To facilitate conciliation and speedy trial in family matters and related disputes, family court act was passed in 1984. However, the said act did not come in force after its passing, but it gave the power to the government to enforce the act vide notification and from that time many states established family courts in their cities.
How many states established family courts?
Following states has been enforced the family courts act, 1984 as far now-
- Union territory of Andaman and Nicobar Islands on 19th November, 1986,
- Madhya Pradesh on 19thNovember, 1986,
- Uttar Pradesh on 2ndOctober, 1986,
- Delhi on 19th November, 1986,
- Maharashtra on 1stDecember, 1986,
- Karnataka on 25thMay, 1987,
- Orissa on 1st May, 1989,
- Kerala on 21st October, 1989,
- Goa on 16thApril, 1990,
- Union territory of Pondicherry on 1st May, 1987,
- West Bengal on 1stNovember, 1991,
- Assam on 2nd October, 1991,
- Bihar on 10th December, 1991,
- Manipur on 3rdFebruary, 1992,
- Haryana on 2ndNovember, 1992,
- Andhra Pradesh on 15thFebruary, 1995,
- Gujarat on 1stJanuary, 2000,
- Union territory of Daman and Diu on 10th October, 2003.
Procedure for establishment of Family Courts
To establish a Family Court, State Government in consultation with the High Court shall establish family courts for every area in the state comprising of city or town whose population exceeds one million.
After establishment, state government may further increase, reduce or alter limits of local area to which jurisdiction of a family court extends.
Appointment of Judges for Family Courts
State Government has power for the appointment of judges after concurrence of High Court.
A person shall be qualified for appointment as a judge, if he-
- has for at least seven years held a judicial office in India or the office of a Member of a Tribunal or any post under the Union or a State requiring special knowledge of law; or
- has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or
- possesses such other qualifications as the Central Government may, with the concurrence of the Chief Justice of India, prescribe.
A person may have any one of above qualification to be appoint as a judge.
Above are not exclusive qualifications to be the judge of family court, there are some further abilities which state government will keep in mind while appointing a judge-
In selecting persons for appointment as Judges, —
- every endeavour 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; and
- preference shall be given to women.
Term of the judges
Term of judges of family courts is sixty-two years.
Role and Association of social welfare agencies
One of the remarkable feature of family courts act, is that, it direct to associated social welfare agencies to family courts.
State government in consultation with the High Court may associate with a family court-
- institutions or organisations engaged in social welfare or the representatives thereof;
- persons professionally engaged in promoting the welfare of the family;
- persons working in the field of social welfare; and
- 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.
Jurisdiction of Family Court
A family court shall exercise the all jurisdiction, exercisable by any district court or any subordinate civil court.
Matters which comes under the jurisdiction of family Court
- a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
- a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
- suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
- a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
- a suit or proceeding for a declaration as to the legitimacy of any person;
- a suit or proceeding for maintenance;
- the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974);
- a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
Exclusion of jurisdiction and pending proceedings
After the establishment of family court in any area, district court shall not have power to try the cases which comes under the jurisdiction of family courts.
And any proceeding which is going on in district court shall be stand transferred in family courts.
Duty of Family Court to make efforts for settlement.
At first instance, Family courts shall make efforts to assist and persuade the parties in arriving at a settlement where it is possible to do so.
And at any stage of suit or proceeding if it appears to family courts there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
The rules of civil procedure shall apply to the suits and proceedings of Family courts but if courts consider it appropriate, it may also lay down its own procedure to arrive at a settlement in family matters.
Some special features of Family courts act
- In family courts, proceedings shall be held in camera if court or either party desires to do so.
- 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.
- No party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. But if Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.
- Although Indian Evidence Act may be applied in the proceeding of family court but Family courts are not bound with its rules. Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same admissible under the Indian Evidence Act, 1872.
- 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.
Appeal
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. (Generally, appeal lied on law) and such appeal shall be heard by the bench of two or more judges.
But if any decision has passed after the consent of parties, no appeal shall lie in such cases.
Every appeal shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
Except above appeal, no appeal or revision shall lie to any court.
Power of High Courts to make rules
The act give power to High Court to make rules in following matters-
- normal working hours of Family Courts and holding of sittings of Family Courts on holidays and outside normal working hours;
- holding of sittings of Family Courts at places other than their ordinary places of sitting;
- efforts which may be made by, and the procedure which may be followed by, a Family Court for assisting and persuading parties to arrive at a settlement.
Conclusion
Thus, the concept of family court implies an integrated broad based service to families in trouble. It stipulates that the family court structure should be such as is meant to preserve the family, and to help to stabilise the marriage. Obviously, for such a system, the adversary litigation system is hardly appropriate. Such a system visualizes the assistance of the specialised persons and agencies.