Muneeb Rashid Malik
As per the Report of National Commission for Women on Working of Family Courts and Model Family Courts, it is known that family courts have been in existence for several decades in countries like Britain, Japan, Australia etc. The movement to establish family courts in India was initiated around 1958 by Smt. Durgabhai Deshmukh, the noted social worker from Maharashtra. From the beginning the objective of establishing these courts was to provide speedy disposal of cases involving problems faced by women who were traumatized by marriages that had turned bitter. The need for the Family Courts Act was again felt in 1974 and Chief Justice P.B. Gajendragadkar, as the Chairman of the Law Commission, in the 59th Report on the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, opined:
“In our report on the Code of Civil Procedure, we have had occasion to emphasise that in dealing with disputes concerning the family, the court ought to adopt a human approach – an approach radically different from that adopted in ordinary civil proceedings, and that the court should make reasonable efforts at settlement before commencement of the trial. In our view, it is essential that such an approach should be adopted in dealing with matrimonial disputes. We would suggest that in due course, the States should think of establishing Family Courts, with Presiding Officers who will be well qualified in law, no doubt, but who will be trained to deal with such disputes in a human way, and to such courts all disputes concerning the family should be referred.” Almost ten years thereafter when the Family Courts Act, 1984 was enacted, the words of the Chief Justice were quoted in its Statement of Objects and Reasons.
The need was, therefore, felt, in the public interest, to establish Family Courts, for speedy settlement of family disputes. Hence, the Family Courts Act, 1984 was enacted on 14th September, 1984 to provide for the establishment of Family Courts with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs. It extends to the whole of India. In K.A. Abdul Jaleel v. T.A. Shahida, (2003) 4 SCC 166, it was observed that the Family Courts 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. From a perusal of the Statement of objects and reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts matters relating to the property of the spouses or either of them. The Family Court was set up for settlement of family disputes. The reason for enactment of the said Act was to set up a court which would deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. The said Act was enacted despite the fact that Order 32-A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any desired result.
Under the Act, the State Government after consultation with the High Court and by notification shall establish a Family Court in a city or town whose population exceeds one million. The State Government after consultation with the High Court has the power to specify the local limits of the area to which the jurisdiction of a Family Court shall extend. The State Government has the power to appoint Judges of a Family Court as well. Any of the Judges may be appointed as the Principal Judge and Additional Principal Judge. A person shall be qualified for appointment as a Judge if he has for at least seven years held a judicial office in India or the office of a Member of a Tribunal or any post under the Union or a State requiring special knowledge of law or has for at least seven years been an advocate of a High Court or possesses such other qualifications as the Central Government may prescribe. The State Government can also determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions.
A Family Court can exercise all the jurisdiction exercisable by any district court or any subordinate civil court. The types of suits and proceedings which shall be entertained by a Family Court are, a suit or proceeding between the parties to a marriage for a decree of nullity of marriage, restitution of conjugal rights, judicial separation, dissolution of marriage; a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship; a suit or proceeding for a declaration as to the legitimacy of any person; a suit or proceeding for maintenance; a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. A Family Court shall also exercise the jurisdiction exercisable by a Magistrate of the first class under Chapter IX relating to order for maintenance of wife, children and parents of the Code of Criminal Procedure, 1973. A Family Court has to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding. If it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings to enable attempts to be made to effect a settlement. In R. Durga Prasad v. UOI II, (1998) DMC 45, the Court observed that a duty is cast on the Family Court to make endeavour to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceedings and should the Family Court feel that there is a reasonable possibility of settlement between the parties, the proceedings have to be adjourned for a reasonable period to enable the parties to effect such settlement. In Anu Bhandari v. Pradip Bhandari, (2018) 6 SCC 389, the Supreme Court observed that under Section 9 of the Family Courts Act, 1984, the court has a duty to make an endeavour to assist and persuade the parties in arriving at a settlement. Unlike many other legislations, the legislature has cast a duty on the court in that regard. The jurisdiction is not just to decide a dispute, on the contrary, the court also has to involve itself in the process of conciliation/mediation between the parties for assisting them not only to settle the disputes but also to secure speedy settlement of disputes. Such timely intervention of the court will not only resolve the disputes and settle the parties peacefully but also prevent sporadic litigations between the parties.
Under the Act, the proceedings, in a Family Court, may be held in camera if the Court so desires and shall be held if either party so desires. It shall be open to a Family Court to secure the services of a medical expert including a person professionally engaged in promoting the welfare of the family for the purposes of assisting the Family Court in discharging the functions. The judgment of a Family Court must contain a concise statement of the case, the point for determination, the decision and the reasons for such decision. A decree or an order passed by a Family Court must have the same force and effect as a decree or order of a civil court and an order passed by a Family Court under the Code of Criminal Procedure, 1973 shall be executed in the manner prescribed for the execution of such order by that Code. Every judgment or order of a Family Court can be appealed in the High Court but no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties and every appeal shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. The High Courts have been given the power to make rules for carrying out the purposes of the Family Courts Act, 1984.
Therefore, more family courts must be set up throughout the country for proper implementation of the Family Courts Act, 1984, with a view to promote conciliation and secure speedy settlement of disputes relating to family affairs and marriage. Counselling and conciliation are the two pillars on which the whole structure of family courts is built which must be kept in mind by the Judges of the Family Courts at all times. Proper training of the personnel of the family court system is also the need of the hour for the effective implementation of the Family Courts Act. Disputes in a family need to be viewed from the social rather than legal perspective and family courts have a sacrosanct duty to settle such disputes effectively and promptly.
(The author is a student of law.)
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