The family court got established to facilitate the hearing and resolution of marriage cases which are the disputes between the husband and wife. Judges, women’s organisations, and others have asked the central government to adopt a special law to deal specifically with marriage affairs, citing a growth in the number of marital conflicts and the length of time cases are pending in civil and criminal courts.
The Law Commission suggested that the government drafted a special law to establish a Court/s to deal with family disputes in its report 54 and report 55 (1974). As a result, in 1984, the Family Court Act was passed, establishing Family Court in India.
The Hon’ble Supreme Court in M.P. Gangadharan V. State of Kerala (2006 SC) held that a Family Court should be established not only because the Act requires it, but also because the state must be aware of the fact that it has a responsibility to provide all the necessary infrastructure to the forum for dispute resolution.
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Types of Family in India
In culture, the family is the most influential primary group. It is the most basic category of society. The family is a worldwide institution. It is the longest-lasting and most widespread of all social institutions. In the west, a family gets understood as a social and economic unit. Family is a cultural, religious entity in India, China, and Japan. We can classify families into four major types:
A nuclear family includes a man, his wife, and their unmarried children. It is particularly noticeable in modern European and Indian communities and tribal societies such as the Lodha, Santal, and Oraon.
A joint family includes two or more nuclear families sharing a common home, a common hearth, and a common purse. The Hindu joint family, in which numerous uterine brothers live together, best illustrates this sort of family.
A Matriarchal Family is a family whose leadership and succession get passed through the female line. Married daughters and their husbands reside in their mother’s home. After their marriages, sons move away.
The male bloodline is the source of authority and succession in the family. The sons of such families dwell in their parents’ homes permanently, whereas the daughters must leave after marriage. They are to reside at the home of their spouses. The sons split the family property. Nothing is left to the daughter.
What is a Family Court?
Family court is a special court that deals with legal issues that arise from family relationships. Several sorts of courts dealing with specific family issues, such as children’s courts and orphans’ courts, are merged into the family court.
The processes used by the family court are less strict than those used by civil or criminal courts. The family court has its intake procedures, which examine potential cases to exclude those that do not require judicial attention.
Domestic relations courts were the first family courts to get formed in the United States in 1910. The concept is considerably older. The Court for Divorce and Matrimonial Causes was formed in England in the nineteenth century to relieve religious courts of such problems.
The types of matters that family courts handle get defined by special statutes, such as guardianship, child neglect, juvenile delinquency, paternity, support, or family offences.
History of Family Court Act
According to the 59th Law Commission Report (1974) and the Committee on the Status of Women (1975), family disputes should get handled differently from conventional civil proceedings.
According to the Law Commission study, states should establish family courts, and Judicial Officers should be chosen based on experience to assist society. The Code of Civil Procedure was revised in 1976 to include a unique procedure for family law disputes. However, the new law failed to achieve its goal because many courts treated family disputes as ordinary civil cases.
Several NGOs, women’s organisations, and individuals also pressed the government to establish special tribunals to expedite the resolution of family-related conflicts. As a result, in 1984, the Family Courts Act was passed.
Section 3 Family Court Act, 1984 – Establishment of Family Court in India
According to Section 3 of the Family Court Act 1984, the establishment of the Family court is to promote conciliation, mediation and quick resolution of issues involving marriage and family matters.
In coordination with the State Government, the State’s High Court can establish family courts in towns and cities with over a million population.
The State Government appoints the family court judges with the approval of the High Court.
A Family Court can have a single judge or multiple judges and is one level above the District Court and one level below the High Court.
Section 4 Family Court Act, 1984 – Appointment of Judges
According to Section 4 of the Family Act, 1984, when appointing a judge for the family court, women shall get the preference and should meet the following qualifications:
- A person must have either seven years of experience as a judge in India or seven years of experience as a prosecutor in India, or;
- Member of a Tribunal’s Office, or;
- Any position in the Union or a State that necessitates a thorough understanding of the law, or;
- For seven years, the person should have practised at the High Court or two or more similar courts in succession, or;
- Qualifications requested by the Central Government in cooperation with the State Government.
- The person cannot be more than 62 years old.
- The person is committed to safeguarding and upholding the institution of marriage, the welfare of children, and the use of mediation and counselling as methods of conflict resolution.
Section 7 Family Court Act, 1984 – Jurisdiction of Family Court
Section 7 of the Family Court Act of 1984 incorporates the list of situations for which jurisdiction is provided. The Family Court provides jurisdiction for the following conditions:
- Litigation or proceeding brought by the parties to a marriage to obtain a nullity decree, Divorce, Conjugal Rights Restitution and Judicial Separation
- A suit or proceeding to determine the legitimacy of a marriage or a person’s marital status
- A property-related lawsuit or proceedings between the parties
- Child’s custody and financial support
- Wives, children, and elderly parents must get maintenance
In Shyni v. George (1997 Kerala), the court held that in a suit for property recovery, a wife could implicate a close relative of her husband or even a stranger on allegations that the property had been turned up to them by the husband. The Family Court’s Jurisdiction would not be affected.
Common Case related to Family Law in India:
Family cases are a form of civil litigation in which matters between or concerning spouses, parents, and children are addressed. Family courts deal with a wide range of domestic-related conflicts. The following are some of the most prevalent concerns dealt with in a family court
Dissolution of Marriage
When someone wants to end their marriage, they can file a lawsuit in family court and request a court order. Divorce and annulment proceedings might get used to ending a marriage. A separation, in which the parties remain legally married but receive property, alimony, and child custody orders, can also be granted by the court.
Parental Rights and Custody of Children
If a man needs to be declared the child’s father, either parent can initiate a paternity action in family court. It establishes the child’s father for all time. Legal custody, schedule for visitations, physical custody and child support can all get ordered by the court for unmarried parents.
Orders of Protection Against Domestic Violence
Domestic violence victims can seek protection orders from the family court to keep their attacker far.
Changes in the name
A name change case in family court may allow a kid or an adult to alter their name legally.
Guardianship is deciding who will be in charge of a child or an adult who cannot make medical, personal, or financial decisions for themselves.
Adoptions and the termination of parental rights
The family court may terminate a parent’s rights if there are substantial reasons why that parent should no longer have parental contact with that child (such as abandonment, neglect, or abuse). If someone else wants to be a child’s legal parent, a family court can allow an adoption, establishing a legal parent-child relationship.
All cases involving claims of child abuse, child neglect, or minors accused of engaging in illegal behaviour get heard in family court. The Juvenile Division of the District Attorney handles most of these cases. The family court can also approve work permits for minors under the age of 14.
Family Court Procedure
Section 10 of The Family Court Act, 1984 outlines the procedures to be followed in family court. It provides that the method outlined in the Code of Civil Procedure, 1908, applies to family court procedures.
It’s worth noting that the Family Court is a part of the civil court system. Section 10 (3) empowers the family court to establish its methods for settling the parties. The rules of procedure established by the family court will supersede those established by the Civil Procedure Code of 1908 and the Code of Criminal Procedure of 1973.
- The Civil Procedure Code (CPC) and any other applicable law apply to the actions or proceedings, except the exception mentioned above.
- Depending on the conditions or facts of the case, the family court can decide on its approach for settling.
- Proceedings can be held in camera if both the parties and the Family Court agree.
- If a case requires it, Family Court can request amicus curiae. Parties should not be allowed to get legal advice under any circumstances.
- If necessary, the family court may seek the assistance of medical or welfare specialists.
Challenges Faced by Family Court in India
The fundamental goal of the family court was to give a quick resolution of problems involving marriage and family, with fewer costs and formalities, and to reach an agreement between the parties for reconciliation. However, this objective has yet to be met. The following are some of the difficulties that family courts face:
- Section 2 specifies some terms of the legislation. The term “family” is not defined. The family court only hears cases involving marriage, child support, and divorce. Thus issues resulting from economic implications that affect the family in numerous ways are not addressed by the family court.
- The Act gives state governments the authority to create regulations for the operation of family courts in their jurisdictions. Still, most state governments have not effectively utilised these powers to create rules and set up family courts.
- When counsellors and other officials kept changing, the situation worsened. If a suit goes on for a long time and the counsellor changes in the midst, it becomes difficult for the parties, particularly women, to communicate their difficulties anew. A similar situation happened in the state of Tamil Nadu, where marriage counsellors changed every three months.
- Because the family court follows the Code of Civil Procedure principles in suits and proceedings, it is difficult for the average person to comprehend the complicated law. There are no simple rules in the act that a layperson can understand.
- The act also prohibits the appearance of lawyers in a family court complaint or case, which makes it difficult for the average person to understand the court’s procedure and formalities. In such circumstances, the parties to a lawsuit must rely on the court’s clerks and peons.
Before 1984, ordinary civil court judges heard all the family matters, who took a long time to decide for the parties. The Family Courts Act was passed and became effective in 1984.
The act’s primary goal was to remove family and marital conflicts from overloaded and traditional courts of law and place them in a simple court where a layperson could comprehend the proceedings.
The act’s principal goal was to use a conciliatory approach to encourage the parties to reach an agreement and provide them with prompt relief. These objectives, however, were not met. The conclusion has now been reached that the quick fix is a myth. The family courts must take several proper actions to ensure that they run smoothly.
When was The Family Court Act passed?
Which section defines the establishment of family courts?
Which section defines the appointment of judges?
Which section states, Jurisdiction of family court?
Which section describes the procedure of family courts?