Although not a new concept, family courts do exist in several Western countries.
India's judiciary already has too many cases of family matters that have been
pending for a long time. Family concerns, such as divorce and child custody,
must thus be viewed as social therapy issues.
When deciding what is best for the
welfare of family members, whether a marriage has broken down or not, who should
have custody of the children, or other such matters, the court cannot and should
not be content with the assertions of the parties and their evidence alone. The
engagement of the court in this task necessitates a special approach that is
less formal and more investigative.
To put it another way, this should not be
seen as litigation where the parties and their lawyers are concerned with
winning or losing a case, but rather as a cooperative effort between the
parties, lawyers, social workers, welfare officers, and psychiatrists to find a
resolution to the problems occupying the court's attention.
This concept of family court is therefore a hybrid approach with various
aspects. According to this viewpoint, the family court system ought to be set up
in a way that supports marriage stability and family maintenance. A system like
that does not seem to be compatible with the current legal system.
Introduction To Family Courts (Amendment) Bill, 2022
The Family Court (Amendment) Bill, 2022 is a bill that seeks to grant statutory
provisions to family courts in the state of Himachal Pradesh and Nagaland for
better and smooth disposal of family matters and to secure speedy settlement of
The Bill was introduced in the Lok Sabha (lower house of the Indian Parliament)
on July 18, 2022, by the Minister of Law and Justice, Kiren Rijuju.
features of the Bill include:
- It aims to make provisions for the creation of family courts in the
states of Nagaland and Himachal Pradesh starting on September 12, 2008, and February 15,
- Additionally, it aims to include a new Section 3A[i] that will
retroactively legitimize all acts made by the state governments of Himachal Pradesh and
Nagaland as well as their respective family courts under the aforementioned Act
before the Family Courts (Amendment) Act of 2022 took effect.
- The measure stipulates that any appointments of family court judges, as
well as any postings, promotions, or transfers made by the Act, shall be
valid in both States.
History Of The Family Court Act, 1984
The first person to see the necessity for the family court was Smt. Durgabai
Deshmukh stressed the significance of creating Family Courts. Smt. Deshmukh had
the opportunity to discuss the subject with several judges and legal
specialists. She travelled to China in 1953 to observe the operation of family
courts. The establishment of family courts in India was her next suggestion to
Prime Minister Pt. Jawaharlal Nehru.
The establishment of family courts to resolve family conflicts has been
regularly advocated by several women's organizations, other groups, and
individuals. Family courts would emphasize negotiation and reaching socially
desirable outcomes rather than strictly adhering to norms of process and the
production of evidence.
The same issue was raised by the 59th Law Commission Report[ii] which
recommended family courts should be established by the states, and judges should
be appointed based on their qualifications. A further recommendation made in
1975 by the Committee on the Status of Women was to treat family disputes
differently from other civil matters.
The government changed the Code of Civil
Procedure in 1976 to adopt a distinct procedure for family law matters, although
this change had little effect. Last but not least, a lot of women's groups and
NGOs working on family welfare tried to put pressure on the government to create
special courts for speedy hearings in family-related disputes. This Act was
passed as a consequence of the law commission's findings and the tireless
efforts of several women's organizations and NGOs. This protracted process led
to the passage of the Family Court Act of 1984.
The Family Court Act of 1984, which established Family Courts, was passed to
foster amicable resolution of disputes involving matrimonial and family concerns
as well as other connected issues.
The Supreme Court ruled in M.P. Gangadharan v. State of Kerala
[iii] that family
courts should be formed not only because they are required under the Act but
also because the state must be aware that it is required to provide the
necessary infrastructure for the venue for conflict settlement.
Reason For Formation Of Family Court
- Overburden of Civil Courts- As the nation progressed the number of cases about family issues such as divorce, maintenance, child custody, and Parental Rights increased day by day which in turn led to a redundant burden on the civil court and decreased its efficiency. Therefore, to resolve this issue which is not so featured the family court was created in 1984.
- Delay in the deliverance of Justice- The Civil Court which was overburdened with civil cases as well as family matters cases was a moratorium in delivering justice to common people in a specified time which weaken the hope of people in the justice system of the nation.
- No Specialised court for dealing with family matters- The population of the nation had drastically increased by the year 1984 and the number of cases was also increasing and there was no specialized court that would specifically deal with family matters. The establishment of a family court would ensure that the family matters would be settled and resolved in the best possible way.
- Parliament addressing the needs of the Law Commission and Committee and
Committee on the Status of Women- The Law Commission Report of 1957 also
emphasized that there is a need for a separate family court that will solely
deal with family matters so that they may opine their expertise knowledge in
dealing with the matters. The Committee on the Status of Women also
recommended the establishment of a family court and it was a part of legal
reforms aimed at women it became mandatory for the Parliament to establish a
separate family court. Therefore, on July 14, 1984, President signed the
Family Court Act containing 6 Chapters and 23 Sections.
Significance Of Family Court
- To encourage Negotiation and Mediation in marital conflict - One of the special features of the Family Court is that it first works on the concept of resolving the dispute by appointing an arbitrator who tries to settle the dispute amicably without the involvement of any court.
- To preserve family ties - The main objective or aim of the family court is to preserve family ties and to preserve the bond within the family for a healthy life and prosperous life.
- To quickly find a solution to the family issue - If the trial of the family matters is being carried out in a civil court, it will be a long and tedious process which, in turn, will delay the delivery of justice to the common man.
- To give prompt justice and swiftly resolve family law disputes - The specialized court will deliver justice promptly and efficiently without any delay or hindrance. This, in return, will increase the faith and justice of the common man in the justice system.
The purpose of family courts is to quickly provide relief to the parties via the
settlement of marital issues using a conciliatory approach. But for a variety of
reasons, including unclear court processes, poor infrastructure, biased
counseling, a shortage of attorneys, an ineffective execution mechanism, and
many more, these goals were not achieved. To guarantee the proper operation of
the court, a family court should embrace the following recommendations:
- Family courts solely exist to mediate family conflicts using a conciliatory strategy. They don't try to guarantee gender equality in any way. The conflicts may be settled in a way that respects women. However, neither the government nor the legislature has considered amending the statute.
- Based on their qualifications as District Court judges, the family court justices are chosen. This procedure needs to be altered. There should be a planned program where judges may get training on gender justice. Additionally, judges need to have solid training in handling family-related conflicts.
- Counsellors' roles should be made clearer since they only care about family reunions and are uninterested in a woman's interests or security. They should receive training to help them resolve conflicts more impartially.
- The National Commission for Women's workshop provided several
recommendations that should be implemented into the Act, including:
- The legislature shall structure the act and regulation in such a way that it is understandable by common people.
- The Act's clause granting maintenance needs to include women's homes as well;
- To carry out their duties, family courts might get aid from NGOs and other humanitarian organizations;
- Counsellors should not be often replaced and should possess sound training;
- A woman should be able to bring a case in the district or family court where she lives, not necessarily the one where the wedding was celebrated or the husband is now residing.
- A proper education for women should be given so that they may be aware of their rights.
- A systematic program should be in place to educate judges on gender justice. The judges should also have extensive experience with family law cases.[iv]
As a consequence of the fight by several NGOs and women's organizations around
the nation, the Family Court Act of 1984 was passed. The primary goal was to
facilitate quicker resolution of family law conflicts. Earlier, all family law
disputes were tried in regular courts, which had lengthy adjudication processes.
The family court offers the chance to settle disputes even amicably and with no
financial outlay. The court's intended goal has not yet been accomplished. The
family courts nevertheless require suitable procedures for a trial to progress
smoothly, and its goal should be to ensure that any layperson can comprehend the
case's developments. The goal of creating special courts will be accomplished if
some forward-thinking adjustments are made to this statute.
- The Family Court Act 1984, s 3A
- Law Commission of India, "59th Report on Hindu Marriage Act Pertaining about the Code of Civil Procedure, 1908 (March 1974)
- 2006 Latest Caselaw 313 SC
- The Family Court (Amendment) Bill, 2022 (The PRS India, 4th August 2022) <https://prsindia.org/billtrack/the-family-courts-amendment-bill-2022> (Last Accessed on 30th June)