Family Courts came into existence with the passing of the Family Court Act, 1984. The history of the idea of establishment of the Family Courts dated by the year 1953. Smt. Durga Bai Deshmukh had the opportunity to closely study the workings of Family Courts in China. As a result, she discussed the need for the establishment of Family Courts in the Indian legal environment. Gradually, it was pointed out by various women associations, welfare organizations, and individuals that family-related dispute matters should be resolved quickly and harmoniously. It was advocated that such matters are fragile and require a non-adversarial method of family dispute resolution. Further, it was realized that family matters, including divorce, alimony, and maintenance, custody or financial support to children should not be looked upon as two parties against each other fighting to win but as a social therapeutic problem needing solution.
It is important to understand why Family Courts were needed in the first place. The root reasons for the establishment of Family Courts and the passing of the Family Court Act, 1984 can be narrowed down to two. First, the Indian judiciary system is piled up with numerous civil and criminal cases which leads to years of litigation before the matter could be settled peacefully. Keeping in mind the nature of family disputes and the aim of preserving the institution of marriage, there was a need for speedy trials. In addition to that, it was argued that matters concerning the family are different and involve different jurisprudence. The courts dealing with family disputes should aim at ‘conciliation’ rather than ‘confrontation’. The aim is to conserve the family life and provide maximum fairness and minimum bitterness in case of irretrievable breakdown.
Section 3 of the Family Courts Act, 1984 establishes Family Courts in India for those towns and cities whose population exceeds one million or other areas if deemed necessary. Among other things, the act deals extensively with the appointment of judges, the association of welfare agencies, the duty of the Family Courts, assistance of medical and welfare experts, application of the Indian Evidence Act, 1872, provisions regarding appeal and judgment and procedures and jurisdiction of Family Court under Family Court Act, 1984. About the status of the family court, in Shalinaz v, Shirim, AIR 1995 Bom 30, it was held that the Family Court Act has precedence over other statutes.
To file a case in Family Court, it is important to understand what is the jurisdiction and procedure of Family Courts in India. The term jurisdiction can be defined as the extent to which legal actions and judgment can be made by a court of justice. For instance, it is not under the jurisdiction of the district court to accept the writ petitions. While the Procedure includes how proceedings will take place within the courtroom.
Jurisdiction of Family Court
Section 7 of the Family Courts Act, 1984 deals with the Jurisdiction of Family Courts in India. It was decided that all matters related to the family, such as separation, divorce, alimony and maintenance, custody, guardianship, education and financial support to children, etc. should fall under the jurisdiction of the family court. The list of matters concerning the family that can be filled in a family court is as follows:
- For nullity of marriage, restitution of conjugal rights, judicial separation, and divorce.
- For a declaration of matrimonial status of a person.
- For the property of the spouses.
- For a declaration as o the legitimacy of a person
- For maintenance
- Guardianship or custody of minor
In other words, if there is a matter of any of the above situations then the parties are required to appeal in the family court. Further, whether the para-family issues should be included under the jurisdiction of the family court is still controversial. The para-family matters include the issue of dowry, assault on either spouse, inter-familial contracts, familial assaults, and other criminal matters. It is argued that the abovementioned concerns should fall under the jurisdiction of the family court.
The Procedure of Family Court
As discussed earlier, the concept of family court is to transfer from the traditional adversarial procedure to inquisitorial, wherein judges play an active role in the reconciliation of the parties concerned. Section 10 of the Family Court Act describes Procedures to be followed in the family court. It states that the procedure laid down by the Code of Civil Procedure, 1908 applies to proceedings of family court. It is important to note that the Family Court falls under the branch of the civil court. Further, section 10 (3) allows the family court to form its own rules of procedures to arrive at a settlement between the parties. If the family court forms its own rules of the procedure, then it will override the rules of procedure laid down in Civil Procedure Code, 1908 and Code of Criminal Procedure, 1973.
The proceedings of the family court can take place on camera, i.e., privately. As per section 11 of the Family courts Act, if a party desires it can hold the proceeding in camera and the court is obligatory to accept such a request. However, confidentiality should not be confused with the secrecy of proceedings.
In conclusion, family courts were established to eliminate the intimidating and delaying nature of traditional courts. It was believed that judgment concerning familial matters needs preservation in nature rather than punitive. The aim is that the two parties should resolve their conflicts and tensions through the help of learned counsels. The lawyers, social workers, welfare officers, etc. come together to achieve this aim of the family courts.
Edited by: Harsh Nath Tiwari
Approved by: Purnima Ojha
- The Family Court Act, 1984, No. 66, Acts of Parliament, 1984 (India).
- PARAS DIWAN, FAMILY LAW, 280-284 (Allahabad Law Agency, 2021).