It is now realized practically all over the word the world that litigation is
regards to any matter concerning family, whatever divorce, maintenance and
alimony, or custody, education and financial support for children or trail of
juvenile offenders should not be viewed on terms of failure or success of legal
actions but as a social therapeutic problem needing solution. It should be
viewed as a litigation in which parties and their counsel are engaged in
resolving family conflicts where humane considerations overweight everything
The resolution of family conflicts requires special procedures –
procedures designed to help people in trouble, to reconcile and resolve their
differences, and, where necessary, to provide assistance. This acting
demonstrates that the traditional adversarial procedure has to be modified and
replaced by a less formal procedure. In our system today, family matter is
entrusted to the district judge who is well versed in ordinary civil and
He tries family matters in usual manner with the normal
adversarial procedure. In other words, the judge who tries who claims for breach
of contract or tort, claims for motor vehicle accidents, and crimes like rape
and murder, also tries all matrimonial matters including custody of children and
spousal maintenance. It is now realized that adjudication of family matters is
entirely a different matter.
It has a different culture; it has a different
jurisprudence. The court adjudication family disputes should function in a
manner that it may tend to conserve and disrupt the family life; it should be
helpful and not harmful to individual partners and their children; and it should
be preservation rather than punitive to family and marriage. It is, therefore,
accepted that adversary system promotes ritualistic and unrealistic to family
The present system offers on legal protection to children. They are
not represented by the counsel, and the court does not have enough information
to determine their best interest. More often than not, children are caught in
the inter-spousal conflict and become pawns, weapons and ultimately victims. The
fact of the matter is that adversarial process precludes reconciliation and
conciliation of inter-spousal and inter-parental conflicts.
Thus, no court which
is engaged in finding out what id for the welfare of the family, whether a
marriage has broken down or not, which spouse should have the custody of access
to children or which spouse needs, support rest content with the assertions and
contentions of the parties and evidence led by them to prove or disprove their
assertions and contentions.
The court engaged in this task requires a less
formal and more active investigation and inquisitional procedure In other words,
it is not a litigation in which parties and their counsel are engaged in winning
or drafting a legal action, but an inquisition in which the parties, social
workers, lawyers, officers, psychiatrists are engaged in finding out a solution
to familial problems.
The concept of family court thus implies an integrated broad-based service to
families in trouble. It stipulates that the family court structure should be
such as to stabilize the marriage, to preserve the family, and where a marriage
has broken down irretrievably, to dissolve it with maximum fairness and minimum
bitterness, distress and humiliation. The family court system visualizes
assistance of specialized agencies and persons.
Status Of Family Court
The Family Courts Act, 1984, at the first instance, stipulates for the exact
purpose of the establishment of family courts for those towns and cities whose
population exceeds one million. It also lays down that the State Governments may
also set up family courts for others areas. Appointment of judges of family
courts is to be made by the State Governments with the concurrence of their High
A family courts may consist of one or more judges. Where there is more
than one judge of a family courts, each judge in competent to exercise all or
any of the powers of the family court. Where a family court has more than one
judge, the State Government with the concurrence of the High Court will
designate one of the judges as the principal judge and any other as additional
The retirement age of the judge of the family court, like that of the judge if
the High Court, is 62 years. The terms and conditions of services and emoluments
of judges are to be determined by the State Governments in consultation with the
It appears that the family Courts act stipulates to confer on the family courts
a status like that of the income-tax tribunal. It is higher than that of the
district judge and lower than of the High Court; appeals from its decision lie
to the High Courts.
Section 4(3) of the Act lays down the qualification of the judges of the family
court. A person who has at least seven years' experience as a judicial officer
or as a member of the tribunal or who has held a post for the exact purpose of
that duration under that Central or a State Government requiring special
knowledge of law, or who has been an advocate of a High Court for at least seven
years may be appointed as judge of family court.
Other qualifications may also
be laid down by the Central Government in consultation with the Chief Judice of
India. Women will give preference for the exact purpose of the appointment as
judges of the family court. Section 4(4)(a) also lays down that "every endeavor
shall be made to ensure that persons committed to the need to protect and
preserve the institution of marriage and to promote the welfare of children and
qualified by reason of their experience and expertise to promote the settlement
of disputes by conciliation and counselling are selected."
certainly conveys that we have accepted the concept of family court, though it
will be a very difficult task to find out such a person. In our submission, the
judges of family court should also have adequate knowledge of psychology,
sociology and social work.
It is evident from the provisions of the Act that those persons who are engaged
in research and teaching of family law in universities and research
institutions, and are consequently experts in family law, are not eligible to be
appointed as judges of the family court. This seems to be an omission made
inadvertently. Particularly when the employees of the Central and State
Governments who are engaged in an employment needing special knowledge of law
This obviously means that for the appointment of judges of the
family court, a person need not have any experience either as a judge or as an
advocate. But then why omit those who are engaged in research and teaching of
family law? One of the two things may be done: either the university employees
may be deemed as Central or State Government employees or Section 4(3)(a) may be
amended by adding a clause "or those who are engaged in teaching of or research
in family law for at least seven years."
Jurisdiction Of Family Court
There is some controversy as to what matters come within the jurisdiction of the
family court. It is agreed upon that all matters directly pertaining to the
family, such as matrimonial causes, maintenance and alimony of spouses, custody,
education and financial support to children, settlement of spousal property, and
guardianship and custody of children should come within the jurisdiction of the
Some hold the view that the para-family matters, such as dowry,
inter-spousal assaults and torts, familial assaults and other criminal matters
between the spouses and children, and inter-spousal and inter-familial contracts
and torts should also fall within the purview of the family court. Parliament
has opted for the former view. Explanation to Section 7(1) lists the following
- a suit or proceeding between the parties to a marriage for a decree of
nullity, restitution of conjugal rights, judicial separation and divorce;
- 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 either of them;
- a suit or proceeding for an order or injunction in circumstances arising
out of a marital relationship;
- a suit or proceeding for a declaration as to the legitimacy of any
- 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.
The family court has also been conferred jurisdiction for passing orders for
maintenance of wives, children and parents. Hitherto, this jurisdiction was
conferred on a magistrate of the first class under Chapter IX, Code of Criminal
Procedure, 1973 (Cr. P.C.). Under Section 125 of the Code, if any person having
sufficient means neglects or refuses to maintain, he may be ordered by the
magistrate to provide maintenance for:
- his wife (including a divorced wife who has not remarried) unable to
maintain herself, or
- legitimate and illegitimate minor children unable to maintain
themselves (major children are also to be included if they are unable to
maintain themselves on account of physical or mental abnormality or injury),
and father or mother unable to maintain himself or herself.
The jurisdiction on the family court can also be conferred in any other matter
under a statute.
One wishes that para-family matters were also included under the jurisdiction of
the family court. At present, it has no jurisdiction on any matter pertaining to
dowry or juvenile offenders.
The Family Courts Act has precedence over other statutes including those of
codified Hindu Law.
The concept of family court essentially implies the discarding of adversarial
procedure. New, less formal, rules have to be framed. In our submission:
- The rules should be framed in simple language clearly indicating the whole
range of procedures, from the commencement of an action to its conclusion,
including the means of enforcing judgments, decrees and orders.
- Flexibility of rules should be the hallmark of the new procedure so that
diverse, at times complex, problems of familial conflicts are covered.
- As far as possible, standard forms should be provided for various types
of proceedings and these forms should be framed in such a manner as to be
adaptable to the circumstances of each case.
- Pleadings should be simple and should not have the traditional
- Pre-trial processes should be designed in such a manner as to provide
dignified means for the parties to reconcile their differences or to arrive
at amicable settlements without the need of trial.
- Facilities for legal advice should be made available to each litigant so
that he or she may become aware of the right and responsibility, and, where,
children are involved, an early opportunity should be provided to ensure
that their rights are adequately protected.
- Issues between the parties should be determined without any prejudicial
delay. This is particularly significant when the court is concerned with the
placement of children.
- The language, conduct, documentation and legal representation should be
simple, shorn of all technicalities.
- Pre-trial documentation of the pleadings should be such that issues
between the parties are clearly defined. This will help avoid frivolous
litigation and encourage pre-trial debate and settlement.
- One of the objectives of the family court system is to encourage and
enable the parties to go into a process of reconciliation, failing which,
the family court judge should have power to pass consent orders, if parties
have been able to come to some settlement without any formality of formal
hearing or trial of issues.
The Family Courts Act seems to opt for a less formal procedure. Although Section
10 of the Act makes the procedure laid down under the Code of Civil Procedure,
1908 (C.P.C.) applicable to family court proceedings, it is also laid down that
the family court is free to evolve its own rules of procedure, and once the
family court lays down its own rules of procedure, they will override the rules
of procedure laid down in the C.P.C. or the Cr. P.C. (such as under Chapter IX
of the Code).
The Act itself contains some provision which indicates the
informality of the procedure. Thus, the family court may receive as evidence any
report, statement, document, information or other matter that may assist it
effectually in resolving a dispute, irrespective of the fact that the same would
be otherwise relevant or admissible under the Indian Evidence Act, 1872. It is
not obligatory on the part of the family court to record the evidence of
witnesses at length.
It would be enough if the judge records or causes it to be
recorded a memorandum is required to be signed by the judge and the witness, and
once that is done, it will form part of the record of the case. Where the
evidence of a person is of formal character, it may be given by affidavit and it
will constitute part of the evidence in the case. The same informality is
maintained about the judgment of the family court.
A judgment of the family
court should contain a concise statement of the case, the points for
determination, the decision thereon and the reasons for such decision. A decree
or order of the family court may be executed by the court itself or any other
family court or by an ordinary civil court in accordance with the convenience of
the party concerned.
No appeal lies against the interlocutory orders. Similarly, no appeal lies
against the decrees or orders passed with the consent of the parties. Otherwise,
an appeal lies to the High Court, both on facts and law. All appeals must be
presented within a period of thirty days from the date of judgment, order or
decree of the family court. All appeals are to be heard by a Bench consisting of
two judges. No second appeal is provided. Of course, an appeal with the special
leave under Article 136 will lie to the Supreme Court.
Proceedings In Camera And Exclusion Of Lawyers
It is now a part of the concept of family court that confidentiality of the
court record should be maintained and if the parties so desire or the court so
thinks proper, the proceedings should be in camera. Section 11 of the Family
Courts Act makes it obligatory on the part of the court to hold the proceedings
in camera if any party so desires. These may also be held in camera if the court
so deems fit.
However, one should not confuse the confidentiality of the
proceedings with secrecy of proceedings. In any democratic system, people are
entitled to know the way the justice is administered and, therefore, no court
should operate in secrecy. Constructive criticism, research and proposals for
reform can only come from the knowledge of the ways and procedures by which the
family court operates.
The Family Courts Act dispenses with the service of the lawyer. Section 13 makes
it abundantly clear when it lays down:
"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."
family court may seek the assistance of a legal expert as amicus curiae whenever
it considers that to do so is necessary in the interest of justice. The
provision is not ultra vires of the Constitution.5
In Kailash Bhansali v. Surender Kumar
, husband filed an application to be
represented by legal practitioner and wife was claiming harassment on the part
of husband. Order appointing legal practitioner for both was passed which was
held by the High Court to be improper.
Training Of Personnel Of The Family Court System
India has taken the necessary first step in the direction of establishing the
family courts. But much more needs to be done before the family court system can
be brought to effective functioning. A vast manpower of trained persons to man
the family courts and the auxiliary services would be needed.
It should be an
essential part of the unified family court system that there should be in
existence a training and continuing education programmed in which the family
court judges, the staff of support services and lawyers should be fully
involved. The personnel of the family court system should have some training in
family law, sociology, psychology and social welfare before being called upon to
discharge their functions. The entire personnel of the family court system
should, at regular intervals, participate in continuing the education programmed
so that they have better understanding of family conflicts and their appropriate
Need for continuous training and research in family law matters and allied
subjects is imperative for the success of the system. This will require the
establishment of some permanent bodies or institutions. We may have family law
training centers in each State and an institute of family court system at the
If family court system is to succeed, we should proceed to make adequate
arrangements and provide adequate facilities for the same. We should immediately
embark on the training of the personnel of the family court system so that by
the time the courts come into existence, we have no difficulty in manning the
same. Otherwise, it will be no more than yet other experiment that failed.