with the
respondent. The act provides that the wife may also present a petition for dissolution of
marriage on the ground that the husband has committed an act of rape, sodomy or bestiality.

Types of Divorce Petitions

A couple can get a divorce with mutual consent, or either spouse may file for divorce without the
consent of the other. Divorce with Mutual Consent: When husband and wife both agree to a divorce,
the courts will consider a divorce with mutual consent. For the petition to be accepted, however, the
couple should be separated for over a year or two years (as per the relevant act) and be able to prove
that they have not been able to live together. Often, even when either husband or wife is reluctant, they
still agree to such a divorce because it is relatively inexpensive and not as traumatic as a contested
divorce. Matters such as children’s custody, maintenance and property rights could barged to mutually
couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent
of the other.

Divorce with Mutual Consent:

When husband and wife both agree to a divorce, the courts will consider a divorce with mutual consent.
For the petition to be accepted, however, the couple should be separated for over a year or two years
(as per the relevant act) and be able to prove that they have not been able to live together. Often, even
when either husband or wife is reluctant, they still agree to such a divorce because it is relatively
inexpensive and not as traumatic as contested divorce. Matters such as children’s custody, maintenance
and property rights could be agreed to mutually.

There are three aspects regarding which a husband and wife have to reach a consensus. One is alimony
or maintenance issues. As per law, there is no minimum or maximum limit of support. It could be any
figure or no figure. The second consideration is custody of the child. This must necessarily be worked out
between the parties, as it is inevitably what requires the greatest amount of time in divorce without
mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive
depending upon the understanding of the spouses. The third is property. The husband and wife must
decide who gets what part of the property. This includes both movable and immovable property. Right
down to the bank accounts, everything must be divided. It is not necessary for it to be fair, so long as it
is agreed to by both parties. The duration of a divorce by mutual consent varies from six to 18 months,
depending on the decision of the court. Usually, the courts prefer to end mutual consent divorces
sooner, rather than later. As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special
Marriage Act, 1954, the couple should be living separately for at least one year before divorce
proceedings can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated
for at least two years. Do note that living separately does not necessarily mean living in different
locations; the couple only needs to provide that they have not been living as husband and wife during
this time period.

Divorce without Mutual Consent:

In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as
if a husband or wife can simply ask for a divorce without stating a reason. The reasons for divorce are as
follows, though some are not applicable to all religions.

• Cruelty: Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India,
if one spouse has a reasonable apprehension in the mind that the other spouses conduct is likely
to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by
the spouse.
• Adultery: In India, a man that commits adultery (i.e., has consensual sexual intercourse outside
of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as
a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a
criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
• Desertion: One spouse deserting the other without reasonable cause (cruelty, for
example) is reason for divorce. However, the spouse who abandons the other should intend to
desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at
least two continuous years. Christians, however, will not be able to file a divorce petition solely
for this reason
• Conversion: Divorce can be sought by a spouse if the other spouse converts to another religion.
This reason does not require any time to have passed before divorce can be filed.
• Mental Disorder: If the spouse is incapable of performing the normal duties required in a
marriage on account of mental illness, divorce can be sought. If the mental illness is to such an
extent that the normal duties of married life cannot be performed.
• Communicable Disease: If the spouse suffers from a communicable disease, such as HIV/AIDS,
syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India
say that the other party can obtain a divorce.
• Renunciation of the World: If the spouse renounces his/her married life and opts for sanyasi, the
aggrieved spouse may obtain a divorce.
• Presumption of Death: If the spouse has not been heard of as being alive for a period of at least
seven years, by such individuals who would have heard about such spouse, if he or she were
alive, then the spouse who is alive can obtain a judicial decree of divorce.

CONCLUSION
As we know marriage and divorce laws vary from one custom to another but the essence remains the
same, that is, to provide justice to the victim. The law ensures that the husband and wife respect the
sacramental tie of marriage as well as one another but at the same time it ensures that nobody must
carry the burden of torture and disrespect and has full freedom to break this when necessary. Apart
from divorce there are various other ways by which a relief can be granted to the victim such as
restitution of conjugal rights and judicial separation. The law also ensures that the spouse is well
maintained even after divorce by directing the husband to pay alimony to the wife

WEBSITES

• www.lawyersclubindia.com
• www.indiankanoon.com
• http://www.indianlawcases.com/
• http://articles.timesofindia.indiatimes.com