Important Aspects of the Family Court Act

H. Aishwarya, a 4th-year B.A.LL.B.(Hons.) student from PES University, Bengaluru has written this Article on “Salient Features of the Family Court Act”

Meaning of the term Family Court

Family Court refers to a Court that is established under Section 3 of this act. These are the Courts which are involved in the disposal of cases which are related to family matters. Therefore, they are specialized types of Courts concerned only with family matters. The family matters undertaken in such Courts include Divorce, Marriage, Guardianship, Maintenance and the properties held by the spouses.

The environment within a Family Court is comparatively informal and relaxed which is very different from the environment in regular courts. The judges are not required to put on robes and be situated on a raised platform.

Origin of Family Courts in India

Late Smt. Durgabal Deshmukh was the one who had initiated the establishment of the Family Courts. It was suggested after she toured China where she observed the proceedings which happened in the Family Courts in the year 1953. She discussed her intention of opening Family Courts with several experts and had initiated a proposal with former Prime Minister Jawaharlal Nehru to set up Family Courts in India.

The Law Commission in its Fifty-Fourth report on the Civil Procedure Code submitted in 1973, has strongly emphasized that the matters related to Divorce needed a special handling. Later, the Civil Procedure Code had been amended recommending a special procedure which was required to be adapted while dealing with matters related to the family. Even the public interest could be seen in the establishment of Family Courts solely to deal with family matters. After immense debate and discussions, the Family Court Act came into force on 14^th September 1984. The idea behind the establishment of the family Courts was to provide relief as fast as possible whenever it comes to family disputes. The first Family Court in India was established in Rajasthan on 19^th November 1985.

The Supreme Court ruled in M.P. Gangadhara v. State of Kerala (2006 SC 2360) that family courts should be established not only because they are mandated by the Act, but also because the state is obligated to ensure the availability of suitable facilities for the resolution of disputes. The two important pillars on which the Family Courts focus are Conciliation and Counseling.

Objectives and Purpose of the Family Courts

1. To compel the state to construct an appropriate amount of Family courts.
2. To grant the family courts jurisdiction over matters such as judicial separation, divorce, recovery of conjugal rights, the legality of marriage, property conflicts between family members, child legitimacy, guardianship, custody of children, and maintenance, among other things.
3. To require family courts to conduct mediation hearings.
4. To use conciliation to resolve family conflicts.
5. Resolution and conciliation.
6. To offer social and medical support to help the Parties reach a conciliation agreement to resolve their differences.
7. To forbid solicitors from serving other than as amicus curiae.
8. To make the laws of evidence simpler.

Establishment of the Family Courts (Section 3 of the Family Courts Act)

Section 3 of this legislation states that the State government must create the Family Court in every area of the state with a population greater than 1 million people or anywhere it deems necessary, after consulting with the High Court. The State government will define the boundaries of the region that the Family Court has jurisdiction over consulting with the High Court. Additionally, it has the power to change, expand, or diminish the Family Court’s jurisdictional boundaries.

Appointment of Judges (Section 4 of the Family Courts Act)

Section 4 of the Family Courts Act of 1984 mentions the rules for judge appointments in the Family Court. After consultation with the High Court, the state government has the authority to name one or more individuals as judges of the Family Court. Any judge may be appointed by the state government as the Principal Judge and any other judge as the Additional Principal Judge after consultation with the High Court.

The following criteria must be met to be appointed as a judge of the Family Court, which were also listed in this section:

1. He must have held a position requiring specialized legal knowledge under the control of the Centre or a State for at least seven years, or he must have served as a member of a tribunal or in a judicial office in India.
2. He must have spent at least seven years practising law as an advocate before the High Court or two or more courts of succession;
3. He must meet the requirements set forth by the Central Government, as determined by the Chief Justice of India;
4. He couldn’t have passed the age of sixty-two.

It is important to make sure that the judge chosen during the selection process has the skills necessary to defend the marriage, advance the welfare of the children, and settle a conflict through mediation and counselling. It is important to make sure that women are given preference when choosing the judges. The State Government will choose the judges’ salary or honorarium, other payments of benefits, and other terms and conditions after consultation with the High Court.

An association of social welfare agencies as well as counsellors (Section 5 and 6 of the Family Courts Act)

The state government may issue regulations governing the affiliation of the following individuals or organizations with the family court, under Section 5 of the Family Courts Act, after conferring with the High Court:

1. Social welfare-related organizations or institutions;
2. A professional who will work for the family court’s welfare; Any individual who works in the social welfare sector;
3. Anyone else whose presence will guarantee that the family court operates efficiently.

According to Section 6 of this Act, the State Government shall, after contacting the Family Court, assess a sufficient amount of Counselors, Officers, and Other Employees who will aid the Family Court in effectively carrying out its functions and shall guarantee that there is a presence of such Counselors, Officers, and Other Employees. The family court’s operation depends heavily on the counsellors. Effective counselling has the potential to resolve the majority of family court matters. Therefore, it is important to guarantee that the family court counsellors are chosen fairly. 

Jurisdiction of the Family Courts (Section 7 of the Family Courts Act)

The family courts now have the authority and jurisdiction that the District Court or Subordinate Civil Courts formerly possessed in their lawsuits and processes, according to Section 7 of this Act. The following are the types of lawsuits and proceedings described in this section’s explanation:

1. A lawsuit or other legal action seeking a declaration of nullity of marriage, the restoration of conjugal rights, or the dissolution of the parties’ marriage;
2. A lawsuit or other action to ascertain a person’s marital status or marriage’s legality;
3. A lawsuit or other legal action in connection with a marriage-related property dispute
4. A lawsuit or other process brought about by a marriage that seeks an order or injunction;
5. A lawsuit or other legal action to determine someone’s eligibility;
6. A maintenance action or process;
7. A legal action or proceeding to get custody of a child or guardianship of the person.

According to Section 7(2), the family courts also have the authority to exercise any other jurisdiction that may be provided for by another statute as well as the jurisdiction that is conducted by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, 1973.

Reconciliation between the parties (Section 9 of the Family Courts Act)

The family court must work to foster the parties’ reconciliation, according to Section 9 of this legislation. According to Section 9(1), the family court must attempt to persuade the parties to resolve their dispute through negotiation in every suit or proceeding. To this end, the family court may follow the rules established by the High Court or any other rules or procedures it deems appropriate.

Per Section 9(2), the court may adjourn the proceedings until the parties achieve a settlement if it determines that there is a realistic likelihood of settlement at any point throughout the hearing. Additionally, the authority outlined in subsection 2 is an addition to the family court’s authority under Section 9(3).

Procedures undertaken by the Courts (Section 10, 11, 14, 15 of the Family Courts Act)

The general procedure used by the family courts is given out in Section 10 of the Family Courts Act of 1984. According to Section 10(1), the family court is considered to be a civil court with all of that court’s rights and privileges when the Code of Civil Procedure, 1908, is applied to its lawsuits or other procedures. According to section 10(2), the family court proceedings and lawsuits brought under chapter IX of the code are governed by the requirements of the Code of Civil Procedure, 1908. To settle, the family court is empowered under Section 10(3) to establish its procedure based on the specifics of the lawsuit or action or the reality of the allegations made by one party and rejected by the other.

The family court can allow cameras to record its proceedings. Under Section 11 of the act, the family court’s proceedings may be conducted in secret if the judge determines it is appropriate or if a party requests it.

The family courts have less formal procedures; therefore they don’t record the long testimony of witnesses; only testimony pertinent to the case is recorded. Any report, declaration, or documentation connected to the subject is acceptable under the Indian Evidence Act of 1872, according to Section 14 of the act. Additionally, under Section 15 of the Act, only the portion of a witness’s testimony that is pertinent to the lawsuit or proceeding needs to be recorded by a family court, and both the judge and the witness must sign the document. 

Help acquired from the Medical as well as Welfare experts (Section 12 of the Family Courts Act)

According to Section 12, the family court may consult with medical and welfare experts to encourage communication between the parties. This section gives the family court the freedom to hire a medical expert, another person (preferably a woman), who has no ties to either party, a professional who will advance the welfare of the family, or any other person who can assist the family court in carrying out its duties.

Challenges Encountered by Family Courts

To provide an innovative forum for resolving family-related conflicts, the Family Courts Act, of 1984 was passed. It was projected that this forum would operate fairly and ensure the family’s overall well-being. With this perspective in mind, Section 3 of this act established the Family Courts. The major goals of the family court were to make an agreement between the parties for their reconciliation and to enable quick resolution of family and marriage-related problems with less costs and formality. But this goal has not yet been achieved.

1. Some terms are defined in Section 2 of the law. The term “family” has not, however, been defined, therefore issues originating from economic implications that affect the family in different ways are not dealt with by the family court. The family court only handles divorce, maintenance, and marriage-related issues. 
2. The Act gives state governments the authority to establish rules that will govern how family courts operate in their jurisdictions, but most state governments haven’t made good use of this authority to establish regulations and establish family courts.
3. When the counsellors and other officials kept switching, the situation got worse. It became challenging for the parties, especially women, to express their difficulties again if a suit went on for an extended period and the counsellor was replaced in the middle of it. A similar situation was seen in Tamil Nadu, where marital counsellors would alternate every three months.
4. Because the family court abides by the rules of the code of civil process when hearing cases or conducting proceedings, it is challenging for the average person to comprehend the complex law. There are no simplified regulations that even the average person can understand as a result of the act.
5. The act has also eliminated the role of solicitors in family court litigation, making it more difficult for the average person to comprehend the rules of process and formalities. In these situations, the parties to a lawsuit must rely on the court clerks and peons.

Suggestions to be imparted within the Family Courts

The purpose of family courts is to quickly provide relief to the parties through the settlement of marital issues using a conciliatory approach. But for a variety of reasons, including unclear court process, poor infrastructure, bias advice, a lack of attorneys, an ineffective execution mechanism, and many others, these goals were not achieved. To ensure proper operation of the court, a family court should embrace the following recommendations:

1. Family courts solely exist to mediate family conflicts using a conciliatory strategy. They don’t try to guarantee gender equality in any way. The conflicts can be settled in a way that respects women. However, neither the government nor the legislature have considered amending the statute.
2. Based on their qualifications as District Court judges, the family court justices are chosen. This procedure needs to be altered. There should be a planned programme where judges can receive training on gender justice. Additionally, judges need to have solid training in handling family-related conflicts.
3. Counsellors’ roles should be made clearer because they only care about family reunions and are uninterested in a woman’s interests or security. They should receive training to help them resolve conflicts more impartially.

Reference

https://www.coursehero.com/file/31308963/Salient-features-of-Family-courts-Act-1984pptx

https://byjus.com/current-affairs/family-courts

https://testbook.com/articles/family-courts