RELEVANCE OF FAMILY COURTS

“The Family Courts Act expects the duty-holders like the court, counsellors, welfare experts
and any other collaborators to make efforts for reconciliation”.
-Hon’ble Mr. Justice Kurian Joseph

In India, family is the most important institution that has survived through the ages. If there is
one cohesive, cementing force at the heart of traditional Indian society — a single, powerful
strand which for centuries, has woven the tapestry of our rich, social fabric replete with diversity,
into a whole — it is our family system. The family, in Indian society, is an institution by itself
and a typical symbol of the collectivist culture of India right from the ancient times. The joint
family system or an extended family has been an important feature of Indian culture, till a blend
of urbanization and western influence, began to affect in home and hearth. This is especially true
of urban areas, where nuclear families have become the order of the day. There is no denying the
fact that socio-economic factors have played their role in the joint family system getting diluted.
The family has been and continues to be one of the most important elements in the fabric of
Indian society. The bond that ties the individual to his family, the range of the influence and
authority that the family exercises make the family in India not merely an institutional structure
of our society, but accord give it a deep value.
Today, the Indian family is subjected to the effects of changes that have been taking place in the
economic, political, social and cultural spheres of the society. In the economic sphere, the
patterns of production, distribution and consumption have changed greatly. The process of
industrialisation and the consequent urbanisation and commercialisation have had drastic impacts
on the family. Migration to urban areas, growth of slums, change from caste oriented and
hereditary occupations to new patterns of employment offered by a technological revolution, the
cut-throat competition for economic survival and many other economic changes have left their
impact on the family. Briefly speaking, these changes in the socio-economic-political-cultural
milieu of our society have led to changes in the structures, functions, roles, relationships and
values of the family. In the context of the changes in the economic system more and more
members of the family are moving away from the larger family circle and living as individuals or
members of a nuclear unit in urban areas. The patterns or loyalties, obligations and expectations
have changed. The cases of the child and the aged in particular have become a problem for many
due to structural changes in the family.
Due to such changes, increasing family disputes have been noticed and reported. Family disputes
do not restrict themselves just to matrimonial cases but a variety of other issues such as property,
adoption, maintenance and so on. The increasing domestic tensions and violence in today’s age
is not just against women but in the women are misusing prevalent laws specifically made for
them, which is making men a victim of violence and harassment too. If not physical, then mental
cruelty and harassment are something that are increasingly being reported by men. In between
most of the disputes, children are the main sufferers.
If we go by the records, the number of cases being filed in the Supreme Court is consistently on
the rise. 34683 cases were filed in Supreme Court in the year 1999, whereas, 70350 were filed in
the year 2008, the increase being about 103% nine years. There are cases dealing with a broad
spectrum of issues such as family matters and property which continue for generations. Such
cases continue for atrocious periods of time, ranging from 7 years to 30 years. In such a scenario,
the channeling of cases to different courts set up specially for this purpose not only ensures their
speedy disposal, but also ensures that the cases, being dealt by with experts in courts specially set
up for this purpose; are dealt with more effectively. The saying that “justice delayed is justice
denied” then becomes relevant to take into consideration.
Family courts have been set up and are functioning in various states but the setting up of a family
court in the Capital is a significant development and a step which was necessary to be taken. The
main purpose behind setting up these Courts was to take the cases dealing with family matters
away from the intimidating atmosphere of regular courts and ensure that a congenial
environment is set up to deal with matters such as marriage, divorce, alimony, child custody etc.
As mentioned earlier, an effective way of tackling the problem of pendency is to improve the
efficiency of the system rather than changing the system altogether. A significant step is to make
use of the available human resource. These family courts at Delhi are equipped with counsellors
and psychologists who ensure that the disputes are handled by experts who do not forget that
while there may be core legal issues to be dealt with; there is also a human and psychological
dimension to be dealt with in these matters. The role of the counsellors is not limited to
counselling but extends to reconciliation and mutual settlement wherever deemed feasible.
The Family Courts are free to evolve their own rules of procedure, and once a Family Court 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 shackles of a formal legal system and the
regular process of adjudication causes unnecessary prolonging of the matter and the dispute can
worsen over time. This can be a very traumatic experience for the families and lead to personal
and financial losses that can have a devastating effect on human relations as well. This again
points to the importance of having guidance counsellors and psychological experts to deal with
such matters. 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.
A major drawback of the Family Courts Act happens to be that it doesn’t 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, for example, the Civil Procedure Code on matters of jurisdiction.
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. However, this provision has not been complied with. In the course of the
workshop organised in March 2002 by the National Commission for Women, it was noted that
there were only 18 women judges till then in the Family Courts in India out of 84 judges in all
the 84 courts that existed at that time.
Government is empowered to make rules prescribing some more qualifications. Apart from
prescribing the qualification of the Judges of Family Courts, the Central Government has no role
to play in the administration of this Act. Different High Courts have laid down different rules of
the procedure. However, this lack of uniformity could also be one of the reasons behind the fact
that family disputes are still being heard by civil courts. Family courts also need to align
themselves with women’s organizations and NGOs dealing with the welfare of families, women
and children. 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. The fact that the proceedings are conciliatory does not
relieve them of the complicated legal issues which may be involved in the family dispute.
The question is whether a lawyer's participation will be useful or detrimental to the performance
of a family court. That is the crucial issue. It was suggested at the workshop that the Women's
Commission should consider whether an amendment could be proposed to allow participation of
lawyers subject to a proviso giving power to the court to terminate his vakalatnama if he uses
delaying tactics by unnecessary adjournments. If such control is given to the court the lawyers
will not be able to get adjournments. Further, a lay person may be totally unaware of the legal
jargon that invariably comes into play during the proceedings. Further, the substantive aspect of
the law cannot be ignored because it is what cases are made of. A practical example of a problem
with the substantive law is that many times, the husband in a divorce cases resorts to
reconciliation mainly because he wants to escape the responsibility of giving maintenance to his
wife.
In Abdul Jaleel v. Shahida, 25 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 Gurubachan Kaur vs. Preetam Singh, 85 the Division Bench of Allahabad High Court held
that “a duty has been imposed under Sec.9 of the Family Courts Act to make all possible
endeavour which is at para material with Order XXXIII 86 of CPC. The Court must express its
concern that the Family Courts should work in a spirit of dedication to settle the matter by
negotiation and all possible methods of persuasion so that the marriage may be preserved. The
Court expresses its concern that it should not turn into an ordinary Civil Court as seen by while
sitting in this jurisdiction and dispose of the matter as expeditiously as possible and
adjournments should be restricted.
In the era of gender justice and gender neutrality, men should be on the equal footing as women
and unnecessarily no law should be used against them. Apart from these stricter punishments
should be given to the parties which file false complaint against the other or false case. All those
who make up false stories in the name of cruelty should be charged hefty amount of cost.