Meghna Jain
Family Matters

Family Courts in India

Contents hide

1 Historical Background

2 Aims and Objectives of the Family Courts Act, 1984

2.1 1. Inquisitorial approach

2.2 2. Make the process less formal, less intimidating and more accessible

2.3 3. To ensure quick redressal of grievances

3 Jurisdiction of Family Courts

3.1 Some form a part of the jurisdiction of the family courts:

4 Powers of Family Courts

4.1 1. Creating procedures at their own discretion

4.2 2. Some rules of evidence are not applicable

4.3 3. Appeal goes directly to the High Court

4.4 Refrences

5 Related

Historical Background

The first step towards the establishment of family courts in India was taken by Smt. Durgabai Deshmukh.[1] She got the opportunity to observe the workings of family courts on her tour of China, following which she made a proposal for the incorporation of the same in India to the Prime Minister of that time, Jawaharlal Nehru.[2] However, the preliminary reason for the establishment of such courts was the sizeable pressure being exerted by multiple welfare associations and organizations for women insisting on setting up separate courts for family-related matters.[3] Furthermore, the 59^th report drafted by the Law Commission of India also placed emphasis on the establishment of such courts.[4] Based on these factors, the Family Courts Act, 1984 was enacted by the Government of India and consequently, the first family court was established in Jaipur, Rajasthan.[5]

Aims and Objectives of the Family Courts Act, 1984

1. Inquisitorial approach

Family courts moved away from the conventional adversarial mode of justice and adopted a less formal, inquisitorial system.[6] This essentially means that the parties involved in the trial are not focusing their attention on “winning” or defeating the other party.[7] But instead, they are focusing towards analyzing the situation at hand to find an amicable solution.[8] As opposed to the adversarial system, family courts are not aimed at being dilatory and confrontational. The rationale behind shifting to an adversarial system consisted of the need to promote conciliation and settlements, as opposed to hostility between parties.

2. Make the process less formal, less intimidating and more accessible

It was hoped that the establishment of family courts would also assist the disadvantaged sections of the society, i.e., women and children.[9] These courts were established “to ensure that crucial rights of survival of women are not subsumed beneath technicalities and legal jargon”.[10]

In the case of Gangadharan v. State of Kerala, it was held by the Court that Section 3 of the Family Courts Act, which provides for the establishment of family courts, should not be the sole reason for establishing family courts.[11] Instead, the State Governments should establish such courts in order to “discharge their social obligation to provide a less formal platform for resolving family disputes”.[12]

3. To ensure quick redressal of grievances

Emphasis was put on ensuring a speedy trial that would not only make the procedure and process involved with family courts less formal, but also less expensive, thereby limiting the technicalities involved with filing a suit.[13] This would consequently ensure that the courts are more approachable and hence, able to provide a greater level of justice.

Jurisdiction of Family Courts

The jurisdiction of family courts in India is encompassed under Section 7 of the Family Courts Act, 1984.[14] Section 7(1) provides that the jurisdiction of the family courts in India extend to the jurisdictions exercisable by the district courts or other subordinate courts.[15] However, this assumption that family courts are equal to district courts and can exercise jurisdictions exercisable to them extends only to the matters provided under the Family Courts Act. The following matters are listed the explanation provided under Section 7,

Some form a part of the jurisdiction of the family courts:

“(a). a suit or proceeding between the parties to a marriage for a decree of nullity, restitution of conjugal rights, judicial separation and divorce;

(b). a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c). a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d). a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e). a suit or proceeding for a declaration as to the legitimacy of any person;

(f). a suit or proceeding for maintenance; and

(g). a suit or proceeding in relation to the guardianship of the person or the custody of, or

access to, any minor.”[16]

However, the jurisdiction of family courts is not limit civil cases only. Their jurisdiction also extends to criminal cases. Chapter IX of the Code of Criminal Procedure grants jurisdiction to family courts equivalent to that exercisable by a Magistrate of First Class.[17] Subject matter included in such jurisdiction comprises of being permit to pass orders regarding the “maintenance of wife, children and parents”.[18]

Not only have the family courts been grant vast jurisdiction in terms of their subject matter, they have been grant this jurisdiction exclusively. Section 8 of the Family Courts Act excludes and bars other courts from exercising the jurisdiction conferred upon the family courts.[19]

Powers of Family Courts

1. Creating procedures at their own discretion

As mentioned above, one of the aims and objectives of the Family Courts Act and that of establishing family courts in India is to promote informality of legal proceedings revolving around family matters. In order to facilitate the objectives, the power to lay down their own rules of procedure have been conferred upon the judges of family courts.[20] Section 10 of the family courts, however, does not prescribe that the procedures elaborated upon in the Civil Procedure Code not be applicable to family courts. Instead, it merely prescribes that in case judges decide to establish their own procedures for the purposes promoting conciliation and settlements, such procedures will effectively act to override those prescribed in the Code of Civil Procedure.[21] In other words,

while family courts are not prohibit from adhering to the Code of Civil Procedure, they are also not bound by it.

2. Some rules of evidence are not applicable

The first power of family courts in terms of procuring evidence is incorporate under Section 15 of the Family Courts Act. This Section prescribes that it is mandatory for family courts to record oral evidence of witnesses at length.[22] Instead, it is consider to be sufficient or

adequate even a memorandum is create containing the matter of what the witness testifies to.[23] As was held in the case of Narayane Roy v. Jamuna Dey (Roy), “the rigor of the Evidence Act is not applicable in reception of evidence by the family court”.[24]

The second power of family courts in terms of collecting evidence is encompass under Section 14 of the Family Courts Act. Section 14 provides that “A Family Court may receive as evidence anyreport, statement, documents, information or matter that may, in its opinion, assist it to deal effectuallywith a dispute, whether or

not the same would be otherwise relevant or admissible under the IndianEvidence Act, 1872.”[25] Essentially, this Section means that as long as the judge of the family court perceives a piece of evidence as being significant in solving the dispute at hand, they can admit that piece of evidence into court even if the same would not have been permissible to be admitted under the Indian Evidence Act owing to its lack of relevancy or admissibility.[26]

3. Appeal goes directly to the High Court

An appeal against any order or decree, except interlocutory orders, passed by family courts lies with the High Court.[27] The same would be hear by a division bench of the High Court.[28] In case an appeal is to be prefer,

it must be made within the limitation period of thirty days from the date on which the judgement has been passed.[29] After the expiration of this period of limitation, no appeal shall be preferred. Additionally, if the parties to a suit had mutually