INTRODUCTION TO FAMILY COURTS IN INDIA

A family court is a court convened to decide matters and make orders in relation to family law,

such as custody of children. In common-law jurisdictions "family courts" are statutory creations

primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a

superior court. The Family courts were first established in the United states in 1910, when they

were called domestic relations courts although the idea itself is much older.1

It is not unknown that a gaping loophole in the Indian Judiciary is the backlog

of cases. 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. In the year 2014, 3 crore judicial backlog was recorded.2

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.

The need to establish the Family Courts was first emphasized by late Smt

Durga Bai Deshmukh after her visit to China in the year 1953, where she had

the opportunity to study the working of Family Courts. She discussed the

subject with Hon’ble Mr Justice M.C. Chagla of Bombay High Court and also

Hon’ble Mr Justice P.B. Gajendragadkar, then the Judge, Bombay High Court.

She also discussed the matter of setting up of the Family Courts with the

then Prime Minister Pandit Jawahar Lal Nehru. Several women associations,

1 www.family.laws.com/cases-tried-and-role-of-court/types-of-cases-tried-and-role-of-court "Types of Cases Tried and Role of

Court" accessed on 24th April, 2015.

2http://www.deccanchronicle.com/141207/nation-current-affairs/article/judicial-backlog-country-billions-3-crore-court-cases- pending “judicial backlog: in a country of millions, 3 crore cases pending” accessed on 24th April, 2015.

welfare organizations and individuals also mounted pressure for setting-up of

the Family Courts to provide a forum for speedy settlement of family relates

disputes. Clubbed with the mounting pressures from several women's

associations, welfare organisations and individuals there was a need for the

establishment of special courts with a view to providing a forum for speedy

settlement of family-related disputes. The emphasis was on a non-

adversarial method of resolving family disputes and promoting conciliation

and securing speedy settlement of dispute relating to marriage and family

affairs.

In 1975, the Committee on the Status of Women recommended that all

matters concerning the .family' should be dealt with separately.3 The Law

Commission in its 59th report (1974) had also stressed that in dealing with

disputes concerning the family, the court ought to adopt and approach

radical steps distinguished from the existing ordinary civil proceedings and

that these courts should make reasonable efforts at settlement before the

commencement of the trial. Gender-sensitized personnel including judges,

social workers and other trained staff should hear and resolve all the family-

related issues through elimination of rigid rules of procedure. The Code of

Civil Procedure was amended to provide for a special procedure to be

adopted in suits or proceedings relating to matters concerning the family.

However the courts continue to deal with family disputes in the same

manner as other civil matters and the same adversary approach prevails.

Hence a great need was felt, in the public interest, to establish family courts

for speedy settlement of family disputes.

The Family Courts Act which was passed in 1984 was part of the trend of

legal reforms concerning women. The President gave his assent to the

Family Courts Act on September 14, 1984. The Act provides for a

commencement provision which enables the Central Government to bring

3 India, and Phulrenu Guha. 1975. Towards equality: report of the Committee on the Status of Women in India. New Delhi: Govt. of India, Ministry of Education & Social Welfare, Dept. of Social Welfare.

the Act into force in a State by a notification in the Official Gazette, and

different dates may be appointed for different States. This Act has 6 chapters

under various heads such as Preliminary, Family Courts, Jurisdiction,

Procedure, Appeals and Revisions and Miscellaneous.

The Act empowers the State governments after consultation with the High

Court, to establish, for every area in the State comprising a city or town,

whose population exceeds one million, a family court. The criteria for

appointment of a Family Court Judge are the same as those for appointment

of a District Judge requiring seven years experience in judicial office or seven

years practice as an advocate. The Central 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. A need for a uniform set of rules has

however been felt.

The Act also provides that persons who are appointed to the family courts

should be committed to the need to protect and preserve the institution of

marriage and to promote the settlement of disputes by conciliation and

counseling. Preference would also be given for appointment of women as

Family Court Judges. The State Government can associate institutions

engaged in promoting welfare of families, especially women and children, or

working in the field of social welfare, to associate themselves with the Family

Courts in the exercise of its functions.4 The State Governments are also

required to determine the number and categories of counsellors, officers etc.

to assist the Family Courts.

The scheme of the act confers on all the family courts the power and

jurisdiction exercisable by any District Court or subordinate civil court in suits

and proceedings of the nature referred to in the explanation to section 7(1)

4 Section 5, family court act, 1984

of the Act.5 These, inter-alia relate to suits between parties to a marriage or

for a declaration as to the validity of marriage or a dispute with respect to

the property of the parties, maintenance, guardianship etc. In addition, the

jurisdiction exercisable by a First Class Magistrate under Chapter IX of the

Cr.P.C. i.e. relating to order for maintenance of wife, children or parents, has

also been conferred on the family courts. There is also an enabling provision

that the family courts may exercise such other jurisdiction as may be

conferred on them by any other enactment. Provision has also been made to

exclude jurisdiction of other courts in respect of matters for which the family

court has been conferred jurisdiction.

Chapter IV of the Act deals with the procedure of the family court in deciding

cases before it has been made incumbent on these courts to see that the

parties are assisted and persuaded to come to a settlement, and for this

purpose they have been authorized to follow the procedure specified by the

High Court by means of rules to be made by it. If there is a possibility of

settlement between the parties and there is some delay in arriving at such a

settlement, the family court is empowered to adjourn the proceedings until

the settlement is reached. Under these provisions, different High Courts have

specified different rules of procedure for the determination and settlement of

disputes by the family courts. In the rules made by the Madhya Pradesh High

Court, the family court judge is also involved in the settlement, and if a

settlement cannot be reached then a regular trial follows. It is also provided

that the proceedings may be held in camera if the family court or if either

party so desires. The family court has also been given the power to obtain

assistance of legal and welfare experts. 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. Evidence may be given by

affidavit also and it is open to the family court to summon and examine any

5 Section 7, family court act, 1984

person as to the facts contained in the affidavit. The judgement of the family

court iin concise and simple containing the point for determination decision

and the reason for the same. The decree of the Family Court can be

executed in accordance with the provisions of the CPC or Cr.P.C., as the case

may be. An appeal against judgement or order of family court lies to the High

Court. Family courts are subordinate to the High Court, which has power to

transfer the case from one family court to the other.6

The Act gives power to each of the High Courts to make rules for the

procedure to be followed by the family courts in arriving at settlements and

other matters. The Central Government has been given the power to make

rules prescribing additional qualifications for appointment of a Judge of the

family court. The State Government has also been empowered to make rules

providing for, inter alia, the salaries of family court judges, terms and

conditions of service of counsellors and other procedural matters.

The Act was expected to facilitate satisfactory resolution of disputes

concerning the family through a forum, and this forum was expected to work

expeditiously, in a just manner and with an approach ensuring maximum

welfare of society and dignity of women.

The Act however does not define ‘family'. Matters of serious economic

consequences, which affect the family, like testamentary matters are not

within the purview of the family courts. Only matters concerning women and

children - divorce, maintenance, adoption etc. - are within the purview of the

family courts.

The Act also brought civil and criminal jurisdiction under one roof. This was

seen as a positive measure to centralize all litigation concerning women.

Secondly, the very nature of criminal courts facilitated quicker disposal of

applications to a civil court. Thirdly, there was seriousness and a sense of

intimidation associated with a criminal court, which would act in a woman's

6 Agrawal, K.B. (2010). Family Law in India. Great Britain: Wolters Kluwer. p. 66. ISBN 978-90-411-3292-5.

favour. Also the Act brought under one roof, matters which were handled by

forty odd magistrates and at least two courts in the city civil court, into five

court rooms in the city of Mumbai.

While the Act laid down the broad guidelines it was left to the State

Government to frame the rules of procedure. However, most state

governments did not bother to frame the rules and set up family courts.

Rajasthan and Karnataka were the first two states to set up family courts.

But soon women litigants as well as activists were disillusioned with the

functioning of the courts. The overall situation is the same everywhere, with

minor differences. In Tamil Nadu, the marriage counsellors keep changing

every 3 months and each time the woman meets a new counsellor she has

to explain her problems all over again, with no continuity in the discussion. 7

The Family Courts Rules in Maharashtra were framed in 1987. They deal

elaborately with the function and role of marriage counsellors in family

courts. In fact 27 out of 37 sections deal with this aspect. Wide powers have

been given to the marriage counsellors e.g. to make home visits, to ascertain

the standard of living of the spouses and the relationship with children, seek

information from the employer, etc. While in a rare and sensitive marriage

counselor makes use of this power in the interest of women, more often

these powers are used against the women in the interest of the family since

it is imbibed into the minds of such counselors that their primary

commitment is to preserve the institution of marriage. Further, the reports

prepared by marriage counselors based on their investigation, are not

binding on the judges. The report of the marriage counselor is kept

confidential, and not made a subject of cross-examination.

After the preliminary meeting with the marriage counselor, the case would

proceed as per the rules of the Code of Civil Procedure. The rules do not

7“Report on working of family courts in India and model family courts” 20th march 2002, national commision for woman.

simplify procedures but merely reproduce the Code of Civil Procedure with

the minor addition that parties should be present in person.

OBJECTIVES AND FUNCTIONING OF FAMILY COURTS

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. The formation of family

court was a mile stone in the history of Indian judiciary. The Family Courts Act 1984 established

the creation of Family Courts through a Gazette notification by the Central Government. These

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 to establish it. One or more judges constitute the

Family Courts but each judge is competent to exercise all the powers of the court.

The Family Courts Act also covers areas of the following Acts:

i. Hindu Marriage Act, 1955

ii. Special Marriage Act, 1954

iii. Hindu Adoption and Maintenance Act, 1956

iv. Parsi Marriage and Divorce Act, 1936

v. Indian Divorce Act, 1869

vi. Christian Marriage Act, 1972

vii. Dissolution of Muslim Marriage Act, 1939

viii. Hindu Minority and Guardianship Act, 1956

ix. Criminal Procedure Code, 1973, Sec 125, 126, 127 and 128

x. Guardians and Wards Act, 1890

Objectives

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.”8

Functions

The Family Courts are free to evolve their own rules of procedure, and once a Family Court does

so, the rules so framed over ride 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.9

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.

Legal Jurisdiction of Family Law Courts

In countries where the family court system exists there is still a controversy as to what mtters

should come within the jurisdiction of the Court. There is an agreement that all family law

matters, such as marriage, matrimonial causes, maintenance and alimony, custody, education and

8 Family court act, 19849 “the objectives of family court in india” accesed on http://indialawyers.wordpress.com/tag/family-court/ at 25th april, 2015.

support of children, settlement of spousal property and guardianship and custody of child’s

person and property should come within the jurisdiction of the court. But there is disagree as to

para-familial matters, such inter-spousal assaults, familial assaults, inter-familial torts and

contract. Parliament has favoured the former view. The legal jurisdiction of Family Courts

extends to all matters that pertain to matrimonial issues, maintenance, alimony and custody of

children in a marital dispute or a divorce. Further, Family Courts deal with the following:

Suits or proceedings between parties to a marriage for a decree of restitution of conjugal

rights, judicial separation, nullity of marriage or divorce.

Maintenance related issues.

For an order of injunction in certain circumstances arising in a matrimonial relationship.

For declaring legitimacy of any person.

Suits or proceedings between parties regarding dispute about the property.

Guardianship or custody of any minor or child.

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.

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.

Association of social welfare societies to aid ans assist the workings of the family court

It is now accepted in most countries as well as India that matrimonial proceedings should be in

Camera and the confidentiality of the court record should be maintained. Section 11 of the act

makes it obligatory on the part of the court to hold the proceedings in camera if any party so

wishes. In a given case, they may be held in camera if the family court so desires. One should not

confuse confidentiality of the proceedings with secrecy. In any democratic system, the public is

entitled to know the way justice is administered. No court should operate in secrecy.

Constructive criticism, research and proposals for reform can only come from the knowledge of

the ways and procedures by which the courts operate. And this is precisely what Section 11 lays

down.

In some countries, there is a strong opinion for the exclusion of the lawyer’s service from the

family court and ‘do-it-yourself’ divorce is being propagated. In undefended cases and in cases

where parties are in a mood to settle issues, the services of a qualified lawyer will hardly be

needed. But in complicated and hotly contested cases, dispensation of lawyer’s service will

undermine the rights of the parties and may harm them. Most of the people are so upset in a

crisis, particularly in marriage-crisis, as to not be able to file any papers methodically, even to

think clearly and would gratefully employ the lawyer to relieve themselves of another burden.

Section 13 of the Act favours dispensation of the service of the lawyer, though the family court

may seek the assistance of a legal expert as amicus curiae whenever it considers to do so is

necessary in the interest of justice. The Bombay High Court has expressed the view that the

section does not bar the presence of the advocate and wherever necessary, the court should freely

make available the presence of the advocate.10

In Kailash Bhansali, v. Surender Kumar11, husband filed an application to be represented by legal

practitioner and the wife was claiming harassment on the part of the husband. Order appointing

legal practitioner for both was passed which was held by the High Court to be improper.

Association of social welfare agencies

These societies help in proper functioning of the family court and guarantees effective execution

and reaching an amicable settlement. The state government along with the High Court makes

rules for such associations. Institutions engaged in social welfare or persons professionally

engaged in social welfare projects and such persons whose association with the family court

10 Leela v. Mahadeo, 1991 Bom. 10511 2000 Raj. 390.

facilitates exercise of jurisdiction in a more effective manner are selected for assisting the family

court12

Appointment and qualification of judges of the family court13

The state government is empowered to appoint judges with of the family court in concurrence

with the suggestions of the High Court of Judicature. The state government has the discretion to

appoint “principal judge” and “additional principal judge”. The principal judge may from time to

time distribute the workload between different judges. In the absence of the principal judge, the

additional principal judge may assume the powers and functions of the principal judge, for the

period of such absence.

The necessary qualification required to be appointed as a judge of the family court:-

Has at least 7 years experience as a judicial officer in India or the office of a member of

tribunal or any other post under the union or state requiring special knowledge of law.

Has at least served for a period 7 years as an advocate in the High Court or two or more

of such courts in succession.

Posses other such qualification prescribed by the central government in concurrence with

the Chief Justice of India.

In appointing the judges every effort must be made to appoint such persons who are committed

to need of preserving the institution of marriage and promote the welfare of the children. They

must be qualified by reason of their experience and must have the adept skill and expertise to

resolve disputes by the way of conciliation. To make the woman who is a party to the dispute

comfortable and fearless, preference must be given to a woman in appointment of judges of the

court. There is a limitation as to the age of the judge’s as well. No judge who has acquired the

age of 62 years shall be appointed. The salary honorarium and the terms, tenure and conditions

of service of the judges shall be prescribed by the state government in consultation with the High

Court.

Counsellors, officers and other employees of Family Courts

12 Section 5, family court act, 198413 section 4 , family court act, 1984

The State Government in consultation with the High Court has the duty to determine the number

and categories of counsellors, officers and other employees in a family court system. These

employees assist a Family Court in the discharge of its functions. The terms and conditions of

association and service of such counsellor officer and employees shall be specified by the rules

made by the State Government.14

Decree of Family Court – Civil Court’s Jurisdiction

A Civil suit to declare the decree of Family Court as null and void is not maintainable. 15 Family

Court’s jurisdiction will have precedence over our matrimonial and family law statutes.16

Custody of a minor child in a dispute:

No specific procedure has been prescribed by the statute to be followed by Family Court

deciding application for custody of minor child. The only thing to be considered by Court is

whether the procedure adopted by Family Court was natural justice. Paramount consideration

was welfare of the child.17

It is evident that the setting up of these family courts was a dynamic step so far as reducing the

backlog and disposing of cases while ensuring that there is an effective delivery of justice goes.

However, as aforementioned, there are still matters of concern which plague these courts. The

issues relating to the functioning of these courts is to be seen in total, as quoted in the examples

relating to the procedural as well as substantive aspects of the problems. There are many

controversial and debatable issues such as engaging a lawyer due to the specific provisions of the

Family Courts Act.

Furthermore, the lack of uniformity regarding the rules laid down by different states also leads to

confusion in the proper application of the Act. Though the Act was aimed at removing the

gender bias in statutory legislation, the goal is yet to be achieved. The frequent changing of

marriage counsellors is causing hardship to women who have to explain her problems afresh to

the new counsellors each time.18Merely passing a central legislation is not in itself a complete

step; for implementation in its spirit, it is to be ensured that some level of uniformity is 14 Section 6, Family Court Act, 1984.15 Shahnaz v. Shirim, 1995 Bom. 3016 Rajan v. Shobha, 1995 Bom. 24617 Dr. Rohit Dandekar v. Dr. Raj Kavitha, (2004) 1 DMC 216 (Kant.)(DB)

maintained, at least in the initial stages of its coming into effect. Further, the need to amend

certain laws is also to be examined and implemented effectively in order to ensure that these

courts do not face any hindrance in their working. 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 fulfill the noble purpose for which they were created.

18 D Nagasaila (1992): Family Courts: A Critique, Economic and Political Weekly, Vol. 27, No. 33, Aug. 15, 1992

PROCEDURES UNDER THE FAMILY COURT ACT

Family courts hear all cases that relate to familial and domestic relationships although each state

has a different system utilized to address family law cases, each state strives to provide families

with the best possible outcome in family law cases. They can also issue decisions regarding

divorce cases.19

The jurisdiction of the family court is the same as the jurisdiction exercisable by any district

court or any sub-ordinate civil court. Furthermore, the court is also empowered to exercise the

jurisdiction exercisable by a magistrate of the 1st class as per chapter IX of the C.P.C. Or the

jurisdiction conferred upon by any other enactments.20

The act also provides that when a family court has been established under the provisions of this

act then, no district court or subordinate civil court in the area of such establishment shall have

the jurisdiction to try cases whose nature is such, that it is to be tried by the family court.

Similarly No magistrate shall in relation to such an area, have or exercise any jurisdiction under

chapter IX of the C.P.C. Thus, one might note that a family court has exclusive jurisdiction in

matters referred to it21. The same applies to matters in lis pendens. Where any matter is pending

immediately before the establishment of the family court or when a matter is to be required to be

instituted before a family court, before the institute of such a suit the act came into force; then in

both these circumstances the pending matter shall be transferred to the family court.

Chapter IV of the act talks about the procedures adopted by the family court. It is the duty of the

family court to make sincere efforts to resolve the disputes between the parties. 22 Such

endeavours for settlement shall be made at the first instance according to the nature and

circumstances of the case. The court has a bona fide duty to assist and persuade the parties in

arriving at an amicable settlement and the family court for this purpose can follow any procedure

it deems fit, subject to the rules made by the High Court. The court at any stage, may adjourn the

19 M. Luschinsky, “The Impact of Some Recent Indian Government Legislation on the Women of an Indian Village”, The Asian Survey 573-83 (1963).

20 section 7, Family Court Act.21 section 8, Family Court Act.22 section 9, Family Court Act.

proceedings if it thinks that there is a "reasonable possibility” of arriving at an amicable

settlement and enable efforts to facilitate the same.

The general procedure23 of the family court is subject to the other provisions and rules of the act,

rules of the Civil Procedure Code, 1908 and any other law for the time being in force. The

exception to this rule is the proceedings for maintenance of wife children and parents under

chapter IX of the Civil Procedure Code and for the purpose of such provisions of the code, the

family court shall be deemed to be a civil court and possess all its powers. Thus the procedures

of the Civil Procedure Code shall apply to the family court yet it can formulate its own procedure

with the aim of arriving at an amicable settlement.

In solving matrimonial disputes there should not be any humiliation to the parties and therefore

provisions to ensure confidentiality are necessary. The provisions of the act empower the court

proceedings to be held in presence of a camera, when the parties so desire or when the court

deems fit.24

The act further excludes the involvement of lawyers in the proceedings. To preserve the

informality of procedures, it was specifically laid down that the parties to a dispute were not

entitled, as a matter of right, to be represented by legal practitioners.25 Section 13 is worded as -

"Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family

Court shall be entitled, as of right, to be represented by a legal practitioner." However, if the

Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal

expert as amicus curiae.

In the case of Sadhana Patra vs Subrat Pradhan,26 the constitutional validity of section 13 of the

Family Court Act and section 36(4) of the Industrial Dispute Act where there is a bar on

appointing a lawyer. It was held that- "While main Section 13 deals with appointment of legal

practitioners by the parties, proviso deals with the power of the Family Court to appoint a legal

practitioner as amicus curiae. Both should not be mixed up and confused. It only connotes that

while the party cannot claim to appoint legal practitioners to plead his/her cause as of right, an

23 section 10, Family Court Act.24 section 11, Family Court Act.25 Jamwal, N., “Have Family Courts lived up to expectations”, Mainstream, Vol XLVII No 12, March 7, 200926 AIR 2006 Ori 105.

exception is carved out in proviso vesting the jurisdiction in the Family Court to seek the

assistance of a legal practitioner by appointing any advocate as amicus curiae to assist the Court.

But that does not mean to say that parties are not at all entitled to appoint legal practitioners to

plead their causes before the Family Court and that such legal practitioner can appear only when

the Family Court appoints as amicus curiae. Section 13 and its proviso do not spell out any such

meaning. Truly understood, Section 13 does not create a total embargo on the parties before the

Family Court to engage advocates. Even under the Industrial Disputes Act and the Rules made

there under, the legal practitioner cannot be appointed to plead for the parties unless permission

to that effect is granted by the Court, be it Labour Court or Industrial Tribunal. The kind of

disputes tried by the Courts/Tribunals under the Industrial Disputes Act is entirely different than

that of the disputes before the Family Court. Further, even before Labour Courts and Industrial

Tribunals' lawyers are permitted. If the workman appoints them, then the management also is

permitted. This is based on equality clause as workmen and management are unequals and on the

ground that mighty management should not defeat the cause of a tiny workman because of the

financial disability of the latter. It is in that context, there is a regulation with regard to grant of

permission or otherwise of appearance of a legal practitioner, before Industrial Tribunals and

Labour Courts."27 The court reasoned and upheld the constitutional validity of section 13.

The powers of the Family Court was greatly broadened by allowing and empowering it to

receive as evidence,28 any report, statement, document, information or other matter that may

assist it effectually in resolving a dispute, irrespective of the fact that the same would otherwise

be relevant or admissible under the Indian Evidence Act, 1872. It shall not be obligatory on the

part of the court to record the evidence of the witness at length. It is sufficient for the judge to

record himself or direct it to be recorded as a memorandum of the substance of what the witness

have deposed. Such a memorandum must be signed by both the judge and the witnesses. Once all

the formalities regarding the memorandum are complied with, it acquires the status of record of

the case. 29

27 ibid 28 section 14, Family Court Act.29 section 15, Family Court Act.

The evidence of a formal character must be recorded by way of an affidavit. On an application

made to the court by either of the parties, it may if it so deems fit, examine such person as to the

facts contained in the affidavit.30

The family court deals with a wide variety of cases in which welfare of wives, children etc are of

paramount importance and hence counselling sessions are necessary for the parties for peaceful

settlement of disputes. The act also provides for support or auxiliary services, without which the

success of the family court system shall be highly doubtful. The act provides for association with

the court proceedings of institutions or organisations involved in social welfare activities31 or

experts in family law matters. It also provides for appointment of counsellors, officers and other

employees who facilitate the efficient functioning of the family court system. The counsellors

shall be entitled to interview relatives, friends, acquaintances of the parties as well as the minor

child in certain cases. The family court also secures the services of a medical expert or such other

people who are specialists in promoting family welfare. They also assist in discharging the

functions of the court.

The judgement of the family court shall contain a concise statement of the case and the point of

determination of the judgement. The decision must be a reasoned order. The decree or order of

the family court may be executed by the court itself or any other family court or by an ordinary

civil court in accordance with the convenience of the party concerned. 32

An appeal against the judgement of the family court shall be preferred within a period of 30 days

from the date of the judgement.33 The family court act has an overriding effect on other laws time

being in force and instruments having effect due to any other law.34

Over and above this, there are still several States, which have either not set up family courts, or if

they have, they have not bothered to frame the rules of procedure. In order to give effect to the

paradigm shift from adversarial model to a conciliatory (or even inquisitorial) model envisaged

under the Act, the description of the subject as A versus B, which indicates hostility, should

30 section 16, Family Court Act.31 section 5, Family Court Act.32 section 17, Family Court Act.33 section 19, Family Court Act.34 section 20, Family Court Act.

rather be addressed as in the matter of A and B. Once the matter reaches the trial/contest stage,

the same adversarial approach, unfortunately, gets to the fore.

An example where the objective of the Family Court is diminished due to procedural inertia or

lapses may be cited. Rules formulated are yet to provide a specific format for the interim

applications, summons etc. Many lawyers still use the format which is provided in the Civil

Procedure Code which uses words like ‘Counsel can be heard by’; ‘Counsel for the Petitioner’,

although the lawyers were earlier not allowed representing clients.35

The Rules provide for tape recorders for recording evidence at trial proceedings, which could be

used at the appeal stage, but this proposal seems too far-fetched for the family courts, which do

not even have adequate provisions for paper and stationery to begin with. Unless these lacunae

are removed the family courts cannot render an effective aid to women’s fight for justice.

Though the Act and Rules, till some time ago, excluded representation by lawyers, the system

did not create any alternative system of simplified rules. Merely stating that the proceedings are

conciliatory and not adversarial does not actually make them so. It is contended that the

worsening of situation arose because of the absence of lawyers (who, of course, have now been

permitted), which left the litigants at the mercy of court clerks and peons to help them follow the

complicated Rules. It may be true that women, in general, may not even understand the

consequences of the advice or suggestions given by court officials. For instance, when a woman

files for divorce and maintenance, the husband turns around and presses for reconciliation only

to avoid paying maintenance. From women’s viewpoint it is crucial that people who mediate are

aware of these tactics. If a judge or a counsellor feels that a woman should go back to the

husband simply because the latter was making the offer and it was the wife’s duty to obey him, it

must be realised that that there is every possibility that it could be detrimental to the woman’s

interest. Though it could be argued that the exploitation of innocent women on this count would

be prevented by allowing the legal practitioners in the FCs (as they are familiar with the Rules

and Procedures and can render necessary assistance to their clients), it must, however, be stated

that it is not an unmixed blessing. The practice of allowing the legal practitioners in family

35 Flavia Agnes, “Family Law –: Family Laws and Constitutional Claims” New Delhi, Oxford University Press, Vol. I, 2011

disputes militate against the very spirit (informality, non-adversarial approach and non-

precipitation of relationship punctuated by marital discord during legal proceedings) embodied in

the FCA. The provision of appointment of a legal practitioner as amicus curiae, where felt

necessary by court, already existed. It is apparent that the judiciary has succumbed to the

pressure tactics of the lawyer community. The remedy lied not in bringing the lawyers to the

FCs, but in the simplification of rules and procedures and creation of requisite infrastructure in

the FCs under which necessary assistance is provided to the litigants.

The FCs generally suffers from unsatisfactory conditions. There is no proper place for the judges

to be seated and working conditions, by and large, are unhygienic and poor. There is no proper

space allotted for the children to meet their separated parents.

The FCs was launched almost overnight, without proper and adequate planning and preparation.

The lack of infrastructure and basic facilities make the fight for justice a Herculean task. While

both men and women are affected, in any given situation women, who generally lack exposure to

and experience in dealing with public institutions, are the worst sufferers. Infrastructure has

another angle: the infrastructure that is necessary for a FC should be studied at the time of

establishing it; otherwise it adds to the backlog of cases.

This shows that the family courts still have a long way to go before they finally manage to

achieve their goals. There are still a lot many drawbacks to the Family Courts Acts, which need

to be overcome to fulfill the objectives with which the idea and concept of family court was

brought.

ADVANTAGES OF ADR IN FAMILY MATTERS

Litigation does not always lead to a satisfactory result. It is expensive in terms of time and

money.36Its adversarial nature does not change the mindset of the parties and ends up in

bitterness. Alternative dispute resolution systems are not only cost and time effective; they

preserve the relationship between the parties by encouraging communication and collaboration.

Maintenance of peace and harmony is the paramount consideration in resolving the family

disputes. Conciliation and mediation are old institutions and indeed they are deeply rooted in

social tradition of many societies, particularly in Asian culture and values.

In India, family disputes were resolved by the elders of the family who acted as conciliators or

mediators. Even today, elders of the family and in villages, the elder persons of the village have

such a role. Panchayats also perform a similar function, and are preferred by villagers over courts

due to their easy accessibility and prompt dispute resolution.37 The philosophy behind ADR is

amicable dispute resolution and mediation is one such process that provides a space to the parties

to sit down and focus on what they really want, rather than think what they need to seek or what

the law will let them fight for.38Mediation is defined in Black’s Law Dictionary as “a private,

informal dispute resolution process in which a neutral third party, the mediator, helps disputing

parties to reach an agreement.”39

Family dispute mediation is a process in which a mediator, an impartial third party, facilitates the

resolution of family disputes by promoting the participants’ voluntary agreement. The family

mediator assists communication, encourages understanding, and focuses the participants on their

individual and common interests. The family mediator works with the participants to explore

options, make decisions, and reach their own agreements. Thus the family mediator assists the

participants to gain a better understanding of their own needs and interests and of the needs and

interests of others. References to mediation/conciliation in family dispute resolution can be

36 Vini Singh “compulsory mediation in family disputes” the Indian Arbitrator: View Point, volume II, issue IX, September 200937Sharma, Dr. M.K., J., “Conciliation and Mediation”, available at http://delhimediationcentre.gov.in/articles.htm.accessed on 25th April, 2015.

38Sridhar M., Alternative Dispute Resolution: Negotiation and Mediation, p. 285, LexisNexis Butterworths (2006).

39Garner, Bryan A. Ed., Black’s Law Dictionary, Seventh Edition (1999), West Group, St. Paul

found in the Family Courts Act, 1984, Civil Procedure Code, Hindu Marriage Act and the Legal

Services Authorities Act, 1987 that recognises and gives a special status to Lok Adalats that have

been very effective in mediating family disputes.

The Family Courts Act was enacted with a view to promote conciliation in, and secure speedy

settlement of, disputes relating to marriage and family affairs and for matters connected

therewith. Conciliation, speedy settlement, non-adversarial approach, multi-disciplinary strategy

to deal with family disputes, informal and simple rules of procedures and gender justice are

supposed to be the cornerstones of the philosophy of the Family Courts. The whole structure of

family courts rests on the twin pillars of counselling and conciliation. The counsellors are

required to not only provide counselling but to bring about reconciliation and mutual settlement

whenever feasible.40

Section 9 (1) of the Family Courts Act states that “In every suit or proceeding, endeavour shall

be made by Family Court in the first instance, where it is possible to do so consistent with the

nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement

in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court

may, subject to any rules made by the High Court, follow such procedure as it may deem fit.”

While Section 9(2) directs the family court to adjourn the proceedings if it appears that there is a

reasonable possibility of settlement between the parties for such period as it thinks fit is

necessary for taking the required measures for bringing about the settlement. These provisions

however do not make mediation/conciliation compulsory. Section 23 (2) of the Hindu Marriage

Act, 1955 which contains similar provisions provides that before proceeding to grant any relief

under this Act, it shall be the duty of the court in the first instance, in every case where it is

possible so to do consistently with the nature and circumstances of the case, to make every

endeavour to bring about a reconciliation between the parties provided that nothing contained in

this subsection shall apply to any proceeding wherein relief is sought on any of the grounds for

divorce under section 13. It also states that, for the purpose of aiding the court in bringing about

such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper

so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the

matter to any person named by the parties in this behalf or to any person nominated by the court

40 ibid

if the parties fail to name any person, with directions to report to the court as to whether

reconciliation can be and has been, effected and the court shall in disposing of the proceeding

have due regard to the report. Here again, there is no compulsion to go for mediation before

taking recourse to litigation. Similarly Section 89 of the Civil Procedure Code (Amendment)

Act, 1999, directs the courts to identify cases where an amicable settlement is possible, formulate

the terms of such a settlement and invite the observations thereon of the parties to the dispute.

Where the Court comes to the conclusion that mediation is the appropriate mode of settlement, it

may itself act as a mediator and “shall affect a compromise between the parties”. 41The language

of this section is mandatory in nature and it makes mediation compulsory.

Mediation/Conciliation is a very effective method of family dispute resolution. It is more

attractive than litigation because it empowers the parties to devise an agreement which meets

their specific needs. 42 It empowers the parties to choose alternative options which a court may

not offer as a remedy, for example separated couples arguing over custody of their children can

formulate their own unique parenting plans. The emphasis in mediation is to find out a workable

solution unlike adversarial system which focuses on who is right and who is wrong and generally

ends up in bitterness, thereby diversifying the capacity for resolving conflicts in society.

Mediation requires co-operation between the parties which eventually helps reduce hostility

between the parties43 and results in stable agreements that are likely to inspire long term

compliance by the parties because of their consent in the outcome44

The purpose of mediation is to preserve relationships and the focus is on future and future

relationships rather than on acts of the past.Such features of mediation make it ideal for disputes

involving child/teenage behaviour and for child custody disputes.Another advantage offered by

mediation is that it helps one party to understand the view of the other. So even if the parties do

not reach a settlement and go for an adversarial process, they can get their disputes resolved

speedily. Thus mediation is a win-win situation. Further, mediation/conciliation proceedings are

41 section 89, Code of Civil Procedure, 1908

42 59th report, Law Commission India43 Family Mediation in Europe: Recommendation No. R.(98)”, 37 Fam. & Conciliation Courts Rev. 257, available at Westlaw

44Chodosh, H.E., “Mediating Mediation in India”, available at http://lawcommissionofindia.nic.in/adr_conf/chodosh4.pdf. accesed on 25th April, 2015.

confidential and the confidentiality also extends to the settlement agreement except where

disclosure is necessary for purposes of implementation and enforcement.Unlike arbitration and

court trials, mediation is not a determination but a facilitated negotiation.45

Parties to mediation are free to evaluate the law and the facts and to walk away when neither of

them likes the deal that is offered. Family disputes are personal in nature and require such

choices which mediation can very well provide. The whole process of mediation is party

controlled and offers flexibility.46Mediation costs less both emotionally and economically which

makes it more satisfactory than other dispute resolution mechanisms. It tackles conflict and

emotional stress as opposed to the impersonal and uncaring way in which formal litigation

system handles these disputes.47Formal legal systems often intimidate illiterate people, mediation

can help such people make a informed decision in a comfortable environment.

Time to make mediation in family disputes mandatory

The development of mediation in resolution of family disputes in India holds enormous promise,

and will definitely strengthen the system’s capacity to deliver justice.

The Indian family is considered strong, stable, close, resilient and enduring. Mediation can help

preserve this character of Indian family and reform and complement the formal dispute

resolution mechanisms. Making mediation mandatory for resolution of family disputes will

provide a tangible manifestation of the court’s commitment to a settlement seeking approach.

Also, it will reduce the backlog of cases while providing the parties a healthy alternative. The

Family Courts Act must be amended suitably and a compulsory mediation clause must be

inserted. To maintain the voluntary nature of mediation, a provision may be made which requires

the parties to record acceptable reasons before the court for not opting for mediation.

The Hindu Marriage Act may also be amended and mediation can be made mandatory except

for the exceptions provided under Section 23(2). To make the process of mediation fruitful,

provisions may be made regarding standards to be followed during mediation proceedings. For

45 Rao, P.C.;Sheffield, W., Alternative Dispute Resolution: What it is and How it works, Universal Law Publishing Co. Pvt.Ltd., p. 21046 ibid47 Tondo, C; Coronel, R; Drucker, B, “Mediation Trends”, 39 Fam. Ct. Rev. 431, available at Westlaw.

this purpose a reference to Part III of The Arbitration and Conciliation Act, 1996 shall be very

helpful specifically with regard to the role to be played by the conciliator. According to Section

67 the conciliator is supposed to act in an independent and impartial manner while facilitating an

amicable settlement between the parties. And he is to observe objectivity, fairness and justice

and has to give due consideration to the rights and obligations of both parties. Mediators

facilitate communication and cooperation between the parties, they help them in identifying the

issues, clarifying priorities, exploring areas of compromise and find points of agreement,

resolution of family dispute requires therapeutic counseling as well, it is therefore imperative

that mediators should be skilled, well trained and informed. Provisions regarding qualifications

for a family dispute mediator can also be specified. Qualified mediators will also increase the

credibility and popularity of mediation.48 Provisions must also recognise local mediators because

a local mediator who knows the local conditions and the parties may resolve the dispute in a

much better way than a stranger. In Indian context, such recognition will facilitate alternative

dispute resolution as people are comfortable and satisfied when their stories are heard in an

informal local process. If the parties find that the informal procedure is unfair or they are unable

to reach to a settlement, they can always approach the formal legal system, therefore compulsory

mediation is safe enough. Compulsory Conciliation under Section 12 of the Industrial Disputes

Act, 1947 has played a very vital role in establishing and maintaining industrial harmony by

preserving relationships. The success of compulsory conciliation in resolving industrial disputes

is another incentive for introducing the same for resolution of family disputes. Further,

compulsory mediation in family disputes has had considerable success in countries like U.K. and

Australia, who have a well developed infrastructure for carrying on family dispute resolution by

mediation, India must also make a similar attempt. Conclusion Mediation is a collaborative,

party controlled, confidential, informed, impartial, balanced and safe, self responsible and

satisfying alternative dispute resolution mechanism. It offers unique and dynamic resolution of

disputes and preserves relationships. It is time to introduce compulsory mediation in family

dispute resolution as it will not only reduce the backlog of cases but will also provide substantial

justice to the parties particularly in Indian context where the family structure is such that

members of a family are too interdependent.

48 “Model Standards for Practice of Family and Divorce Mediation”, 39 Fam. & Conciliation Courts Rev. 121,

available at Westlaw. See, Section 67 of Arbitration and Conciliation Act, 1996.

CONCLUSION: VIEWS AND SUGGESTION

the importance of Alternative Dispute resolution was stressed by the Law Commission of India

–“With the march of time, new demands emerge, which sometimes make the existing system

outdated or non-functional, requiring it to be replaced by a new one. Law should also respond to

the demands of the society. The alternate dispute resolution methods have evolved as a result of

this vision.”49

The Family Courts Act 1984 (FC Act) was enacted 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.

Counselling and conciliation are the two pillars on which the whole structure of FCs is built.

Counselling, in fact, is the foundation on which the philosophy of conciliated settlement rests.

The counsellors, their skill and competence have a tremendously important role to play in the

whole process. The role of the counsellors is not limited to counselling but extends to

reconciliation and mutual settlement wherever deemed feasible. A good number of cases (by one

estimate up to 50 per cent) can be resolved by way of proper counselling. In about three-fourths

of the cases, except of course in cases of rape, adultery, etc, the quarrel starts on very simple

issues. The initial fault may either relate to the husband or the wife. Such disputes and

differences can be worked out with proper and competent counselling.

Notwithstanding the important role of the counsellors, it has been observed that some of the FCs

do not even have any counsellors, and in good number of courts the counsellors keep on

changing frequently. For example, in Tamil Nadu, the marriage counsellors keep changing every

three months, and each time the woman meets a new counsellor she has to explain her problems

all over again, with no continuity is discussion. Many of the counsellors are just part-time and

are not properly trained. Proper selection and training of the counsellors is of crucial importance

for efficient and competent delivery of justice. As is expected, it is the counsellors who take up

the cases at the first stage. It has been seen that in many cases where counselling has failed at the

initial stage; proactive role of the judge has helped in resolving the dispute. The present rules or

49 130th report on “Reforms in the Judiciary” Law Commission of India

practices, however, do not permit the judge to personally counsel the parties when the case has

come up for trial.50

The Family Court Act is not a self-contained Act; it has to be read along with other applicable

laws. The problems connected with substantive laws are formidable and continue to persist. The

jurisdiction of the Family Court Act extends to the problems that arise due to the breakdown of a

marriage, divorce, restitution of conjugal rights, claims for alimony and maintenance and

custody of children;51it does not in any way alter the substantive laws relating to marriage. It is

customary in Indian society for a woman to leave the matrimonial home, and thus she loses

residence therein. For her residence, she has to depend upon her parental home or has to look for

some other shelter. Even though right of residence has now been provided in the newly enacted

Domestic Violence Act, it is yet to be seen how effectively it is enforced in practice. Whether or

not she gets maintenance during a separation or after divorce depends on her ability to prove her

husband’s means. In a situation where women are often unaware of their husband’s business

dealings or sources of income, it is difficult, if not impossible, to prove his income. To make

matters worse, the existence of a parallel black economy makes it impossible to identify the legal

source of income. FCs must have investigative powers to be able to compel disclosures of

income and assets for passing appropriate orders of maintenance.

Alimony and maintenance should be linked not with declared incomes but with life styles of the

parties involved. While assessing the income or assets of the husband for ascertaining the

maintenance amount, the judges should take the assistance from the social workers, NGOs and

probation officers who could, inter alia, draw inference from the standard of living of the family.

Though right of residence has been given to the wife under the Domestic Violence Act, it should

be considered as part of maintenance. Further, the maintenance must be deposited in the court at

the beginning of every month by an assigned date to ensure that the wife receives her dues in

time.

5059th Report of the Law Commission of India51 Section 89 lays down that where it appears to the Court that there exists an element of settlement, which may be acceptable to the parties

Unless corresponding changes are made in the substantive laws in adequate manner conferring

rights on women, the setting up of family courts does not help in altering their position. The right

to matrimonial property would be the first step in ensuring security for women. This would mean

that all property acquired after the marriage by either party, and any assets used jointly, such as

the matrimonial home should belong equally to the husband and the wife. Only when based on

such modifies laws, the FCs would be able to provide effective relief to women in case of

breakdown of the marriage. Even otherwise, courts must be empowered by law to transfer the

assets or income of a husband to his wife and children or to create a trust to protect the future of

the children of a broken marriage. But as the law stands today, courts have no power to create

obligations binding on the husband for the benefit of the wife or children. Without changes in

substantive laws the FCs have and would end up as poor substitutes for civil courts.

The law against domestic violence (including woman) has now been enacted.

It is common knowledge that wife beating is prevalent in all classes of Indian society. It is too

early to say how far this enactment would protect a woman against a violent husband. Such

legislation was urgently required.

The FCA does not explicitly empower the court to grant injunctions preventing violence or

ouster of violent husbands. Though some courts have started giving these injunctions based on

the rights of the wife and children to reside in the matrimonial home and based on recognition of

the husband’s obligation to maintain his wife and children, which includes residence, there

remains a long path yet to be covered. As a result, the Act has ended up being an ineffective

instrument to impart justice to woman. There have been a good number of maintenance orders

and even injunctions passed for restraining the husband from throwing the woman out of the

matrimonial home (or against a second marriage), women, in fact, have been thrown out (and

husbands have married). Since the FC 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. The Family Court system must develop processes, perhaps with

the help of civil society organisations, to ensure that atrocities against women are minimised in

the first place.

As the Act does not define ‘family’, matters of serious economic consequences which affect the

family, such as testamentary matters, are not within the purview of the FCs. Only matters

concerning women and children—divorce, maintenance, adoption etc.—are within their purview.

Though the Family Court aimed at removing the gender bias in statutory legislation, the goal is

yet to be achieved. The Act provides that persons who are appointed to the FCs should be

committed to the need to protect and preserve the institution of marriage and to promote the

settlement of disputes by conciliation and counselling. It was laid down that preference should

also be given to the appointment of women as FC judges.

The Law Commission of India had also stressed that in dealing with disputes concerning the

family, the court ought to adopt a humane approach different from that adopted in ordinary civil

proceedings, and that it should make reasonable efforts at settlement before commencement of

the trial. In selecting persons for appointment as judges, every endeavour should be made to

ensure that persons committed to the need to protect and preserve the institution of marriage and

to promote the welfare of children and qualified by reason of their experience and expertise to

promote settlement of disputes by conciliation and counselling are selected. Justice in all its

facets – social, economic and political – is to be rendered to the masses of this country without

any further loss of time – the need of the hour52

The criteria for appointment of FC judges are the same as those for appointment of District

Judges requiring seven year experience in judicial office or seven years practice as an advocate.

It is common knowledge that in establishing the FCs, the same judiciary has been incorporated,

as it existed in the civil/criminal courts. A change of cadre is yet to be adopted. Besides, there are

problems relating to promotional avenues of FC judges. Several of the FC judges are a

disgruntled lot as they find their avenues for promotion practically stymied.

The judges appointed to the family court do not have any special experience/expertise in dealing

with family matters, nor have they any special expertise in settling disputes through conciliation,

a requirement prescribed in the Act. The provision that women judges should be appointed and

that the judges should have expertise and experience in settling family disputes, more or less, has

remained only on paper. In many states the FCs do not have a single woman judge.52 59 th Report , Law Commision of India(1974)

The Family Courts Act 1984 was enacted with a view to promote conciliation and secure speedy

settlement of disputes relating to marriage and family affairs and for matters connected

therewith. Though this was aimed at removing the gender bias in statutory legislation, the goal is

yet to be achieved. At many places the family courts have failed in fulfilling this objective due to

improper surroundings and failure on the part of the government to make available the desired

set-up for their smooth functioning.

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.

There are several active NGOs who are willing to spare their time to assist the Family Court in

Counselling. The Government of India should take immediate steps to instruct the State

Governments to take necessary action to appoint full-time counsellors to the Family Courts and

also use the services of NGOs, academicians and volunteers to improve the efficiency and

functioning of the Family Courts.

From previous studies, it has been seen that most of the women clients are illiterate, have not

even received primary education, are from the economically backward strata of society and were

between 18 and 28 years. Many of them do not know their own ages. More than half of the

women clients are housewives and do not have any source of income.

There are several reasons behind the marital disputes and one of the partners going to court for

its dissolution. Physical and mental torture, dowry harassment, wife abuse, extramarital affairs of

their partners, incompatibility with their partners owing to various reasons like interference of

their in-laws, irresponsible husbands who are unwilling to provide food and clothing for the

victims and their children, alcoholism, drug addiction, etc. prevent people from living with their

partners.

Even though the Family Court Act provides that cruelty – physical or mental – is grounds for

Dissolution of Marriage, it is difficult for the illiterate women to gather evidence to prove

cruelty. As they undergo physical and mental trauma they are unable to collect the necessary

information required to substantiate their cases. Moreover, ignorance is the major cause of their

inability to furnish the required proof. Hence, it is recommended that the Government of India

amend the Family Laws and relax the rules that insist on evidence after taking into consideration

the practical difficulties of women clients.

It is surprising to discover that the Family Court, which is basically formed to help women

approach the court easily to present their cases, is not functioning in that manner. Instead, all the

cases are presented only by lawyers like any other ordinary civil court. Women have to pay their

advocates fees for every hearing. To avoid interference by lawyers it is suggested that clients can

use them for preparing the applications for registration of the cases. Lawyers should provide

assistance only for technical matters after getting prior permission from the Judge and not get

involved in all the cases.

Women clients have to appear at the Court whenever they had their hearings. It is very difficult

for them to leave their children and appear at court. Hence, it is suggested that it would help

women clients if crèches are provided within the Court premises.

Maintenance cases must be decided immediately, by ordering an interim maintenance and the

final decision must also be declared as early as possible to help the traumatised women victims

to get justice. If the men do not appear for more than two consecutive hearings, the Judge should

order a one-sided hearing. It is also suggested that Family Courts appoint women judges along

with male ones to avoid biased judgements. Corruption must be strictly prohibited and a

Vigilance Cell must be created to check corruption. Officials involved in malpractices must be

punished and severe action taken against officials who harass women by asking unwarranted

questions and failing to help them.

Grievance cells must be set up within the Family Court premises where clients can lodge their

complaints. Counters to provide information about the details of the cases should be opened to

enable women clients to find out about the status of their cases.

Short Stay Homes must be provided within the Court premises, which will help the couples to

stay together and avoid the interference of their in-laws and family members who usually

complicate issues between couples. The Court should also make use of the services of Women

Police Stations, SSPs’ Offices and Local Police Stations to enforce orders passed by the Court,

especially maintenance orders. Cases related to Restitution of Conjugal Rights must be attended

to immediately to help couples reunite and live peacefully. For this purpose, integrating all the

support services together is the need of the hour.

Induct more judges and extend the court timings to late evenings.

Family courts should start an evening shift in addition to the regular day shift.

Due to the heavy pendency of the cases Family Courts should operate on Sundays also

with additional judges.

Additional 6 more family courts in addition to the existing 4 family courts should be

opened without any further delay to cope up with the huge pendency.

The Family Courts shall ensure that all matrimonial cases be disposed within a period of

Six months.

The Family Courts to officially suspend the practice of summer vacation to the benches

till the time limit of Six months is met.

The Family Courts to officially state that no new cases to be taken till the old ones are

disposed.

All long-pending (one year and above) cases should be transferred to the Fast Track

Courts to dispose of within a time limit.

Family Court records must be computerized so that old cases can be disposed on a

priority basis and cases can be tracked scientifically.

As there are overload on the court on a particular date and less-load on some dates hence

the practice of giving dates in the open court must be stopped. Instead dates must be

given by the computer section like in Supreme Court or judges should be given computer

training and computers must be installed so that dates are given in a scientific way.

The tendency of one party to drag the cases to delay the proceeding must be dealt

severely with heavy cost and other means.

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