Family Dispute Resolution

FUNCTIONING OF FAMIL AMILY Y COURT CO URTS S IN INDIA SUCCESS OR FAILURE: FAILURE: A CRITICAL CRIT ICAL STUDY 

SUBMITTE SU BMITTED D TO DR ARUN UP UPADHY ADHYA AY 

SUBMITTED BY MD ABID HUSSAIN ANSARI 2

ND

 SEMESTER

LLM  – FAMILY LAW

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FAMILY COURT IN INDIA: ORIGIN

Marriage as an institution has become the subject of great judicial scrutiny. There are a number of judicial provisions dealing with marriage and its various aspects. Until 1984, matrimonial and other family matters fell within the jurisdiction of the ordinary civil courts of the country, where other civil matters were also litigated. However, most western countries had established special courts familiarly known as Family Courts in order to deal with diverse matters like divorce, separation, maintenance, custody of children, etc. It is generally accepted that litigation in family matters needs to be less formal, less inquisitorial and less adversarial. In India, the need of establishing the family courts was imagined by L ate Smt. Dur gabai Deshmukh in 1953 after the tour of People‟s Republic of China. She had the opportunity to

study about family courts after discussing the subject with Justice Chagla  and Justice Gajendragadkar  and other legal experts. After this, she proposed this idea to the Indian

Prime Minister i.e., Pandit Jawaharlal Nehru regarding it set up a new class of courts meant for Family issues. 1 The formation of family court was a mile stone in the history of Indian judiciary. In 1984 the Government of India after the recommendation of the Law Commission in their 59th Report the family courts were created by a Gazette notification of the Central Government. These family courts are to be established in a town or city where the population exceeds one million or in any area where the State Government considers establishing it. One or more judges constitute the Family Courts but each judge is competent to exercise all the powers of the court. Such courts should endeavour to save and stabilise the institution of marriage, rather than destroy it. It was with these social objectives in mind that India opted for the establishment of family courts by passing the Family Courts Act in 1984. The matrimonial litigation is one of the traumatic experiences in the lives of parents and their children just because it tears apart the relations between them. Apart from emotional  problems, it creates many legal, social and practical complications which break down the family relationship. It is unfortunate; however, that generally the only way available to

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  Article of Family Courts in India: http://www.legalserviceindia.com/article/1356.

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 parties to obtain „relief ‟   from an unhappy and intolerable relationship is by subjecting themselves and their spouses to the hazards of ordinary court procedures. 2 In India the Hindu Marriage Act, 1955 was passed by the parliament in order to deal with the issues related Hindus and till date, several amendments have been made to liberalize the grounds for divorce; coupled with that, the Courts have also so construed and applied the  provisions as to provide maximum relief with least hardship to any of the parties. The same is true in regard to other personal law statutes governing Christians, Parsis and Muslims as well. 3 Thereafter, the Law Commission of India in its report, as early as 1973 4, strongly recommended the need for special handling of matters pertaining to divorce. 5  The Law Commission of India in its 59th report in 1974 had also stressed that in dealing with disputes concerning the family dispute, the court should adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts for settlement before the commencement of trial specifically for family dispute. 6 In India, the family courts were established in various states. Firstly, in the state of Rajasthan on 19.11.19857 followed by the state of Andhra Pradesh on 15.02.1995 8. OBJECTIVE

The Preamble to the Family Courts Act, 1984 enacted by the Indian Parliament states that it is “ An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. ” The object for establishment of family courts in India is to promote the process of conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith as it affects the basic structure of the society. 9

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

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Section 3(1) (a)  of Family Courts Act, 1984 says that every state government after

consultation with the High Court and by notification establishes family court for every area in the State comprising a city/town whose population exceeds one million and under Section 3 (1) (b) says that it may establish family courts for such other areas in the State as it may deem necessary. Section 3 (2) empowers the state government after consultation with the High Court, specify,

 by notification, the local limits of the area to which the jurisdiction of a family court shall extend and may, at any time, increase, reduce or alter, such limits. In the matter of Gangadharam v. State of K er ala 10, the court of law has held that the place of the family court need not be permanent. It can be shifted from one place to yet another place within the area. Section 4 (1) says that the State Government may, with the concurrence of the High Court,

appoint one or more persons to be the judge or judges of a family court to deal the dispute related to it. Section 4 (2) (a)  provides that when a family court consists of more than one judge, each of

the judges may exercise all or any of the powers conferred on the court by this Act for the time being in force. Section 4 (2) (b) provides that the State Government may with the concurrence of the High

Court appoint any of the judges to be the principal judge and any other judge to be the additional Principal Judge. Section 4 (2) (c) that the principal judge may, from time to time, make arrangements as he

may deem fit for the distribution of the business of the court among the various judges. Section 4 (2) (d)  says that the additional principal judge may exercise the powers of the

 principal judge in the event of any vacancy in the office of principal judge or the principal  judge goes on leave. For appointment as judges, the  persons should have seven years‟ experience in judicial office or the office of a member of a tribunal or any post under the Union or a State requiring

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

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special knowledge of law 11, or persons should have seven years‟ experience  as an advocate of a High Court or of two or more such courts in succession 12. The Central Government with the concurrence of the Chief Justice of India may prescribe some other qualifications 13 and also made rules for other qualifications for appointment of a  judge of the family court. 14 FUNCTIONS

The Family Courts are free to evolve their own rules of procedure, and once it does so, the rules so framed override the rules of procedure contemplated under the Code of Civil Procedure. In fact, the Code of Civil Procedure was amended in order to fulfil the purpose  behind setting up of the Family Courts. Special emphasis is put on settling the disputes by mediation and conciliation. This ensures that the matter is solved by an agreement between  both the parties and reduces the chances of any further conflict. The aim is to give priority to mutual agreement over the usual process of adjudication. In short, the aim of these courts is to form a congenial atmosphere where family disputes are resolved amicably. The cases are kept away from the trappings of a formal legal system. The Act stipulates that a party is not entitled to be represented by a lawyer without the express permission of the Court. However, invariably the court grants this permission and usually it is a lawyer which represents the parties. The most unique aspect regarding the  proceedings before the Family Court are that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court. The Conciliators are professionals who are appointed by the Court. Once a final order is passed, the aggrieved party has an option of filing an appeal before the High Court. Such appeal is to be heard by a bench consisting of two judges. WHAT MAKES INDIAN FAMILY COURTS UNIQUE 

Family courts are empowered to formulate their own procedures but till then they have to follow the Civil Procedure Code.

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Evidence need not be recorded.

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

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Judgment can be concise with statement of the case, points for determining decision and reasons.

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Appeal to the High Court can be filed within thirty days from the date of judgment, order or decree of the Family Court.

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If the party desires, in camera proceedings can be conducted.

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 No party to a suit or proceeding under the Family Court shall be entitled to be represented by a legal practitioner but the court may requisition the services of a legal expert as amicus curiae

JURISDICTION

The Family Courts Act also covers areas of the personal laws. All family courts shall have the power and jurisdiction exercisable by any District Court or any subordinate civil court in suits and proceedings of the nature dealt with explanation to Section 7 (1) of the Act. Following are the matters which can be filed in the Family Courts:1. Decree for nullity of marriage 2. Restitution of conjugal rights 3. Judicial separation 4. Dissolution of marriage 5. Declaration of matrimonial status of any person 6. Matrimonial property matters 7. Claim of maintenance 8. Guardianship 9. Custody of children 10. Access of children 11. Application for injunction in matrimonial matters 12. Custody of children, guardianship, legitimacy of child under the Hindu Minority and Guardianship Act, 1956 Therefore, the family courts have the power to deal with grant of decree of divorce and validity of marriages under various personal laws 15.

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

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In the case of Reddy Anan da Rao   v. M s. Totavani Sujatha 16, it was held by the court of law that if any dispute to a marriage between the parties arises irrespe ctive of their caste or creed and validity of a marriage the family court has got jurisdiction. If there is a property dispute between the parties to a marriage the family court can entertain the petition 17. 18 In M rs. Mariamma Ninan v. K.K Ninan  ,  the court of law has held that the family court

entertain suit for partition of the property between the parties to a marriages. 19 Also, in the matter of Suprabha   v. Sivaraman  , it was observed that a suit filed by the wife

for return of gold ornaments, cash e.t.c., given at the time of marriage even after the death of the husband being one arising out of marital relationship though not between the parties to the marriage. The family court can also pass orders or injunctions in circumstances arising out of a marital relationship 20. The family court has got jurisdiction to declare of any person as to the legitimacy 21. The Family Court has no jurisdiction to entertain the applications in certain circumstances. The following cases are some examples. 1. A suit for declaration regarding the illegitimacy of the child cannot be entertained 22. 23  2. In Ranjeet Chobra  v. Savita Chobra  , it was held that a dispute relating to

appointment of Guardian of minor ‟ s property has come under the jurisdiction of the Civil Court. 3. The family court cannot entertain the suit of a minor‟s property. 24 4. The proceedings under Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim woman can apply under Sections 3 and 4 of the said Act for maintenance only to Magistrate of the First Class 25. 5. The suit involving a dispute between the brothers, sisters, mothers, fathers etc. concerning property. 26 16

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

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6. The suit for declaration that the father should provide necessary funds for his daughter‟s marriage. 27 7. Prior to the establishment of the family court, if there was an order already passed by the Civil Court under Hindu Marriage Act, 1955 and any further alteration in that regard is intended it must be made by the Civil Court itself. 28 8. The ambit and scope of the proceedings of a suit for partition and allotment of shares was completely outside jurisdiction of Family Court 29. 9. The suit relating to joint family property in which the parties other than the spouses are sharers cannot be taken as a suit arising out of matrimonial relationship 30. In the matter of Abdul Jaleel v. Shahida  ,31  the Supreme Court held that the Family Courts Act, 1984 was enacted to provide for the establishments of family courts with a view to  promote conciliation in and secure speedy settlement of dispute relating to marriage and family affairs and for matters connected therewith by adopting an approach radically different from that adopted in ordinary civil proceedings. 32 In Shyni v. George  , where a wife can implead a close relative of her husband or even a

stranger to support her claim that the husband had handed over his property to them to avoid recovery of such property. This fact would not have the effect of depriving the Family Court of its jurisdiction. 33 The Kerala High Court held in the matter of K. A. A bdul  v. T. A . Sahida   that the expression

“ parties to a marriage” would include a divorced wife, and therefore, such a person can file  proceedings in a Family Court. 34 The Bombay High Court has observed in Leela v. M ahadeo   that the Act does not contain

any absolute bar to the appointment of advocates to represent the parties, and wherever necessary, the Court must freely make available the service of an advocate to the party before it.

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

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35 In the case of Shahnaz v. Shirin   A civil suit cannot be filed to declare as null and void, a

decree passed by a Family Court. As no specific procedure has been prescribed by the Act for deciding applications for custody of minor children, the only points to be ensured in appeal are whether the procedure which was followed by the Court conformed to the rules of natural justice and whether the  paramount consideration in the mind of the Family Court was the welfare of the child was held in the matter of Dr . Rohit Dandekar v. Dr . Raj Kavitha  .36 In Rajan   v. Shobha 37, it was held that the jurisdiction of Family Courts has precedence over matrimonial and family laws statutes in force in India. ISSUES OF CONCERN

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

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

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Another matter of confusion is that the Act, by virtue of Section 13 provides that the party  before a Family Court shall not be entitled as of right t o be represented by a legal practitioner. However, the court may, in the interest of justice, provide assistance of a legal expert as amicus curiae. This is an example of which the objective behind the family court is defeated due to the procedural lapses. In many Courts it has been observed that they don‟t have counsellors or the counsellors are inapt. A major problem is the counsellors keep changing frequently. The judges appointed to the family court do not have any special expertise in dealing with family matters, nor do they have any special expertise in settling disputes through conciliation. The appointment of women judge in Family Court is still a dream to be achieved. The procedures established in different High Courts have laid down different rules of procedure. This causes confusion during the proceedings. There are still many High Courts who have not yet established Family Courts. Though the act has provided that the proceedings should be conducted without a legal practitioner, the system did not create any alternative system of simplified rules. The litigants are at the mercy of court clerks and peons to advise them on the rules followed. The Family Court suffers from lack of basic infrastructure. In maximum Family courts there is absence of drinking water, canteen, typist; notary. This lack of basic requirements creates hardship. The working conditions are basically unhygienic and poor. CONCLUSION

Setting up of Family Courts in India, indeed was a life changing experience for those who were involved in matrimonial litigation and a dynamic step towards reducing the backlog and disposing off cases while ensuring the effective delivery of justice. The various issues which is related to the functioning of the Family Courts is to be observe in its totality as mentioned in those circumstances which is related to the procedural and substantive aspect of the  problems as well. There are many controversial and debatable issues such as engaging a lawyer due to the specific provisions of the Family Courts Act. 38 In the thirty three years since the Family Courts Act was passed in India, there has been considerable growth in the number of Family Courts in the country. The lacunae arising from the lack of uniform rules and procedures have been illustrated at length. Even if some of the suggestions coming from the marriage counsellors are considered for action, there is substantial scope for improvement in the implementation and administration of the Act. The 38

  http://www.legalserviceindia.com/article/l356-Family-Courts-in-India.html

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

1. Legal prudence has to be simpler. Simplification could be achieved by amendment of laws or judicial interpretation. 2. Grant of maintenance should include provision for residence for women. 3. There must be speedy settlement of disputes. 4. Judges and other court staff must be gender sensitised. 5. Family Courts can also take help of NGOs in the settlement of disputes. 6. Counsellors should be permanently appointed and should be given training. 7. Family courts should follow simple procedures which should not create hurdles to  justice. 8. There should be an informal atmosphere in the family courts and these courts should not be like any other civil courts. 9. Qualified social workers and social activists may also be appointed as judges of the family courts. 10. To bring uniformity in the rules of family courts all over the country a drafting committee may be set up to draft the rules. 11. Every district should have family courts. 12. The office of probation officers must be strengthened and judges should utilise their services. 39

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

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13. Good practices such as facilities like children's complex etc. as existing in Mumbai should be introduced in all family courts. Necessary infrastructure should be provided right at the time of institution of the family courts. 14. Model rules should be prepared for the appointment of judges in family courts. Judges can also act as a counsel at the second stage of counselling. 15. A woman should be allowed to file a case in the family court in the district or state where she resides and not necessarily at the place where the marriage took place or where the husband resides or where they both last resided together. The Family Courts Act 1984 was enacted with a view to promote conciliation and secure speedy settlement of disputes relating to family dispute. Though this was aimed at removing the gender bias in statutory legislation, the goal is yet to be achieved. More importance should be given to the issues. Mechanism of the family courts must develop systems and processes, perhaps with the help of civil society organizations, to ensure that atrocities against women are minimized in the first place so that one can minimize its afterwards effects. It should align themselves with women's organizations for guidance in matters related to gender issues. In the context of family courts, action forums should be initiated and strengthened by incorporating NGOs, representatives of elected members and the active members of the departments such as Urban Community Development, as members. State level monitoring mechanisms could be established to review the functioning and outcome of the cases related to women in the family courts. Women judges and those who have expertise and experience in settling family disputes should be appointed. These special courts should have the authority to try cases against an accused even if the female victim is not willing to testify or is bent upon withdrawing her case. The marriage counsellors should not be frequently changed as it causes hardship to a woman who has to explain her problems afresh to the new counsellors each time. The family courts committed to simplification of procedures must omit the provisions relating to Court Fees Act. Each additional relief should not be charged with additional court fee.

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