Working of Family Courts in India

1. BACKGROUND NOTE
The immediate reason for setting up of family courts was the mounting pressures from several women's associations, welfare organisations and individuals for establishment of special courts with a view to providing a forum for speedy settlement of family-related disputes. Emphasis was laid on a non-adversarial method of resolving family disputes and promoting conciliation and securing speedy settlement of disputes relating to marriage and family affairs.
In 1975, the Committee on the Status of Women recommended that all matters concerning the ‘family' should be dealt with separately. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family, the court ought to adopt and approach radical steps distinguished from the existing ordinary civil proceedings and that these courts should make reasonable efforts at settlement before the commencement of the trial. Gender-sensitized personnel including judges, social workers and other trained staff should hear and resolve all the family-related issues through elimination of rigid rules of procedure. The Code of Civil Procedure was amended to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. Hence a great need was felt, in the public interest, to establish family courts for speedy settlement of family disputes.
The Family Courts Act which was passed in 1984 was part of the trend of legal reforms concerning women. The President gave his assent to the Family Courts Act on September 14, 1984. The Act provides for a commencement provision which enables the Central Government to bring the Act into force in a State by a notification in the Official Gazette, and different dates may be appointed for different States. This Act has 6 chapters under various heads such as Preliminary, Family Courts, Jurisdiction, Procedure, Appeals and Revisions and Miscellaneous.
Section 3 of the Act empowers the State governments after consultation with the High Court, to establish, for every area in the State comprising a city or town, whose population exceeds one million, a family court. The criteria for appointment of a Family Court Judge are the same as those for appointment of a District Judge requiring seven years experience in judicial office or seven years practice as an advocate. The Central Government is empowered to make rules prescribing some more qualifications. Apart from prescribing the qualification of the Judges of Family Courts, the Central Government has no role to play in the
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administration of this Act. Different High Courts have laid down different rules of the procedure. A need for a uniform set of rules has however been felt.
The Act provides that persons who are appointed to the family courts should be committed to the need to protect and preserve the institution of marriage and to promote the settlement of disputes by conciliation and counselling. Preference would also be given for appointment of women as Family Court Judges. Section 5 enables the State Government to associate institutions engaged in promoting welfare of families, especially women and children, or working in the field of social welfare, to associate themselves with the Family Courts in the exercise of its functions. The State Governments are also required to determine the number and categories of counsellors, officers etc. to assist the Family Courts (sec. 6).
Section 7 confers on all the family courts the power and jurisdiction exercisable by any District Court or subordinate civil court in suits and proceedings of the nature referred to in the explanation to section 7(1) of the Act. These, inter-alia relate to suits between parties to a marriage or for a declaration as to the validity of marriage or a dispute with respect to the property of the parties, maintenance, guardianship etc. In addition, the jurisdiction exercisable by a First Class Magistrate under Chapter IX of the Cr.P.C. i.e. relating to order for maintenance of wife, children or parents, has also been conferred on the family courts. There is also an enabling provision that the family courts may exercise such other jurisdiction as may be conferred on them by any other enactment. Provision has also been made to exclude jurisdiction of other courts in respect of matters for which the family court has been conferred jurisdiction.
Chapter IV of the Act deals with the procedure of the family court in deciding cases before it (sec. 9). It has been made incumbent on these courts to see that the parties are assisted and persuaded to come to a settlement, and for this purpose they have been authorized to follow the procedure specified by the High Court by means of rules to be made by it. If there is a possibility of settlement between the parties and there is some delay in arriving at such a settlement, the family court is empowered to adjourn the proceedings until the settlement is reached. Under these provisions, different High Courts have specified different rules of procedure for the determination and settlement of disputes by the family courts. In the rules made by the Madhya Pradesh High Court, the family court judge is also involved in the settlement, and if a settlement cannot be reached then a regular trial follows. It is also provided that the proceedings may be held in camera if the family court or if either party so desires. The family court has
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also been given the power to obtain assistance of legal and welfare experts. Section 13 provides that the party before a Family Court shall not be entitled as of right to be represented by a legal practitioner. However, the court may, in the interest of justice, provide assistance of a legal expert as amicus curiae. Evidence may be given by affidavit also and it is open to the family court to summon and examine any person as to the facts contained in the affidavit. The judgement of the family court iin concise and simple containing the point for determination decision and the reason for the same. The decree of the Family Court can be executed in accordance with the provisions of the CPC or Cr.P.C., as the case may be. An appeal against judgement or order of family court lies to the High Court.
The Act gives power to each of the High Courts to make rules for the procedure to be followed by the family courts in arriving at settlements and other matters. The Central Government has been given the power to make rules prescribing additional qualifications for appointment of a Judge of the family court. The State Government has also been empowered to make rules providing for, inter alia, the salaries of family court judges, terms and conditions of service of counsellors and other procedural matters.
The Act was expected to facilitate satisfactory resolution of disputes concerning the family through a forum, and this forum was expected to work expeditiously, in a just manner and with an approach ensuring maximum welfare of society and dignity of women.
The Act however does not define ‘family'. Matters of serious economic consequences, which affect the family, like testamentary matters are not within the purview of the family courts. Only matters concerning women and children divorce, maintenance, adoption etc. - are within the purview of the family courts.
The Act also brought civil and criminal jurisdiction under one roof. This was seen as a positive measure to centralize all litigation concerning women. Secondly, the very nature of criminal courts facilitated quicker disposal of applications to a civil court. Thirdly, there was seriousness and a sense of intimidation associated with a criminal court, which would act in a woman's favour. Also the Act brought under one roof, matters which were handled by forty odd magistrates and at least two courts in the city civil court, into five court rooms in the city of Mumbai.
While the Act laid down the broad guidelines it was left to the State Government to frame the rules of procedure. However, most state governments did not bother
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to frame the rules and set up family courts. Rajasthan and Karnataka were the first two states to set up family courts. But soon women litigants as well as activists were disillusioned with the functioning of the courts. The overall situation is the same everywhere, with minor differences. In Tamil Nadu, the marriage counsellors keep changing every 3 months and each time the woman meets a new counsellor she has to explain her problems all over again, with no continuity in the discussion.
The Family Courts Rules in Maharashtra were framed in 1987. They deal elaborately with the function and role of marriage counsellors in family courts. In fact 27 out of 37 sections deal with this aspect. Wide powers have been given to the marriage counsellors e.g. to make home visits, to ascertain the standard of living of the spouses and the relationship with children, seek information from the employer, etc. While a rare and sensitive marriage counsellor makes use of this power in the interest of women, more often these powers are used against the women in the interest of the family since it is imbibed into the minds of such counsellors that their primary commitment is to preserve the institution of marriage. Further, the reports prepared by marriage counsellors based on their investigation, are not binding on the judges. The report of the marriage counsellor is kept confidential, and not made a subject of cross-examination.
After the preliminary meeting with the marriage counsellor, the case would proceed as per the rules of the Code of Civil Procedure. The rules do not simplify procedures but merely reproduce the Code of Civil Procedure with the minor addition that parties should be present in person.
Critical Analysis / Suggestions
The Family Courts Act 1984 was enacted with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. Though this was aimed at removing the gender bias in statutory legislation, the goal is yet to be achieved.
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.
Family courts 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
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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 women 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.
To begin with, an example where the objective of the family court is diminished due to procedural lapses may be cited. Rules formulated are yet to provide a specific format for the interim applications, summons, etc. Many lawyers still use the format which is provided in the Civil Procedure Code which uses words like “Counsel can be heard by; Counsel for the Petitioner”, although the lawyers are not allowed to represent clients.
Absence of Lawyers
The requirement of following the provisions of the Civil Procedure Code makes things even more difficult for the lay person who is completely unaware of the legal jargons. The Act and Rules exclude representation by lawyers, without creating any alternative and simplified Rules. Merely stating that the proceedings are conciliatory and not adversarial does not actually make them so. The situation has worsened because in the absence of lawyers, litigants are left to the mercy of court clerks and peons to help them follow the complicated rules. Women are not even aware of the consequences of the suggestions made by court officials. For instance, when a woman files for divorce and maintenance, the husband turns around and presses for reconciliation only to avoid paying maintenance. It is crucial to the woman that people who are mediating are aware of these strategies. If a judge or a counsellor feels that a woman should go back to the husband simply because he is making the offer and as a wife it is her duty to obey him, it will be detrimental to the woman's interest.
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Sustaining Rights Lacking
In addition to procedural lacunae, other problems connected with substantive law persist. Family courts have been set up to deal with problems that arise on the breakdown of a marriage, divorce, restitution of conjugal rights, claims for alimony and maintenance and custody of children. The setting up of family courts does not in any way alter the substantive law relating to marriage. Divorce disentitles a woman to the matrimonial home. Whether or not she gets maintenance during a separation or after divorce depends on her ability to prove her husband's means. In a situation where women are often unaware of their husband's business dealings and sources of income, it is difficult, if not impossible, to prove his income. To make matters worse, the existence of a parallel black economy makes it impossible to identify the legal source of income.
In such a situation, unless the law changes in radical ways conferring rights on women and creating new rights in their favour, the setting up of family courts will not help to alter their position. The right to community of matrimonial property would be the first step in ensuring security for women. This would mean that all property acquired after the marriage by either party, and any assets used jointly, such as the matrimonial home, will belong equally to the husband and wife. Based on such a law, family courts would be able to provide effective relief to women in case of breakdown of the marriage. Even otherwise, courts must be empowered by law, to transfer the assets or income of a husband to his wife and children or to create a trust to protect the future of the children of a broken marriage. But as the law stands today, courts have no power to create obligations binding on the husband for the benefit of the wife or children.
The other much neglected area of law for women is domestic violence. Wife beating is prevalent in all classes and yet there is no effective law to prevent it or protect a woman against a violent husband. Such a law is urgently required.
With these changes in substantive laws, family courts would be empowered to protect women, but without them these courts have ended up being poor substitutes for civil courts. The adversarial system is unsuited to the needs of women who are in any case disadvantaged and have no access to their husband's assets and income. Family Courts must have investigative powers to be able to compel disclosures of income and assets for passing appropriate orders of maintenance. The Family Courts Act does not explicitly empower the court to grant injunctions preventing violence or ouster of violent husbands. Though some courts have started giving these injunctions based on the rights of the wife and
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children to reside in the matrimonial home and based on recognition of the husband's obligation to maintain his wife and children which includes residence, there remains a long path yet to be covered. As a result the Act has ended up being an ineffective instrument to impart justice to women.
Actual Functioning
The haphazard way in which the courts were set up is a reflection on the attitude of the state towards women's issues. It reconfirms the fact that most legal reforms have been carried out only as a token measure to appease women's groups without any real concern for women.
The courts were set up almost over night, without any preparation whatsoeverThe total lack of infrastructure and basic facilities make the fight for justice a Herculean task. While both men and women are affected, in any given situation women who do not have any exposure to and experience in dealing with public institutions, are the worst sufferers. The women also become victims of the general anti-women bias in society which is reflected in the attitude of the judges, court clerks or peons who treat the women litigants with contempt while the men experience a certain camaraderie (the brotherhood of men) with the judge, the clerks or the peons depending upon the social strata they belong to.
In the absence of basic infrastructure like a stamp office, typist and stationery, services of a notary or even adequate sitting arrangements, canteen and drinking water, the litigants are subjected to endless hardships.
The court is seen more as a court doling out maintenance orders, rather than a court deciding crucial legal and economic issues.
The judges appointed to the family court do not seem to have any special experience or expertise in dealing with family matters, nor any special expertise in settling disputes through conciliation, a requirement prescribed in the Act. The provision that women judges should be appointed and that the judges should have expertise and experience in settling family disputes, have remained only on paper. In many states the family court does not have a single woman judge.
The Act also provides for legal aid services for the economically weaker section of litigants. The Rules provide for tape recorders for recording evidence at trial proceedings which could be used at the appeal stage but this proposal would be too far-fetched for the family courts, which do not even have adequate
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provisions for paper and stationery to begin with. Unless these lacunae are removed the family courts will be a hindrance rather an aid to women's fight for justice.
2. RATIONALE
It is known that family courts have been in existence for several decades in countries like Britain, Japan, Australia etc. The movement to establish family courts in India was initiated around 1958 by Smt. Durgabhai Deshmukh, the noted social worker from Maharashtra. From the beginning the objective of establishing these courts was to provide speedy disposal of cases involving problems faced by women who were traumatized by marriages that had turned bitter.
Regular courts had been filled to the brim with civil disputes and could not be expected to provide expeditious relief to these harassed victims. With their heavy work loads, the Judges could not even be expected to display the sensitivity required in dealing with broken marriages. The handling of custody matters are other problems which require a human touch. In order to explore the possibility of a reconciliation, concerted efforts aimed at resolving the disputes, may be through counselling, were needed before sanctioning the breakup of the marriage.
A multi-pronged approach was felt necessary. The Law Commission had, in its 59th Report issued in 1974, stressed that in dealing with disputes concerning women, the court must adopt a radically different approach than that adopted in ordinary civil proceedings.
In any case, a great deal of time of the civil courts was being consumed in family disputes which could be handled at much less cost of time and money by family courts. It was felt that these courts would right from the start, adopt a radical approach to family disputes by attempting counselling even before the start of proceedings. Rigid rules of procedures and evidence could also be done away with in such courts. Thus the idea to segregate such cases and establish a new institution of family courts within the judicial system found favour with the authorities.
This was followed by an All India Family Court Conference held in 1982 wherein suggestions emerged that two issues need to be addressed :-
(a) Divorce on the basis of mutual consent.
(b) Divorce on the basis of irretrievable breakdown of marriage.
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It is important to note that the suggestion of irretrievable breakdown which was mooted first in 1976 has still not seen the light of the day and is a matter which needs to be discussed - either incorporated within the laws or discarded once and for all.
It was felt at that time that family courts should address specified problems like matrimonial home, custody of and provision for children; speedy disposal of cases, informality of procedure, etc. It was specifically thought that lawyers should be prohibited from arguing matters in the family courts unless specific permission is taken from the Court.
Finally, the Family Court Act was passed in 1984 and all welcomed the Act. The Act was meant to provide for the establishment of Family Courts with a view to promoting counselling and securing speedy settlement of disputes relating to marriage and family affairs and matters connected therewith.
The backlog of cases of family matters pending with the various courts was gradually transferred to the newly established family courts thus, reducing the existing load of civil courts.
These courts were meant to endeavour in the first instance to effect reconciliation or a settlement between the parties in a family dispute. During this stage, the proceedings would be informal and rigid rules of procedure would not apply. It is also provided that the courts could take assistance of social welfare agencies, and counsellors and also secure services of medical and welfare experts. The parties to a dispute are not entitled, as a matter of right, to be represented by legal practitioners, However, the court, in the interest of justice, can seek the assistance of legal experts as amicus curiae. The Court is to follow simplified rules of evidence and procedure so as to enable it to deal effectively with the family disputes.
The current family court system has a thoroughly dissatisfying record. Over the last 17 years it has fostered intense anger, frustration and resentment over the continual misuse and abuse of its power and authority. It has become a system that has lost trust of the majority population regarding its capability to provide any kind of a fair and just forum for handling family disputes. Unless the present situation of the family courts is remedied, the women will be forced to continue to remain unsecured within their family and society.
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3. OBJECTIVES OF THE WORKSHOP
From the statistics available from the Department of Justice, it is understood that so far 85 family courts have been set up in different States and Union Territories across the country.
Now that the institution of family courts has been functioning for over a decade and a half, it is important to evaluate its performance and discuss matters relevant to their functioning. In fact, around the first half of 1999 an agenda item was discussed at the Commission meeting to set up special courts for women. It was then felt that it is more important to evaluate the special courts which are already set up, i.e. family courts and to ensure that suggestions are forwarded to the Government for improving their functioning. It is in keeping with this discussion that the present proposal for a national workshop was drawn up.
The workshop aimed at throwing up concrete suggestions/solutions after deliberations with those who have occupied benches of the family courts and who could therefore give a clear picture from within, based on their individual experience, of the difficulties that are faced within the courts and suggestions for improvement.
4. SALIENT THEMES EMERGING AT THE WORKSHOP
4.1 Morning Session with the Voluntary Organisations
4.1.1 Meaning of Family Courts : Judges and Court staff, Counsellors, Psychologists, Psychoanalysts, Social Workers and Social EngineersGender sensitization and orientation for them
It was submitted that there is a need to sensitize, train and orient the judiciary to the real meaning of the Family Courts Act. The social workers escorting women are not given due recognition. Family courts look upon such social workers with contempt or having no role. It was reiterated in the workshop that proper training would add to the informality of the atmosphere, which is required of the family courts.
It was rightly pointed out that the very description of the subject as A versus B indicates hostility. It was accordingly suggested that the case should be addressed as, ‘In the matter of marriage of A and B’.
It was contended that the concept of change in paradigm has somehow not been recognised. The module could shift from adversarial module to a conciliatory
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