Kritika Srivastava, a third-year student at Fairfield Institute of Management and Technology, New Delhi has written this Article on “Salient Features of the Family Courts Act, 1984”.

Introduction

Family courts are a specialized form of the court responsible for handling matters involving family-related conflicts. These family courts handle disputes about marriage, divorce, maintenance, guardianship, and the couples’ property.

Family court settings are anticipated to differ from conventional court settings. The environment should be calm, easygoing, and laid back. Additionally, judges are not required to dress in robes or stand on an elevated platform.

To ensure that people are committed to the need to protect and preserve the institution of marriage, the Family Court was established. Its jurisdiction and powers are used to make decisions about the legality of marriages and other matrimonial matters, as well as to advance family welfare.

Family courts are not a novel idea, but they do exist in some Western nations. India’s judiciary is already overburdened with cases that have been lingering for years. Therefore, it was imperative that family issues—including divorce and child custody—be considered social therapeutic issues.

Definition

Family Courts are established with the goal of fostering amicable resolution of conflicts involving matrimonial and family concerns, as well as those related thereto.

A family court is a specialized court created to address legal issues resulting from familial relationships. The family court typically combines several different sorts of courts that deal with more specific family issues, like children’s courts and orphans’ courts.

The family court follows less strict rules of operation than regular civil or criminal courts. It is distinguished by unique intake procedures that weed out possible cases that don’t actually need judicial attention.

Origin of Family Courts in India

The late Smt. Durgabal Deshmukh originally underlined the necessity for family courts in India after visiting China in 1953 and having the opportunity to observe how family courts functioned there. She spoke with a few judges and legal experts about the issue before presenting Prime Minister Jawaharlal Nehru with a proposal to establish a family court in India.

The Law Commission then firmly advocated for the need for specific handling of divorce-related problems in its report from 1973 (the 54th report of the Code of Civil process).

A unique method must be used in lawsuits or legal proceedings involving family-related issues, according to an amendment to the code of civil procedure.

Therefore, it was deemed necessary in the public interest to set up family courts in order to swiftly resolve family issues.

After much discussion and debate, the Family Courts Act became effective on September 14, 1984. The Act’s main goal is to provide quick and inexperienced relief with the fewest formalities and difficulties possible.

The state of Rajasthan in India established the family court on November 19, 1985.

Objectives of Family Courts

1. This forward-thinking legislation’s primary goal was to expedite family law trials and resolutions. Conciliation, negotiation, or mediation can also lead to a resolution.
2. To grant the family courts jurisdiction over matters such as judicial separation, divorce, restitution of conjugal rights, the legality of marriage, property conflicts between family members, child legitimacy, guardianship, custody of children, and maintenance, among other things.
3. Making family court conciliation proceedings a requirement and using conciliation and settlement to resolve family conflicts.
4. To help parties agree to mediate their differences.

Jurisdiction of Family Court

The family courts now have the authority and jurisdiction that the District Court or Subordinate Civil Courts formerly exercised 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 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;
2. A suit or proceeding for determining the validity of a marriage or matrimonial status of a person;
3. A suit or proceeding in the matter related to the properties between the parties to a marriage;
4. A suit or proceeding for an injunction or order arising out of a marriage;
5. A suit or proceeding for declaring the legitimacy of a person;
6. A suit or proceeding for maintenance;
7. A suit or proceeding for the guardianship of the person, or custody of any minor.

Other Features of Family Courts

1. This Act’s provisions shall take precedence over any other provision of any other law currently in force or any provision of any instrument having effect pursuant to any other law other than this Act. This is one of the important features of this Act.
2. The High Court may make rules as necessary via gazette notifications, per Section 21 of this Act.
3. The Central Government’s Rule-Making Authority: Section 22 of the Constitution of India states that the Central Government may, with the Chief Justice of India’s approval, issue rules for the appointment of judges by a gazette notification.
4. The State Government’s Power to Create Regulations: Section 23 of the Act also grants the State Government the right to create regulations in conjunction with the High Court by publishing a gazette notice.

Family Courts Power over Evidence

Regardless of whether or not the evidence is admissible under the Indian Evidence Act of 1872, the Family Court is permitted to take it into account if it helps resolve a disagreement.

1. In family court, a judge can order the oral testimony of a witness to be recorded.

2. The Family Court judge may summon and cross-examine any person mentioned in an affidavit presented as evidence in court.

Appeal

Within 30 days after the date of the verdict, a High Court appeal may be lodged in opposition to the Family Court’s ruling.

Reconciliation between the parties by the Court

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. The family court may follow High Court rules or other suitable procedures.

In accordance with 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 in accordance with Section 9(3).

Dissolution of marriage

Given that India has one of the highest populations in the world, there are a lot of married couples there. A high number of married couples may lead to increased conflicts with families. And they will undoubtedly go to court to seek redress.

Child Custody

According to Section 7(1), the family court has the authority to appoint a suitable individual as the guardian of a minor and to provide them custody of the kid. The family court where the child typically dwells hears cases involving the child’s custody.

Security orders- Domestic Violence

Family court legislation doesn’t explicitly address the court’s authority on domestic abuse. And this is where family courts fall short. Despite this, the statute has no provisions addressing domestic violence-related issues. However, the Protection of Women from Domestic Abuse Act of 2005 (hereafter referred to as the “DV Act”) contains a clause that allows the family court to hear cases involving domestic abuse.

Maintenance

The family courts have jurisdiction over lawsuits or actions involving maintenance, according to the family court act’s explanation(f) of Section 7(1).

Property Disputes

The family court has jurisdiction over issues involving the property of the parties to the marriage, in accordance with Section 7(1)(c) of the Family Courts Act. Marital disputes typically occur after the grant of divorce.

Procedures followed by the family courts

The family court’s procedure is rather informal because there aren’t many drawn-out formalities. The primary reason for creating the family court was to quickly bring relief to the parties through a resolution. 

Section 10

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. In order to reach a settlement, the family court is empowered under Section 10(3) to establish its own 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.

Section 11

The family court can allow cameras to record its proceedings. In accordance with 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.

Section 14

Family courts follow informal procedures and only record relevant testimony, excluding lengthy witness statements. Any report, statement, or document connected to the subject is admissible under the Indian Evidence Act of 1872, according to Section 14 of the act.

Section 15

Additionally, in accordance with 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.

Overview (Contents) of the Family Court Act, 1984.

This Act comprises of total 6 chapters and 32 sections.

1. Short title, extent, and commencement
2. Definition

3. Establishment of family courts
4. Appointment of Judges
5. Association of social welfare agencies, etc
6. Counselors, officers, and other employees of Family Courts

7. Jurisdiction
8. Exclusion of jurisdiction and pending proceedings.
9. Duty of the Family Court to make efforts for settlement.

10. Procedure generally
11. Proceedings to be held in camera
12. The assistance of medical and welfare experts
13. Right to legal representation
14. . Application of Indian Evidence Act, 1872
15. Record of oral evidence
16. Evidence of formal character on affidavit
17.  Judgment
18. Execution of decrees and orders

19. Appeal

20. Act to have an overriding effect

21. Power of the High Court to make rules
22. Power of the Central Government to make rules
23. Power of the State Government to make rules.

Case Law

M.P. Gangadharan v/s. State of Kerala[1]

The Supreme Court ruled in M.P. Gangadharan v. State of Kerala that family courts should be formed not only because they are required by the Act but also because the state must be aware that it is required to provide the necessary infrastructure for the venue for dispute settlement.

Shyni v/s. George[2]

According to the court’s ruling in the case of Shyni v. George, a wife can impale a close cousin of her husband or even an unrelated third party on the grounds that the husband gave the property to them in a suit to reclaim the property. The Family Courts would have authority over this.

K.A. Abdul Jaleel v/s. T.A. Sahida

In the case of K.A. Abdul Jaleel v. T.A. Sahida, the court determined that a divorced wife was considered one of the “parties to the marriage” and that her petition to declare and divide any property they had accumulated together would be maintainable.

Conclusion

Before 1984, regular civil court judges presided over all family cases and took a long time to grant relief to the parties. In 1984, the parliament passed and brought into effect The Family Courts Act. The primary goal of the act was to move family and marital conflicts out of the overworked and traditional courts of law and into a straightforward court where a layperson could also grasp the court’s procedures. The act’s primary goal was to facilitate a settlement between the parties and swift relief for them by using a conciliatory approach. However, the system failed to accomplish these objectives. Today’s determination confirms the existence of the myth of the quick fix.

The various states’ inconsistent laws create ambiguity regarding how to apply the Act. Even so, the Act attempted to eliminate any gender bias in statutory law. The routine switching out of marriage counseling has prevented meeting the objective.

For the family courts to operate effectively and efficiently, they must use a number of dynamic measures.

[1] 2006 Latest Caselaw 313 SC

[2] AIR 1997 Ker 231