FUNCTIONING OF FAMILY COURTS IN INDIA-

SUCCESS OR FAILURE: A CRITICAL STUDY

SUBMITTED TO DR ARUN UPADHYAY

SUBMITTED BY
MD ABID HUSSAIN ANSARI
2ND SEMESTER
LLM FAMILY LAW
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 FAMILY COURT IN INDIA: ORIGIN

Marriage as an institution has become the subject of great judicial scrutiny. There are a
number of judicial provisions dealing with marriage and its various aspects. Until 1984,
matrimonial and other family matters fell within the jurisdiction of the ordinary civil courts of
the country, where other civil matters were also litigated. However, most western countries
had established special courts familiarly known as Family Courts in order to deal with diverse
matters like divorce, separation, maintenance, custody of children, etc. It is generally
accepted that litigation in family matters needs to be less formal, less inquisitorial and less
adversarial.

In India, the need of establishing the family courts was imagined by Late Smt. Durgabai
Deshmukh in 1953 after the tour of Peoples Republic of China. She had the opportunity to
study about family courts after discussing the subject with Justice Chagla and Justice
Gajendragadkar and other legal experts. After this, she proposed this idea to the Indian
Prime Minister i.e., Pandit Jawaharlal Nehru regarding it set up a new class of courts meant
for Family issues. 1

The formation of family court was a mile stone in the history of Indian judiciary. In 1984 the
Government of India after the recommendation of the Law Commission in their 59th Report
the family courts were created by a Gazette notification of the Central Government. These
family courts are to be established in a town or city where the population exceeds one million
or in any area where the State Government considers establishing it. One or more judges
constitute the Family Courts but each judge is competent to exercise all the powers of the
court. Such courts should endeavour to save and stabilise the institution of marriage, rather
than destroy it. It was with these social objectives in mind that India opted for the
establishment of family courts by passing the Family Courts Act in 1984.

The matrimonial litigation is one of the traumatic experiences in the lives of parents and their
children just because it tears apart the relations between them. Apart from emotional
problems, it creates many legal, social and practical complications which break down the
family relationship. It is unfortunate; however, that generally the only way available to

1
Article of Family Courts in India: An Overview, downloaded from the website of
http://www.legalserviceindia.com/article/1356.

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parties to obtain relief from an unhappy and intolerable relationship is by subjecting
themselves and their spouses to the hazards of ordinary court procedures. 2

In India the Hindu Marriage Act, 1955 was passed by the parliament in order to deal with the
issues related Hindus and till date, several amendments have been made to liberalize the
grounds for divorce; coupled with that, the Courts have also so construed and applied the
provisions as to provide maximum relief with least hardship to any of the parties. The same is
true in regard to other personal law statutes governing Christians, Parsis and Muslims as
well.3

Thereafter, the Law Commission of India in its report, as early as 19734, strongly
recommended the need for special handling of matters pertaining to divorce. 5 The Law
Commission of India in its 59th report in 1974 had also stressed that in dealing with disputes
concerning the family dispute, the court should adopt an approach radically different from
that adopted in ordinary civil proceedings and that it should make reasonable efforts for
settlement before the commencement of trial specifically for family dispute.6

In India, the family courts were established in various states. Firstly, in the state of Rajasthan
on 19.11.19857 followed by the state of Andhra Pradesh on 15.02.19958.

OBJECTIVE

The Preamble to the Family Courts Act, 1984 enacted by the Indian Parliament states that it
is An Act to provide for the establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of disputes relating to marriage and family
affairs and for matters connected therewith.

The object for establishment of family courts in India is to promote the process of
conciliation and secure speedy settlement of disputes relating to marriage and family affairs
and for matters connected therewith as it affects the basic structure of the society.9

2
Report on Working of Family Courts and Model Family Courts, held on 20.3.2002 by National Commission for
women, New Delhi.
3
http://www.legalserviceindia.com/article/1356
4
Fifty Fourth Report on the Code of Civil Procedure
5
Marriage Laws & Family Courts Act, by E.L. Bhagiratha Raos, 10th edn., 2013, Asian Law House, Hyderabad
6
Report on Working of Family Courts and Model Family Courts, held on 20.3.2002 by National
Commission for women, New Delhi
7
Act enforced on 19.11.1985 (vide Not. No.79/17/85, dt.18.11.1985
8
Under Notification No. S.O. 92 (E), dt.6.2.1995

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Section 3(1) (a) of Family Courts Act, 1984 says that every state government after
consultation with the High Court and by notification establishes family court for every area in
the State comprising a city/town whose population exceeds one million and under Section 3
(1) (b) says that it may establish family courts for such other areas in the State as it may deem
necessary.

Section 3 (2) empowers the state government after consultation with the High Court, specify,
by notification, the local limits of the area to which the jurisdiction of a family court shall
extend and may, at any time, increase, reduce or alter, such limits.

In the matter of Gangadharam v. State of Kerala 10, the court of law has held that the place of
the family court need not be permanent. It can be shifted from one place to yet another place
within the area.

Section 4 (1) says that the State Government may, with the concurrence of the High Court,
appoint one or more persons to be the judge or judges of a family court to deal the dispute
related to it.

Section 4 (2) (a) provides that when a family court consists of more than one judge, each of
the judges may exercise all or any of the powers conferred on the court by this Act for the
time being in force.

Section 4 (2) (b) provides that the State Government may with the concurrence of the High
Court appoint any of the judges to be the principal judge and any other judge to be the
additional Principal Judge.

Section 4 (2) (c) that the principal judge may, from time to time, make arrangements as he
may deem fit for the distribution of the business of the court among the various judges.

Section 4 (2) (d) says that the additional principal judge may exercise the powers of the
principal judge in the event of any vacancy in the office of principal judge or the principal
judge goes on leave.

For appointment as judges, the persons should have seven years experience in judicial office
or the office of a member of a tribunal or any post under the Union or a State requiring

9
Abdul Jaleel v. Shahida, AIR 2003 SC 2525
10
AIR 2006 SC 2360

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special knowledge of law11, or persons should have seven years experience as an advocate of
a High Court or of two or more such courts in succession 12.

The Central Government with the concurrence of the Chief Justice of India may prescribe
some other qualifications13 and also made rules for other qualifications for appointment of a
judge of the family court. 14

FUNCTIONS

The Family Courts are free to evolve their own rules of procedure, and once it does so, the
rules so framed override the rules of procedure contemplated under the Code of Civil
Procedure. In fact, the Code of Civil Procedure was amended in order to fulfil the purpose
behind setting up of the Family Courts. Special emphasis is put on settling the disputes by
mediation and conciliation. This ensures that the matter is solved by an agreement between
both the parties and reduces the chances of any further conflict. The aim is to give priority to
mutual agreement over the usual process of adjudication. In short, the aim of these courts is
to form a congenial atmosphere where family disputes are resolved amicably. The cases are
kept away from the trappings of a formal legal system.

The Act stipulates that a party is not entitled to be represented by a lawyer without the
express permission of the Court. However, invariably the court grants this permission and
usually it is a lawyer which represents the parties. The most unique aspect regarding the
proceedings before the Family Court are that they are first referred to conciliation and only
when the conciliation proceedings fail to resolve the issue successfully, the matter taken up
for trial by the Court. The Conciliators are professionals who are appointed by the Court.
Once a final order is passed, the aggrieved party has an option of filing an appeal before the
High Court. Such appeal is to be heard by a bench consisting of two judges.

WHAT MAKES INDIAN FAMILY COURTS UNIQUE

Family courts are empowered to formulate their own procedures but till then they
have to follow the Civil Procedure Code.
Evidence need not be recorded.

11
Section 4 (3) (a)
12
Section 4 (3) (b)
13
Section 4 (3) (c)
14
Rule 2 of Family Courts (Other qualifications for appointment of judges) Rules, 1984.

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 Judgment can be concise with statement of the case, points for determining decision
and reasons.
Appeal to the High Court can be filed within thirty days from the date of judgment,
order or decree of the Family Court.
If the party desires, in camera proceedings can be conducted.
No party to a suit or proceeding under the Family Court shall be entitled to be
represented by a legal practitioner but the court may requisition the services of a legal
expert as amicus curiae

JURISDICTION

The Family Courts Act also covers areas of the personal laws. All family courts shall have
the power and jurisdiction exercisable by any District Court or any subordinate civil court in
suits and proceedings of the nature dealt with explanation to Section 7 (1) of the Act.

Following are the matters which can be filed in the Family Courts:-

1. Decree for nullity of marriage

2. Restitution of conjugal rights
3. Judicial separation
4. Dissolution of marriage
5. Declaration of matrimonial status of any person
6. Matrimonial property matters
7. Claim of maintenance
8. Guardianship
9. Custody of children
10. Access of children
11. Application for injunction in matrimonial matters
12. Custody of children, guardianship, legitimacy of child under the Hindu Minority and
Guardianship Act, 1956

Therefore, the family courts have the power to deal with grant of decree of divorce and
validity of marriages under various personal laws 15.

15
Rule 5 (d) of H.C. of A.P. Family Courts (Court) Rules, 2005

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In the case of Reddy Ananda Rao v. Ms. Totavani Sujatha 16, it was held by the court of law
that if any dispute to a marriage between the parties arises irrespective of their caste or creed
and validity of a marriage the family court has got jurisdiction.
If there is a property dispute between the parties to a marriage the family court can entertain
the petition17.
In Mrs. Mariamma Ninan v. K.K Ninan18, the court of law has held that the family court
entertain suit for partition of the property between the parties to a marriages.
Also, in the matter of Suprabha v. Sivaraman19, it was observed that a suit filed by the wife
for return of gold ornaments, cash e.t.c., given at the time of marriage even after the death of
the husband being one arising out of marital relationship though not between the parties to
the marriage.
The family court can also pass orders or injunctions in circumstances arising out of a marital
relationship20. The family court has got jurisdiction to declare of any person as to the
legitimacy21.

The Family Court has no jurisdiction to entertain the applications in certain circumstances.
The following cases are some examples.

1. A suit for declaration regarding the illegitimacy of the child cannot be entertained22.
2. In Ranjeet Chobra v. Savita Chobra23, it was held that a dispute relating to
appointment of Guardian of minors property has come under the jurisdiction of the
Civil Court.
3. The family court cannot entertain the suit of a minors property. 24
4. The proceedings under Muslim Women (Protection of Rights on Divorce) Act, 1986,
a Muslim woman can apply under Sections 3 and 4 of the said Act for maintenance
only to Magistrate of the First Class25.
5. The suit involving a dispute between the brothers, sisters, mothers, fathers etc.
concerning property. 26

16
AIR 2003, NOC 258 AP
17
Explanation (c) in Section 7 (1) of the Family Courts Act., 1984
18
I (1997) DMC (AP) 570
19
AIR 2006 Ker 187
20
Explanation (d) in Section 7 (1)
21
Explanation (e) in Section 7 (1)
22
Renubala Maharana vs. Mina Mohanty, AIR 2004, SC.3500.
23
1991 (2) Civil L.J. 483
24
Kamal V.M. Allauddin v. Raja Shaikh AIR 1990 Bom. 299.
25
Karim Abdul Rehaman Shaikh v. Shehnaz Karim Shaikh, 2001 (1) ALD (Crl.) 145 (Bom) (FB)

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 6. The suit for declaration that the father should provide necessary funds for his
daughters marriage. 27
7. Prior to the establishment of the family court, if there was an order already passed by
the Civil Court under Hindu Marriage Act, 1955 and any further alteration in that
regard is intended it must be made by the Civil Court itself. 28
8. The ambit and scope of the proceedings of a suit for partition and allotment of shares
was completely outside jurisdiction of Family Court 29.
9. The suit relating to joint family property in which the parties other than the spouses
are sharers cannot be taken as a suit arising out of matrimonial relationship30.

In the matter of Abdul Jaleel v. Shahida,31 the Supreme Court held that the Family Courts
Act, 1984 was enacted to provide for the establishments of family courts with a view to
promote conciliation in and secure speedy settlement of dispute relating to marriage and
family affairs and for matters connected therewith by adopting an approach radically different
from that adopted in ordinary civil proceedings.

In Shyni v. George32, where a wife can implead a close relative of her husband or even a
stranger to support her claim that the husband had handed over his property to them to avoid
recovery of such property. This fact would not have the effect of depriving the Family Court
of its jurisdiction.

The Kerala High Court held in the matter of K. A. Abdul v. T. A. Sahida 33 that the expression
parties to a marriage would include a divorced wife, and therefore, such a person can file
proceedings in a Family Court.

The Bombay High Court has observed in Leela v. Mahadeo34 that the Act does not contain
any absolute bar to the appointment of advocates to represent the parties, and wherever
necessary, the Court must freely make available the service of an advocate to the party before
it.

26
P. Srihari v. P. Sukunda, II (2001) DMC (AP) 135
27
1995 AIHC 617 (Ker)
28
P. Madhavan Nair v. K. Ravindran Unni, AIR 1993 Karn. 203.
29
Mohammed Isaq v. Meharunnisa, I (1998) DMC (Kant.) 20.
30
Manita Khurana v. Indra Khurana, AIR 2010 Del. 69.
31
AIR 2003 SC 2525 = 2003 (4) SCC 166
32
AIR 1997 Ker 231
33
AIR 1997 Ker 269
34
AIR 1991 Bom 105

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In the case of Shahnaz v. Shirin35 A civil suit cannot be filed to declare as null and void, a
decree passed by a Family Court.

As no specific procedure has been prescribed by the Act for deciding applications for custody
of minor children, the only points to be ensured in appeal are whether the procedure which
was followed by the Court conformed to the rules of natural justice and whether the
paramount consideration in the mind of the Family Court was the welfare of the child was
held in the matter of Dr. Rohit Dandekar v. Dr. Raj Kavitha.36

In Rajan v. Shobha 37, it was held that the jurisdiction of Family Courts has precedence over
matrimonial and family laws statutes in force in India.

ISSUES OF CONCERN

The Family Courts main purpose is to assist the smooth and effective disposal of cases
relating to family matters. However, like any other system there are certain issues which
become a matter of concern when it comes to the working of these courts. One such issue is
that of continuity. For example, in the family courts at Tamil Nadu, the counsellors are
changed every three months. Thus, when cases stretch for a period of time which is longer
than this, the woman or the aggrieved person has to adjust with new counsellors and their
story has to be retold several times.

A major drawback of the Family Courts Act happens to be that it doesnt explicitly empower
Courts to grant injunctions to prevent domestic violence. While there has been progress, viz
the enactment of the Protection of Women from Domestic Violence Act, 2005 which now
extends to punishing women for acts of violence as well; there are still issues of jurisdiction
to be tackled. It must be understood that the Family Courts Act has to be read in totality i.e. in
accordance with the provisions in other laws.

Since the Family Court has restrictive jurisdiction and does not have the power to decide
issues of contempt, people do not seem to take the court as seriously as they would a
magistrate or a city civil court. Further, it was laid down in the Family Courts Act that the
majority of judges should be women.

35
AIR 1955 Bom 30
36
(2004) 1 DMC 216
37
AIR 1995 Bom 246

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Another matter of confusion is that the Act, by virtue of Section 13 provides that the party
before a Family Court shall not be entitled as of right to be represented by a legal practitioner.
However, the court may, in the interest of justice, provide assistance of a legal expert as
amicus curiae. This is an example of which the objective behind the family court is defeated
due to the procedural lapses.

In many Courts it has been observed that they dont have counsellors or the counsellors are
inapt. A major problem is the counsellors keep changing frequently. The judges appointed to
the family court do not have any special expertise in dealing with family matters, nor do they
have any special expertise in settling disputes through conciliation. The appointment of
women judge in Family Court is still a dream to be achieved. The procedures established in
different High Courts have laid down different rules of procedure. This causes confusion
during the proceedings. There are still many High Courts who have not yet established
Family Courts. Though the act has provided that the proceedings should be conducted
without a legal practitioner, the system did not create any alternative system of simplified
rules. The litigants are at the mercy of court clerks and peons to advise them on the rules
followed. The Family Court suffers from lack of basic infrastructure. In maximum Family
courts there is absence of drinking water, canteen, typist; notary. This lack of basic
requirements creates hardship. The working conditions are basically unhygienic and poor.

CONCLUSION

Setting up of Family Courts in India, indeed was a life changing experience for those who
were involved in matrimonial litigation and a dynamic step towards reducing the backlog and
disposing off cases while ensuring the effective delivery of justice. The various issues which
is related to the functioning of the Family Courts is to be observe in its totality as mentioned
in those circumstances which is related to the procedural and substantive aspect of the
problems as well. There are many controversial and debatable issues such as engaging a
lawyer due to the specific provisions of the Family Courts Act. 38

In the thirty three years since the Family Courts Act was passed in India, there has been
considerable growth in the number of Family Courts in the country. The lacunae arising from
the lack of uniform rules and procedures have been illustrated at length. Even if some of the
suggestions coming from the marriage counsellors are considered for action, there is
substantial scope for improvement in the implementation and administration of the Act. The
38
http://www.legalserviceindia.com/article/l356-Family-Courts-in-India.html

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Marriage Counsellor, who was envisioned as being central to the process of administration of
the Act, has not received the attention necessary for the growth of the profession.

Here the issue is the lack of uniformity which is laid down by different states creating more
confusion. Merely passing a central legislation is not in itself a complete step for any
enactment; for implementation in its spirit, it is to be ensured that some level of uniformity is
maintained throughout the country at least in the initial stages of its coming into effect
although it is difficult to maintain this clarification in India because of its diversity. Also,
there is a demand and need to amend certain laws is also to be examined and implemented
effectively in order to ensure that these family courts should not face any hindrance in their
working while disposing the matrimonial.39 These small steps, if examined and implemented
within time, will go a long way to ensure that the Family Courts are successful, to a greater
degree, to fulfil the noble purpose for which they were created.

SUGGESTIONS

1. Legal prudence has to be simpler. Simplification could be achieved by amendment of

laws or judicial interpretation.
2. Grant of maintenance should include provision for residence for women.
3. There must be speedy settlement of disputes.
4. Judges and other court staff must be gender sensitised.
5. Family Courts can also take help of NGOs in the settlement of disputes.
6. Counsellors should be permanently appointed and should be given training.
7. Family courts should follow simple procedures which should not create hurdles to
justice.
8. There should be an informal atmosphere in the family courts and these courts should
not be like any other civil courts.
9. Qualified social workers and social activists may also be appointed as judges of the
family courts.
10. To bring uniformity in the rules of family courts all over the country a drafting
committee may be set up to draft the rules.
11. Every district should have family courts.
12. The office of probation officers must be strengthened and judges should utilise their
services.

39
http://www.blogcatalog.com/blog/voice-of-women india/e9ff5198e7da7b5e528e004799249bdf

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 13. Good practices such as facilities like children's complex etc. as existing in Mumbai
should be introduced in all family courts. Necessary infrastructure should be provided
right at the time of institution of the family courts.
14. Model rules should be prepared for the appointment of judges in family courts. Judges
can also act as a counsel at the second stage of counselling.
15. A woman should be allowed to file a case in the family court in the district or state
where she resides and not necessarily at the place where the marriage took place or
where the husband resides or where they both last resided together.

The Family Courts Act 1984 was enacted with a view to promote conciliation and secure
speedy settlement of disputes relating to family dispute. Though this was aimed at removing
the gender bias in statutory legislation, the goal is yet to be achieved. More importance
should be given to the issues.

Mechanism of the family courts must develop systems and processes, perhaps with the help
of civil society organizations, to ensure that atrocities against women are minimized in the
first place so that one can minimize its afterwards effects. It should align themselves with
women's organizations for guidance in matters related to gender issues. In the context of
family courts, action forums should be initiated and strengthened by incorporating NGOs,
representatives of elected members and the active members of the departments such as Urban
Community Development, as members. State level monitoring mechanisms could be
established to review the functioning and outcome of the cases related to women in the
family courts. Women judges and those who have expertise and experience in settling family
disputes should be appointed.

These special courts should have the authority to try cases against an accused even if the
female victim is not willing to testify or is bent upon withdrawing her case. The marriage
counsellors should not be frequently changed as it causes hardship to a woman who has to
explain her problems afresh to the new counsellors each time.

The family courts committed to simplification of procedures must omit the provisions
relating to Court Fees Act. Each additional relief should not be charged with additional court
fee.

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