Introduction
The Family Court Act 1984 was enacted for the establishment of Family Courts with an aim to promote conciliation and speedy settlement of disagreement relating to marriage and family affairs and for related matters. The enactment of this Act is the result of the report of the law commission, and the hard work of different women’s associations and NGOs. The 59th Law Commission Report in 1974 suggested for the establishment of family courts by States and selection of Judicial Officers should be based on experience. Also, in the year 1975, the Committee on Status of Women suggested that family disputes should be dealt with differently than ordinary civil proceedings. The Government made an amendment in the Code of Civil Procedure in 1976 to adopt a special procedure for disputes concerning the family but this amendment did not help much. Finally, Different women’s associations and several NGOs working in the field of family welfare tried to pressurized the government to provide special courts for speedy trials in disputes related to the family. After this long-drawn process resulted in the enactment of the Family Court Act, 1984.
Concept of Family Court
Family court is not a new concept but they are already functioning in some western countries. The Judiciary of India is already overloaded with cases pending for years. So it was need of the hour to look at problems related to family, divorce, child custody, as a social therapeutic problem. The court which is in process of 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 problems like this could not and should not rest content with the assertions of the parties and their evidence only. The court engaged in this task requires a different approach which is less formal and a more active investigational approach is needed. In short, this should not be treated as litigation in which parties and their counsels 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 problems engaging the attention of the court.
Hence, this concept of family court is an integrated approach of different aspects. According to this concept, the family court structure should be such that it preserves the family, and to helps in stabilizing the marriage. Obviously, for such a system, the ordinary litigation system seems inappropriate.
Case Law
In case of M.P. Gangadharan v/s. State of Kerala[1], SC held that Family Court 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 infrastructures to the forum of dispute resolution.
An Overview of the Family Court Act 1984[2]
This Act comprises of total 6 chapters 32 sections.
Chapter 1
- Short title, extent and commencement
- Definition
Chapter 2
- Establishment of family courts
- Appointment of Judges
- Association of social welfare agencies, etc
- Counsellors, officers and other employees of Family Courts
Chapter 3
- Jurisdiction
- Exclusion of jurisdiction and pending proceedings.
Chapter 4
- Duty of Family Court to make efforts for settlement.
- Procedure generally
- Proceedings to be held in camera
- Assistance of medical and welfare experts
- Right to legal representation
- . Application of Indian Evidence Act, 1872
- Record of oral evidence
- Evidence of formal character on affidavit
- Execution of decrees and orders
Chapter 5
- Appeal
Chapter 6
- Act to have overriding effect
- Power of High Court to make rules
- Power of the Central Government to make rules
- Power of the State Government to make rules.
The objective of the family court Act 1984
The main objective of this progressive legislation was to provide speedy trials and quick settlements of family matters. Settlement can also be through mediation, negotiation, conciliation.
Effective from
In different states, the Act comes into force on different dates.
Basis and Power of establishment
It is to be established in cities or towns with populations over ten lakh or other areas of the state which deems necessary.
According to provisions of Act, State Government is empowered to establish Family Court and decide their Jurisdiction with the consultation of High Court of the concerned state. Jurisdiction and the number of judges can be altered by notification by the government.
Types of cases that are heard in family courts
- Dissolution of marriage
- Custody of child
- Domestic violence
- Maintenance
- Property disputes
Jurisdiction of the Family Court
Under the Family Court Act 1984, the Family court has jurisdiction in both civil and criminal matters. Under civil matters, it can deal with any suit and proceeding related to matrimonial issues, the legitimacy of any person, maintenance, and custody of child or access to any minor. In criminal proceedings, it has jurisdiction related to the maintenance of wife, children, and parents.
Any suit of the above-mentioned nature should necessarily be heard by the family court excluding the jurisdiction of the district court or any other subordinate court or any magistrate. Also, any such proceeding which is already pending before any other court or magistrate should be immediately transferred to the family court under the act.
Cases related to jurisdiction
In the case of Shyni v/s. George[3]court held that a wife can impale a close relative of her husband or even a stranger on allegations that the husband had handed over the property to them in a suit for recovery of the property. This would not be out of the jurisdiction of the Family Courts.
In the case of K.A. Abdul Jaleel v/s. T.A. Sahida[4]: the court held that the expression “parties to the marriage” were 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.
Duty of family court
The Family Court mainly focuses upon speedy settlement of the disputes in hand and if there is a possibility for settlement between parties in a case on their own, the family court should adjourn the proceedings of the case till the parties arrive at a settlement and this was also suggested by the 59th Law Commission Report.
Powers of Family Courts regarding evidence
Family Court is allowed to consider any evidence if it aids effectively in dealing with a dispute despite its admissibility under the Indian Evidence Act of 1872.
1. Judge of a Family Court has the power to order for recording the oral evidence given by a witness.
2. Family Court judge may summon and examine any person who is part of an affidavit submitted in the court as any form of evidence.
Appeal
An appeal against the judgment passed by the Family Court can be filed in High Court within 30 days of the date of judgment.
Challenges
The Family Courts Act, 1984 was progressive legislation to resolve family-related disputes through an innovative and faster forum. It was anticipated that this mode will work in a just manner and will achieve maximum success in dealing with family disputes. Family Courts were set up under Section 3 of this act having an objective to provide speedy settlement with lesser expenses and formalities, in cases related to marriage and family and to make an agreement between the parties for their faster resolution. But there are some challenges in fulfilling these objectives.
The following challenges are faced by this legislation.
1. Section 2 of the act deals with the definition part and some terms are vague. For instance, the term “family”, as a result, matters arising out of economic consequences which affect the family in various ways are not covered by the family court.
2. The establishment and formation of rules of family court is the responsibility of state government but various state governments have not yet been able to implement this act effectively and family courts are not working properly.
3. The situation became pathetic for women and children when the counselors and other officials got changed. If a case continues for a longer time and in the middle of it if the counsellor got posted anywhere else then it became difficult for the parties, especially women and small children to convey their problems again.
4. Family court follows the procedures of CrPC in the proceeding which creates difficulties for a layman to understand the complex law. This act hasn’t created any simplified rules which can be understood by a common man.
5. The act has failed due to the orthodox thinking of judges and the patriarchal attitude of the counsellors in ensuring gender justice.
Suggestions
The aim of family courts was to settle the disputes arising from a marriage with a conciliatory approach. But these objectives were not fulfilled fully due to various reasons. These are some suggestions which should be adopted by a family court to ensure proper working of the court and achievement of the objective of the Act.
1. Apart from making family courts, there should be an attempt to secure gender-based equality and remove biases of courts in women-related cases.
2. There should be provided related to the appointment of judges of family court i.e., some extra qualifications related to family matters should be there.
3. The procedure prescribed by the act should be simplified so that it could be easily understood by an ordinary man.
4. Family courts and concerned judges can consult various NGOs and other welfare societies to help the court in discharging its functions;
5. The counsellors should not be posted frequently and they should be trained well in family welfare matters.
Conclusion
The Family court Act, 1984 is a result of the struggle of various NGOs and women associations across the country. The main objective was to provide faster resolution of disputes in family matters. Earlier all the cases related to family mater were heard in ordinary courts, which takes a long time to judgment. Family court provides an opportunity to settle cases even amicably and at less litigation cost. The aim which the court has in mind is not achieved yet. The family courts still need appropriate methods for smooth functioning of trial and their aim should be that any laymen can understand the proceedings of the case. If some progressive amendments are made in this act, the aim of making special courts will be fulfilled.
[1]2006 Latest Caselaw 313 SC.
[2]THE FAMILY COURTS ACT, 1984 (chdslsa.gov.in).
[3]AIR 1997 Ker 231
[4](2003) 4 SCC 166
This article has been written by Mrityunjai Rai, 1st Year B.A. LL.B student at Army Institute of Law.
