S.N.D.T.

Women’s University Law School

Project Topic:- Family Court

Subject:- Family Law-II (Semester- IV)

Submitted by:
Name :- Pratiksha Tripal Bhagat
Class :- LLB 2nd Year
ROLL NO:-4

Submission (Month & Year):

14th May, 2021

Under the guidance of:

Ms. Anuradha Kumar

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 Index
SR. No. Topic Page No
1 Introduction 3

2 How Did Family Courts Come Into Existence 4-5

3 Family Courts Act include the following act 6-7

4 Family Courts: Objects and Purpose 8

5 Family Courts Act: Salient Features 9

6 Conciliation and Counselling in Family Court 10

7 Role of Lawyers and Counsellors in Family Courts 11

8 Role of Counsellors and Gender Issues 12

9 Procedure to be followed by Family Courts 13-14

10 Important provisions of the Family Courts Act, 1984 15-19

11 Common cases heard in family courts 20-23

12 Perception of educators for online learning during lockdown 21

13 Learn How To Make Your Online Learning More Engaging 22-23

14 Challenges faced by family courts 24

15 Suggestion 25

16 Case laws 26

17 Conclusion 27

18 References 28

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 Introduction
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 need to establish the Family Courts was first emphasized by the late Smt.
Durgabai Deshmukh. After a tour of China in 1953, where she had occasion to study
the working of family courts, Smt. Deshmukh discussed the subject with Justice
Chagla and Justice Gajendra gadkar and then made a proposal to set up Family Courts
in India to Prime Minister Pt. Jawahar Lal Nehru.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.

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 How Did Family Courts Come Into Existence

Family disputes are very different from other matters of litigation. The main
object of normal litigation matters is to determine the rights of the parties and decide
who is right and who liable for compensation or any other order of the court.
However, in family matters, the question is not to decide who is right and who is
wrong but try to reconcile and resolve the differences between the parties. Resolution
of family matters requires a specialized procedure that is designed to help parties in
dispute to resolve their disputes and if needed to obtain assistance. Hence, the
traditional court procedure should be altered and replaced by a less formal procedure.
Prior to the introduction of the Family Courts Act, 1984 family disputes are put
before a district judge who deals with all sorts of criminal and civil matters and he
tries family matters following the usual adversarial procedure. This means, a judge
who tries matters of tort, breach of contract, murder, rape, etc., also tries family
disputes including child custody, maintenance, divorce, etc.
It is now understood that the adjudication of family disputes is a completely
different concept, it has a different jurisprudence and a different culture. The courts
deciding family matters must function in a manner that tends to protect and not disrupt
the family life, it must be helpful for the parties and also the children and not affect
their lives, and lastly, it should be preservative rather than punitive towards the family
and marriage. Therefore it can be said that the adversary system promotes formalised
and unrealistic response to family disputes. The fact that adversarial process precludes
reconciliation and resolution of the parties in dispute concludes that such courts are
not interested in finding the welfare of the family, whether a marriage is broken or not,
who must have the custody of the child, it all depends of the contentions put forward
by the parties and the evidence brought by them to support their contentions. Family
disputes are very delicate and must not be treated as other litigation matters. The
courts engage in deciding family matters must be less formal and follow inquisitional
procedure, meaning, it must not be litigation where the parties and their counsel
engage in winning and defeating but an inquisition where they come together to find a
solution to the problem with the intention to resolve and reconcile.

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 Family disputes need to be decided in a speedy manner because if a couple
files for divorce they cannot wait for five to ten years for it, family matters are very
delicate and if not instantly redressed then there will be no point to even bring up their
matters before the court.
But the increasing number of pending cases in the courts makes it impossible
to dispose of family matters within a short period. When family matters are heard in
open court, it becomes difficult for the parties especially women, as it infringes their
privacy and most things are very intimate and sensitive which the parties might not
feel comfortable in sharing before the open court and in most cases they do not openly
express their problems. There might be cases where a woman files for divorce on the
ground of cruelty and states that she was subjected to domestic violence, harassment
for dowry, etc., so in this case, the issues which have criminal aspect are put before the
criminal court and other issues like divorce, maintenance, etc., are brought before the
civil court. This becomes very difficult for the parties as for the different aspects of the
same case like divorce, cruelty, violence, demand for dowry, etc., different
applications are to be filled in different courts. This only leads to waste of time and
money of the parties and also adds up on the burden of the court and wastes the time
of the court and only creates complications. Hence, there was felt the need to establish
one court which dealt with all matters relating to family. It was felt that conciliation;
counselling and individualized treatment with the expertise of law is better suited for
dealing with family disputes. A platform must be created where the parties themselves
present their case as only they can make the court understand the dispute in the best
way.
The need for the introduction of family courts was first highlighted by late Smt.
Durgabai Deshmukh when she returned from her tour to China where she had closely
studied the working of family courts. The need for the family court was a twofold
policy, one to reduce the increasing backlog in the courts by setting up separate courts
for family matters and second to create a less formal platform to resolve family
disputes. The family courts were established as a response to the demands of the
women's movement ensuring women rights.

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 Family Courts Act include the following act :
a. The Hindu Marriage Act, 1955: This act codifies the marriage law of the
Hindus and primarily deals with the validity and conditions for invalidity and
applicability of marriage.
b. Special Marriage Act, 1954: The act affords a special method of civil
contractual marriage (and divorce) for all Indian nationals regardless of religion or
faith followed by the parties. This act does not require the customary or religious rites
or ceremonies of marriage to be observed.
c. Dissolution of Muslim Marriage Act, 1939: This act explains the dissolution
of marriage by women married under Muslim law and the effects of the renunciation
of Islam by a married Muslim woman.
d. Foreign Marriages Act, 1969: This statute deals with marriages of citizens of
India living outside India.
e. The Indian Divorce Act, 1869: The law relates to the divorce of persons
professing the Christian religion.
f. The Parsi Marriage and Divorce Act, 1936: This law deals with marriage and
divorce among the Parsis.
g. Muslim Women (Protection of Rights & Divorce) Act, 1986: The act deals
with the matters of the divorced Muslim women and restricts their right to
maintenance from their former husband.
h. Muslim Personal Law/Application of Shariat Act, 1937: This act requires the
application of the Islamic Law Code of Shariat to Muslims in India in their family or
personal matters.
i. Hindu Adoption and Maintenance Act, 1956: The law codifies the legal
process of adopting children by a Hindu adult and the legal obligations to provide
maintenance to the various family members.
j. The Indian Christian Marriage Act, 1872: This law regulates the
formalization of marriages among Indian Christians.
k. Hindu Minority and Guardianship Act, 1956: The statute explains the
guardianship relationships of Hindus involving the adults and minors as well as
between people of all ages and their respective property.
l. Guardian and Wards Act, 1890: This is a non-religious and universally
applicable law regarding the issues relating to guardianship of a child in India.

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 m. Chapter IX of the Criminal Procedure Code, 1973: This deals with the
issues of maintenance of wives, children and parents.
n. Protection of Women from Domestic Violence Act, 2005: This statue
provides safeguards to the wife or female live-in partner against domestic violence by
husband or male live-in partner or his relatives.
This law also provides protection to other women living in a household
including sisters, widows, or mothers. The Family Courts Act provides mandatory
powers to the state governments to set up family courts in cities and towns with
population over one million, and discretionary powers for areas with less than one
million. However, some states have failed to create family courts; the reasons cited
range from financial and space constraints to lawyers blocking any such move.

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 Family Courts: Objects and Purpose

The preamble of the Family Courts Act, 1984 gives the basic purpose for the
establishment of family courts as, to promote conciliation in, and secure speedy
settlement of disputes relating to marriage and family affairs and matters concerned
therewith.
The purpose of family courts is to provide an integrated broad-based service to
families in dispute. It implies that the structure of family courts must be such as to
stabilise and preserve the family and to decide these matters with maximum fairness,
keeping in mind the benefit of both the parties and the family as a whole and with
minimum distress and humiliation.
Today the concept of family unity is increasingly being undermined and this
needs to be strengthened. Hence, the basic objective of family courts is to preserve a
marriage whenever practicable and not allow families to break down due to litigation.
This needs a speedy settlement of family disputes adopting simplified less formal
procedure. Successful handling of family problems requires understanding and co-
operating between a lot of things and involving the well-being of the parties. The
procedure followed in family courts is different from the usual procedure; suitable
modifications in the interest of justice and quick disposal of family matters are thus
desirable in the relevant laws and rules.
The act emphasises on settling family disputes by way of mediation and
conciliation. Using these approaches is to resolve disputes ensure that the matter will
be solved by way of agreement between the parties and also reduces the chance of
further conflict. The main aim of family courts is to give priority to the mutual
agreement of the disputing parties over the usual process of adjudication. In
conclusion, the aim of these courts to create an environment which is less formal
where family matters can be resolved amicably!'

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 Family Courts Act: Salient Features
Family courts in every state have the power to frame their own procedure and
once they formulate their own rules and procedures they need not follow the procedure
given under the Code of Civil Procedure. There is no mandatory requirement for the
family courts to record evidence. There lies an option of appeal before the High Court
against the decree of Family Court, application for which must be filled within thirty
days from the date of the judgement. If the parties consent then in camera proceeding
can also be conducted. There parties to suit before the family court need not be
represented by a lawyer and are required to represent themselves before the court,
however, the court may request the services of a legal practitioner as amicus curiae.
Family Courts aim at providing gender equality and in each case try their best to
preserve the marriage. These courts provide a friendly environment with fewer
complexities that helps the parties to resolve disputes in a better manner. Family
Courts also ensure speedy justice as it provides for mandatory conciliation and most of
the matters get settled before even actually coming to the court and the cases that
come before the court are also disposed within a specified time period.
The Act aims to provide for the establishment of Family Courts by the State
Government and make it obligatory on the State Governments to set up a Family Court
in every city or town with population of more than one million and also to enable the
State Government to set up, such Courts, in areas other than those specified above as
and when required.
The Act makes it obligatory on part of the Family Courts to endeavour, to
affect reconciliation or a settlement between the disputing parties in the first instance.
During this stage, the proceedings will be informal and strict rules of procedure will
not apply. The Act also provides for the assistance of social welfare agencies
counsellors, etc., during conciliation stage and also to secure the service of medical
and welfare experts.
The Act has also simplified the rules of evidence and procedure and also
removed the mandate on the parties to be represented by an advocate.

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 Conciliation and Counselling in Family Court
Auxiliary services are an essential help to the family courts. No family court is
capable to succeed without a well organised support service. The primary motive of
these support services it to help the parties to conciliate in a less adversarial
atmosphere. No family court system can succeed without the support of well-defined
and well developed auxiliary services. The auxiliary service have the following four
components, firstly family counselling, conciliation and reconciliation services,
secondly investigative services, thirdly legal aid services and lastly enforcement
services.
The counselling services must not be a part of the family court system, but a
community service that is easily available to the one who needs it. These services of
conciliation and reconciliation must be made available to parties before the disputing
parties approach the court and also when they are in court. The main aim of the family
courts is to promote reconciliation whenever it is possible and when it is not possible
or not wanted by the disputing parties, to ensure settlement of all issues that are to be
addressed at the time of dissolution of marriage. It also provides for post-adjudication
counselling services to help parties resolve post-divorce disputes.
As the family courts do not follow the usual court procedure it therefore
requires to provide investigational services. This means it is required to investigate the
facts of the cases and submit a report that will help the court to decide the case and
also collateral matters like education, custody and support of children, maintenance
and alimony, etc.
The main objective of these legal aid services is to safeguard the interest of the
parties first. It is not about winning or losing but more about coming on the same page
and settling issues. The parties themselves must represent their case and when it comes
to children they must also be given chance to represent themselves before the court so
that the court can understand what is in the best interest of the disputing parties and
also the child.
Family courts make all efforts to settle family disputes through mediation and
other ADR mechanisms.5 The courts with prior consent of the disputing parties refer it
to the mediation centre. To ensure timely disposal of these cases, the family courts set
a reasonable time period for the mediation centres to finish the process as otherwise it
will lead to delay, however if the court feels that there is a reasonable chance of
settlement, the court may extend the time limit.

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 Role of Lawyers and Counsellors in Family Courts
The Family Courts Act restricts the role of lawyers and enhances the use of
counsellors in the dispute resolution to encourage mutually amicable settlements. This
is peculiar as well as contrary to the practices of other courts, which commonly
employ the English legal method of practice called the adversarial system of
adjudication. In the adversarial system of adjudication, the judge plays the role of a
neutral arbiter and decides based on the merits of the case presented to him/her by the
lawyers of the opposing parties. The Family Courts Act limits the role of the lawyers
as legal experts or 'amicus curiae' who the courts may consult for opinion. The Act
does away with lawyers with the hope to prevent excessive litigation costs, corruption,
manipulative and subversive tactics, extended and bitter court battles and refusal to
settle or compromise, and so on. However, critics have argued that lawyers are
necessary to help clients with complex cases and court procedures in which the
counsellors may not have that kind of expertise. Moreover, there has been no
mechanism created to ensure the availability of 'amicus curiae' or 'legal experts' for the
constant needs of courts. Accordingly, family courts have routinely allowed lawyers to
represent clients.
As described earlier, the Family Courts Act has given the counsellors high
preference over lawyers in the family courts in order to promote efforts for settlement
between the parties. However, in practice the role of counsellors is mere superficial.
Majority of the states do not adequately integrate the requirement of counsellors with
the legal practice of family courts; the role of the counsellors is limited to the task of
ascertaining if the dispute can be reconciled, and even this not beyond the preliminary
stage and not in the actual trial of the case. The situation of counsellors in court
practice is a new idea and neither the judges nor the lawyers are oriented to this
concept. There exists a wide disparity among states with respect to the process adopted
to appoint the counsellors, their qualifications and remunerations, their role, and the
counselling techniques employed. While some states have used non-governmental
organizations as counsellors, others have used trained personnel, individual volunteers,
as well as lawyers.

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 Role of Counsellors and Gender Issues
There are a few states such as Maharashtra, where counselors play a
considerable role in promoting negotiations and settlements. Women groups contend
that counselors should be trained with gender-sensitivity as the neutral stands of
counselors usually ends up being anti-women, influenced by long standing patriarchal
biases against women.
The women groups have demanded clearly defined frameworks for gender
justice in the practice of the family courts, especially with respect to the roles of
counselors in order, to avoid gender biases in the process of fulfilling the statute
mandate of 'speedy settlement' and 'protect and preserve' the family. For example, in
order to accomplish the mandate of 'reconciliation', some counselors coerce women to
reconcile and return to the spousal home disregarding women's human dignity,
physical safety and economic rights. In other instances, where women have been
physically abused and thrown out of their matrimonial homes and have demanded
maintenance (under section 125 of the Criminal Procedure Code), the counselors and
lawyers have regularly and successfully sought reconciliation, which is argued to be a
legal trick that undermines women's claim to maintenance. Section 125 of the
Criminal Procedure Code is a safeguard that makes maintenance mandatory for
neglected children and women. Likewise, family issues are nuanced and have legal
complexities; gendersensitivity may help counselors to not merely take neutral
positions but consider the unequal power relationships between men and women in
reconciliation and settlement processes.
One of the major criticisms by the women groups, about the Family Courts Act
and the family justice system as a whole, is that the conceptual basis of 'gender
justice', the prime objective of the women's movement, is left out. Instead, the Family
Courts Act focuses on 'preservation of the family' through conciliation and in a speedy
manner. Women's groups have always maintained that 'preservation of family' is not
synonymous with 'gender justice' or 'rights of women'.

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 Procedure to be followed by Family Courts:
Procedural matters relating to Family Courts may be summed up as under:
i. A Family Court is deemed to be a ‘civil court’ and has all the powers of a
civil court. The provisions of the Code of Civil Procedure, 1908, apply to all suits and
proceedings before a Family Court.
ii. In every suit or proceeding, the Family Court must, whenever it is possible
to do so, endeavour to assist and persuade the parties to the litigation to arrive at a
settlement.
iii. All suits and proceedings may be held in camera if the Family Court so
desires, and shall be so held if either party so desires. (Proceedings are said to be held
in camera when members of the public are not allowed to attend such proceedings.)
iv. In every suit or proceeding, the Family Court may take the assistance of
medical and welfare experts, in discharging its functions under the Act.
v. No party to the suit or proceeding before a Family Court can engage a
lawyer as a matter of right. He can do so only if the Court considers it necessary, in the
interest of justice, to allow him to be represented by a lawyer.
vi. A Family Court may receive as evidence, any report, statement, document,
information or other matter which, in its opinion, would assist it in effectively dealing
with a dispute before it – whether or not the same would be relevant or admissible
under the Indian Evidence Act, 1872.
vii. A Family Court need not record the evidence of witness at length. It would
be sufficient if the Judge records, or causes to be recorded, a memorandum of the
substance of the deposition of the witness. The Judge and the witness must sign such a
memorandum, which then forms part of the record of the case.
viii. If evidence is of a formal nature, it may be given by way of an affidavit.
ix. The judgment of the Family Court must contain a concise statement of the
case, the points for determination, the decision of the Court and the reasons for the
decision.
x. All decrees and orders of a Family Court can be executed under the relevant
provisions of the Code of Civil Procedure, 1908.
xi. Appeals from judgments and orders of a Family Court can be filed, both on
points of law and of facts, before the High Court, within thirty days of the date of the
judgment or order. No appeal can, however, be filed:

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 a. Against an interlocutory order of the Court, or
b. Against an order or decree passed with the consent of the parties.
All such appeals are to be heard by a Bench of the High Court consisting of
two or more 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.
• 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.

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 Important provisions of the Family Courts Act, 1984
The Family Courts Act, 1984 was enacted on September 14, 1984. This act
contains 6 chapters and 23 sections. The act was enacted with the main aim of
establishment of family courts for rapid and safe settlement in the disputes arising in
family and marriage and the matters related therewith.
• Establishment of family courts in India
According to Section 3 of this act, the State government, after consultation
with the High Court shall establish the Family Court in every area of the state where
the population is exceeding 1 million or in the area where the State government deem
necessary.
The State government, after consultation with the High Court, shall specify the
limits of the area till where the jurisdiction of the Family Court extends. It may also
reduce, increase, or alter such limits of the jurisdiction of the Family Court.
• Appointment of judges
The provisions related to the appointment of judges in the Family court are
dealt under Section 4 of the Family Courts Act, 1984. The state government has the
power to appoint one or more persons as the judges of the Family Court after
consulting with the High Court. The state government, after consulting with the High
Court, may also appoint any of the judges as the Principal Judge and any other judge
as to the Additional Principal Judge. The main function of the Principal Judge is to
distribute the business of the court among the various judges and the Additional
Principal Judge is appointed to exercise the powers of the Principal Judge in his
absence or when he is not able to do so due to illness or any other cause.
This section also led down the following qualifications which are required for
appointing as judge of the Family Court:
1. He must have worked for a term not less than seven years in a Judicial Office
in India or in the office of a Member of a Tribunal or any post under the
Centre or a State which requires special knowledge of law; or
2. He must have worked as an advocate of a High Court or two or more courts
of succession for a term not less than seven years; or
3. He must possess such qualifications as prescribed by the Central government
after consulting with the Chief Justice of India; or
4. He must have not attained the age of sixty-two years.

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 In this process of selection of judges, it must be ensured that the person
selected must know how to settle a dispute by way of conciliation and counselling, to
protect the marriage and to promote the welfare of the children by their reason and
experience. While selecting the judges, it must also be ensured that the preference
shall be given to the women.
The salary or honorarium, other allowances payable and other terms and
conditions of the judges of the Family Court will be decided by the State Government
after consulting with the High Court.
• Jurisdiction
Section 7 of this act confers those power and jurisdiction on the family courts
which are exercised by the District Court or Subordinate Civil Courts in their suits and
proceedings. The Explanation of this section tells about the nature of the suits and
proceedings, which are as follows:
1. A suit or proceeding for the decree of nullity of marriage, or restitution of
conjugal rights, or for the dissolution of the marriage between the parties;
2. A suit or proceeding for determining the validity of a marriage or
matrimonial status of a person;
3. A suit or proceeding in the matter related to the properties between the
parties to a marriage;
4. A suit or proceeding for an injunction or order arising out of a marriage;
5. A suit or proceeding for declaring the legitimacy of a person;
6. A suit or proceeding for maintenance;
7. A suit or proceeding for the guardianship of the person, or custody of any
minor.
• Association of social welfare agencies-
The State Government may, in consultation with the High Court, provide, by
rules, for the association, in such manner and for such purposes and subject to
such conditions as may be specified in the rules, with a Family Court of- -The
State Government may, in consultation with the High Court, provide, by rules,
for the association, in such manner and for such purposes and subject to such
conditions as may be specified in the rules, with a Family Court of-"
(a) institutions or organisations engaged in social welfare or the representatives
thereof;
(b) persons professionally engaged in promoting the welfare of the family;

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 (c) persons working in the field of social welfare; and
(d) any other person whose association with a Family Court would enable it to
exercise its jurisdiction more effectively in accordance with the purposes of this Act.
• Duty of Family Court to make efforts for settlement.-
(1) In every suit or proceeding, endeavour shall be made by the 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. -(1) In every suit or proceeding, endeavour shall be made by the 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."
(2) If, in any suit or proceeding, at any stage, 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 for such period as it think fit to enable attempts to
be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in
derogation of any other power of the Family Court to adjourn the proceedings.
• Proceedings to be held in camera.-
In every suit or proceedings to which this Act applies, the proceedings may be
held in camera if the Family Court so desires and shall be so held if either party so
desires. -In every suit or proceedings to which this Act applies, the proceedings may
be held in camera if the Family Court so desires and shall be so held if either party so
desires."
• Assistance of medical and welfare experts.-
In every suit or proceedings, it shall be open to a Family Court to secure the
services of a medical expert or such person (preferably a woman where available),
whether related to the parties or not, including a person professionally engaged in
promoting the welfare of the family as the court may think fit, for the purposes of
assisting the Family Court in discharging the functions imposed by this Act. -In every
suit or proceedings, it shall be open to a Family Court to secure the services of a

17
medical expert or such person (preferably a woman where available), whether related
to the parties or not, including a person professionally engaged in promoting the
welfare of the family as the court may think fit, for the purposes of assisting the
Family Court in discharging the functions imposed by this Act."
• Right to legal representation.-
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: -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\:" Provided that if the Family Court considers it necessary in the
interest of justice, it may seek the assistance of a legal expert as amicus curiae.
• Record of oral evidence.-
In suits or proceedings before a Family Court, it shall not be necessary to
record the evidence of witnesses at length, but the Judge, as the examination of each
witness proceeds, shall, record or cause to be recorded, a memorandum of the
substance of what the witness deposes, and such memorandum shall be signed by the
witness and the Judge and shall form part of the record. -In suits or proceedings before
a Family Court, it shall not be necessary to record the evidence of witnesses at length,
but the Judge, as the examination of each witness proceeds, shall, record or cause to be
recorded, a memorandum of the substance of what the witness deposes, and such
memorandum shall be signed by the witness and the Judge and shall form part of the
record."
• Evidence of formal character on affidavit.-
(1) The evidence of any person where such evidence is of a formal character,
may be given by affidavit and may, subject to all just exceptions, be read in evidence
in any suit or proceeding before a Family Court. -(1) The evidence of any person
where such evidence is of a formal character, may be given by affidavit and may,
subject to all just exceptions, be read in evidence in any suit or proceeding before a
Family Court."
(2) The Family Court may, if it thinks fit, and shall, on the application of any
of the parties to the suit or proceeding summon and examine any such person as to the
facts contained in his affidavit.

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 • Judgment.-
Judgment of a Family Court shall contain a concise statement of the case, the
point for determination, the decision thereon and the reasons for such decision. -
Judgment of a Family Court shall contain a concise statement of the case, the point for
determination, the decision thereon and the reasons for such decision."
• Execution of decrees and orders.-
(1) A decree or an order [other than an order under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974)], passed by a Family Court shall have the same
force and effect as a decree or order of a civil court and shall be executed in the same
manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the
execution of decrees and orders. -(1) A decree or an order [other than an order under
Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], passed by a Family
Court shall have the same force and effect as a decree or order of a civil court and
shall be executed in the same manner as is prescribed by the Code of Civil Procedure,
1908 (5 of 1908) for the execution of decrees and orders."
(2) An order passed by a Family Court under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for
the execution of such order by that Code.
(3) A decree or order may be executed either by the Family Court which passed
it or by the other Family Court or ordinary civil court to which it is sent for execution.
• Appeal.-
(1) Save as provided in sub-section (2) and notwithstanding anything contained
in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every
judgment or order, not being an interlocutory order, of a Family Court to the High
Court both on facts and on law. -(1) Save as provided in sub-section (2) and
notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908)
or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal
shall lie from every judgment or order, not being an interlocutory order, of a Family
Court to the High Court both on facts and on law."
(2) No appeal shall lie from a decree or order passed by the Family Court with
the consent of the parties 1[or from an order passed under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974): Provided that nothing in this sub-section shall
apply to any appeal pending before a High Court or any order passed under Chapter

19
IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of
the Family Courts (Amendment) Act, 1991].

Common cases heard in family courts

• Dissolution of marriage
India is one of the countries with the largest population, due to which there are
many married couples in the country. While having this large number of married
couples, there will be more chances of having more cases of disputes between the
couples and their family. And for seeking remedy they will surely approach the
courts.
In India, the family court can accept the appeals for grant of decree of divorce
under various acts like Dissolution of Muslim Marriage Act, 1939, Muslim Women
(Protection of Rights on Divorce) Act, 1986, the Parsi Marriage and Divorce Act,
1936, the Divorce Act, 1869, the Special Marriage Act, 1954, Foreign Marriage Act,
1969 etc. For the dissolution of Hindu marriage, one can file an appeal for divorce
under Hindu Marriages (validation of proceedings) Act, 1960.
In the case of Reddy Anada Rao v. Ms Totavani Sujatha, the appellant and the
respondent were living their life by following Christian religion but they got married
as per the Hindu rituals in a Hindu temple. The appellant i.e. the husband claimed that
he was forced to marry the respondent therefore, he appealed for the dissolution of his
marriage and to set aside his marriage certificate. The question was raised by the
office of the family court that the marriage was itself null and void as per the
provisions of Hindu Marriage Act, 1955 so there is no need for the suit. The judge
held that the appeal for dissolution of marriage is not maintainable in the family court
as Section 5 and Section 11 of the Hindu Marriage Act has clearly laid down that the
marriage is null and void if it has been done with coercion or without the consent of
any party. Later, the husband appealed in the High Court for which the court held that
as per the Explanation (a) of Section 7 of Family Courts Act, 1984, the family court
has jurisdiction in the concerned matter. As per the provisions of this act, the family
court has jurisdiction over the disputes arising out of the marriage of any caste or
creed.
• Child custody
The explanation (g) in Section 7(1) provides that the family court has
jurisdiction to grant the custody of the child to a proper person and to make that right

20
person the guardian of a minor. The cases related to the custody of the child are filed
before the family court where he usually resides. For example, if the father is residing
in Uttar Pradesh and the mother along with the minor child is residing in Mumbai and
the father wants to have custody of the child then he has to file the case in Mumbai’s
family court. Thus, the family court has exclusive jurisdiction over child custody
cases. The family court has also the power to accept the petitions made under
the Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act,
1956.
• Security orders- domestic violence
The family courts act has not specifically mentioned the jurisdiction of the
family court in matters of domestic violence. And this is the area where family courts
are lacking. Though the act hasn’t made any provision related to the matters of
domestic violence. However, there is a provision under the Protection of women from
Domestic Violence Act, 2005 (hereinafter DV Act), according to which the family
court can entertain the matters related to domestic violence. The DV Act is not wholly
a criminal law; it has also granted powers to the civil and family courts. As per Section
26 of the DV Act, the victim can not only claim relief from the Magistrate but also
from the family court and other civil courts.
In the case of Sudhannya K.N. vs. Umasanker Valsan (2013), the Kerala High
Court discussed the scope of DV Act and held that the scope of DV Act is wide as it
guarantees rights to women to approach either magistrate or family court for filing suit
according to her comfort zone. The court also held that the family court has the power
to pass the interim protection orders as well as interim residence orders under Section
26 of the DV Act.
However, Section 26 is not used adequately because the powers of the family
court are not properly described as in the matters related to domestic violence and also
the family courts are not clear about their jurisdiction under Section 26 of the DV Act.
Due to this, most of the victims approach the Magistrate instead of the family courts.
• Maintenance
Under the family court act, explanation(f) of Section 7(1) clearly provides that
the family courts have jurisdiction over the suits or proceedings for maintenance. Also
under Section 7(2), the family courts have the power to exercise a jurisdiction which is
exercised by a Magistrate of the first class under Chapter IX of the Code of Criminal

21
Procedure, 1973, which is related to maintenance of wife, children and parents. This
means the family courts can grant maintenance under Section 125 of CrPC.
The Supreme Court recently in the case of Rana Nahid v. Sahisul Haq
Chisti (2020) has given a contrasting judgement over the jurisdiction of the family
court under Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act).
The facts of the case are: a Muslim woman moved to the family court of Ajmer under
Section 125 of CrPC for claiming maintenance from her husband as she was harassed
for dowry and was thrown out of the home. The family court accepted the application
made under Section 125 of CrPC, as an application under Section 3 of the 1986 Act.
The family court ordered the husband to pay Rs 3 Lakh to his wife and Rs 2000 every
month for the maintenance of his child.
The husband moved to the High Court against the order of the family court and
questioned the jurisdiction of the family court under the 1986 Act. The High Court
held that the family court has no jurisdiction to pass such an order under the 1986 Act.
However, the petitioner can approach the Court of competent Magistrate under Section
3 of the 1986 Act. The wife approached the Supreme Court against the order of the
High Court.
Justice Bhanumati was of the opinion that the family court has no jurisdiction
for accepting an application filed under Section 3 of the 1986 Act. She supported her
opinion by saying that Section 3 of the 1986 act confers exclusive power on the
Magistrate of First Class to entertain applications made under the said section. She
also made reference to the judgements passed by various High Courts. However,
Justice Indira Banerjee holds the position that the family court has the jurisdiction for
accepting applications made under Section 3 of the 1986 Act. She held that the
preamble of the Family Courts Act suggests that it is a secular statute which means all
the laws are applied in the matters irrespective of the religion. Also, Section 7(1), of
the act provides that the family court has the same powers and jurisdiction as of a
District or Subordinate Civil Court to entertain suits or proceedings for maintenance.
She also made a reference to the principle of equality under Article 14 and Article
15 of the Indian Constitution and extended the jurisdiction of the family court for the
benefits of Muslim divorced women.
• Property disputes
As per the explanation (c) of Section 7(1) of the family courts act, the family
court has jurisdiction over the disputes related to the property of the parties to the

22
marriage. Generally, the disputes between the parties to the marriage arise when the
decree of the divorce has been passed. The family court can entertain the suit or
proceeding related to the disputes of the property of the parties of the marriage by
satisfying two conditions:
Such a dispute must have arisen between the parties to the marriage only;
Such a dispute must have arisen due to the property of either party.
In the case of Mrs Mariamma Ninan v. K.K. Ninan (1997), the petitioner i.e.
the wife approached the family court for the partition of the property and claimed her
separate possession as she also contributed Rs 3 lakh for the construction of the
property. The family court didn’t accept the petition and directed the petitioner to file
a Civil suit. However, the High Court set aside the order of the family court and held
that the said matter falls under the jurisdiction of the family court as per Section 7(1)
of the family courts act. The high court held that the family courts have jurisdiction to
entertain the disputes related to the partition of the property of the parties to the
marriage. Therefore, the high court resend the matter to the family court and directed
the court to entertain the matter and settle the dispute.

23
 Challenges faced by family courts
The Family Courts Act, 1984 was enacted to resolve the family-related
disputes through an innovative forum. It was predicted that this forum will work in a
just manner and will secure the maximum welfare of the family. With this view, the
Family Courts were set up under Section 3 of this act. The main objective of the
family court was to provide speedy settlement with fewer expenses and formalities, in
disputes relating to marriage and family and to make an agreement between the parties
for their reconciliation. But this objective is not fulfilled yet.
The following are the challenges which are faced by the family courts:
1. Section 2 of the act has defined some terms. However, it has not defined the
term “family”, due to which matters arising out of economic consequences
which affect the family in various ways are not covered by the family court.
Only matters related to marriage, maintenance and divorce are dealt with by
the family court.
2. The Act has empowered the state government to make rules for the working of
the family court in their states but most of the state government haven’t
effectively used these powers to make rules and set up family courts.
3. The situation became worse when the counsellors and other authorities kept on
changing. If a suit went for a long time and in the middle of it if the counsellor
got changed then it became difficult for the parties, especially women to
convey their problems again. The same thing has been witnessed in the state of
Tamil Nadu where the marriage counsellors kept on changing every 3 months.
4. As the family court follows the provisions of code of civil procedure in the
suits or proceeding it creates difficulties for a common man to understand the
complex law. The act hasn’t created any simplified rules which can be
understood by a layman.
5. The act has also negated the presence of lawyers in the suit or proceeding of a
family court which create difficulties for a common person to understand the
procedure and formalities of the court. In such circumstances, the parties of a
suit have to depend on the clerks and peons of the court.
6. The act was enacted to establish family courts across the country with a
conciliatory approach to secure speedy relief to the parties but it failed to
ensure gender justice and equality due to orthodox thinking of judges and
patriarchal attitude of the counsellors.

24
 Suggestions
The family courts were established to settle the disputes arising from a
marriage with a conciliatory approach and providing speedy relief to the parties
through settlement. But these objectives were not fulfilled due to various reasons like
lack of clarity in the procedure followed by the court, improper infrastructure, biased
counselling, lack of lawyers, an inappropriate mechanism for execution and many
others. There are following suggestions which should be adopted by a family court to
ensure proper working of the court:
1. The only aim of family courts is to settle the dispute of the family through
a conciliatory approach. They don’t make any attempt to secure gender-based
equality. The disputes can be resolved in a woman-friendly manner. But the
government and the legislature haven’t thought of making some changes in the
law.
2. The judges of the family court are appointed based on the qualification as that
of judges of District Court. There is a need to change this process. There
should be an organised program where judicial education on gender justice
should be imparted. Also, the judges should be trained well in dealing with the
disputes related to the family.
3. The role of counsellors should be more clear as they only focus on the reunion
of family and not care about the interests and security of a woman. They
should be trained to be more neutral while settling the disputes.
4. The suggestions made by the workshop of the National Commission for
Women should be incorporated with the Act such as:
• The procedure prescribed by the act should be simplified by the legislature so
that it could be easily understood by a layman;
• The provision of the Act which grants maintenance should also include the
residence of women;
• Family courts can take assistance from NGOs and other welfare societies to
help the court in discharging its functions;
• The counsellors should not be changed frequently and they should be trained
well;
• A woman should be allowed to file a case in the family court or district court of
where she resides not particularly of where the marriage was solemnized or of
where the husband is residing.
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 Case law:

1. 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. (Shyni v. George, AIR 1997 Ker 231)

2. The expression “parties to a marriage” would include a divorced wife, and

therefore, such a person can file proceedings in a Family Court. (К. A. Abdul v. T. A.
Sahida, AIR 1997 Ker 269)

3. The Bombay High Court has observed 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.
(Leela v. Mahadeo, AIR 1991 Bom 105)

4. A civil suit cannot be filed to declare as null and void, a decree passed by a Family
Court. (Shahnaz v. Shirin, AIR 1955 Bom 30)

5. 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. (Dr. Rohit Dandekar v. Dr. Raj Kavitha, (2004) 1 DMC 216)

6. The jurisdiction of Family Courts have precedence over matrimonial and family
laws statutes in force in India. (Rajan v. Shobha, AIR 1995 Bom 246)

26
 Conclusion
Before 1984, all family matters were heard by the ordinary civil court judges
who used to take a long time to provide relief to the parties. In 1984, the Family
Courts Act was passed and came into force. The main objective of the act was to take
family and marital disputes out from the overburdened and traditional courts of law
and to bring them in the simple court where a layman could also understand the
procedure of the court. The main aim of the act was to follow the conciliatory
approach to promote a settlement between the parties and provide them with speedy
relief. But these aims were not fulfilled. Nowadays the conclusion has been derived
that the speedy remedy is a myth. The family courts need to adopt various appropriate
steps for the smooth functioning of the family court.

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 References:

1. The Family Courts Act 1984

2. D Nagasaila (1992): Family Courts: A Critique, Economic and Political Weekly, Vol.
27, No. 33, Aug. 15, 1992.
3. http://www.legalhelpindia.com/family-courts-act/family-courts-section.html
4. http://www.legalserviceindia.com/article/l356-Family-Courts-in-India.html
5. http://ncw.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf
6. http://www.lawisgreek.com/why-we-have-family-law-courts-in-india
7. http://lawmin.nic.in/Just.htm
8. http://indialawyers.wordpress.com/tag/family-court/
9. http://dcw.delhigovt.nic.in/Family%20Courts.htm
10. http://www.ektamadurai.org/public/pdf/Family_Court_Study_Book_let.pdf
11. http://www.iaml.org/cms_media/files/adr_in_indian_family_law.pdf
12. http://www.24dunia.com/english/search/objectives-of-family-court-act.html
13. http://www.sudhirlaw.com/indianlaw/marriage-divorces/enactments/FAMCRT.htm

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