192

Chapter - IV

THE ROLE OF THE FAMILY COURTS IN INDIA

193

History of the Family Courts:

Although the ancestor of family court was really child or juvenile court,
the framers of family court probably could not have understood it. It had
become a tribunal for every family related dispute as it exists today. 1

The concept actually arose in the late nineteenth century. The first
separate juvenile court was established in Chicago, Massachusetts, Rhode
Island and Indiana were under the auspices of the common law doctrine to
try for children. Since this time the seeds of parents patria, or protection for
children against themselves or their parents began. With the common law
system, the law is made not by legislators but by the courts and the judges. It
is often referred to as the unwritten law. In substance, common law lies in
the published court decisions. This offered judges within this system wide
discretion to shape the family law.2
Justice Potter Stewart stated in the case of Parham v. J.R. (1979)3,
issues involving the family are the most difficult that the courts have to face.
Hence, it is no surprise that family law cases are some of the most disputable
1

. History of Family Court, by Effie Belou, downloaded from the website of

www.parentsinaction.et/english/familycourt/Hinstory of Family Court.htm. page-1, dt.2-8-2013.
2
. History of Family Court, by Effie Belou, downloaded from the website of
www.parentsinaction.et/english/familycourt/Hinstory of Family Court.htm. page-1, dt.2-8-2013.
3
. Article History of Family Court by Effie Belou, downloaded from the website of
www.parentsinaction.et/english/familycourt/Hinstory of Family Court.htm. page-1,

194

and the cases actually places State and federal regulations against disputes
brought by father, mother, husbands, wives and children. Consequently, some
intricate legal doctrines have arisen trying to define the responsibilities of the
family.

Under nineteenth century federalism, the States had primary

responsibility for family laws, including marriage, divorce, childrearing and

inheritance. In Maynard v. Hill4 the Supreme Court stated that State had
jurisdiction over the family endorsing State regulation of the family.
In Myer v. Nebraska5, the first federal judicial involvement began
under the guise of parents rights, which affirmed the right of parents to
choose a curriculum. This was further affirmed in the case of Pierce v.
Society of Sister6. The Supreme Court upheld the right of parent to direct his
or her childs education endorsing parental authority as absolute and
constitutionally protected in choosing which school was appropriated for their
child. In prince v. Mass7, the court broadened this ruling by declaring that
family life could not be disturbed by intervention of the State without
substantial justification.

. 125 US. 190, (18880. cf: History of Family Court, by Effie Belou, downloaded from the website of
www.parentsinaction.et/english/familycourt/Hinstory of Family Court.htm. page-1, dt.2-8-2013.
5
. 262 US. 390, (1923), Ibid.
6
. 268 US. 510, (1925). Ibid.
7
. 321 US. 158, (1944)

195

In Stachokus v. Meyers8, Ms. Meyers was ten weeks pregnancy at the

time of end of their relationship and she wished to terminate it. Mr. Stachokus
who did not want the pregnancy terminated was granted a temporary
injunction against Ms. Meyers. The injunction was quickly withdrawn and
Ms. Meyers was granted relief to obtain an abortion. Increasing divorce,
women entering the workforce, the fright to use birth control and abortion was
influencing decisions.

Further, alternative family arrangements through

homosexuality, surrogacy and foster homes further complicated family courts.

Subsequently the family fell under more courts scrutiny and spurred the
creation of more extensive family law9.

The superior Family Court has undergone a number of necessary

changes in order to meet the unique and pressing needs of families in need and
children in crisis.10

Family courts were established several decades ago in the Countries

like Britain, Japan, Australia, China etc.

. it was referred in the article of History of Family Court, by Effie Belou, downloaded from the
website of www.parentsinaction.et/english/familycourt/Hinstory of Family Court.htm. page-1, dt.2-82013
9
. History of Family Court, by Effie Belou, downloaded from the website of
www.parentsinaction.et/english/familycourt/Hinstory of Family Court.htm. page-2, dt.2-8-2013.
10
. Superior Court of Justice, Family Court History, downloaded from
www.ontariocourts.ca/scj./3n/famct/history.htm, dt.2.8.2013.

196

Origin to establish the Family Courts in India:

The need to establish the family courts was first emphasized in India
by the late Smt. Durgabai Deshmukh, after a tour of China in 1953, where she
had an occasion to study the working of family courts. She discussed the
subject with certain judges and legal experts and then made a proposal to set
up family courts in India to Prime Minister Jawaharlal Nehru.11

Another reason for setting up of family courts was the mounting

pressures from several womens associations, welfare organizations and
individuals for establishment of such courts with a view to provide a forum for
speedy settlement of family related disputes. Importance was laid on a nonadversarial method of resolving family disputes and promoting conciliation
and securing speedy settlement of disputes relating to marriage and family
affairs.

The matrimonial litigation is a traumatic experience in the lives of

parents and their children. Apart from emotional problems, it creates many
legal, social and practical complications. It is unfortunate; however, that
generally the only way available to parties to obtain relief from an unhappy

11

. Article of Family Courts in India: An Overview, downloaded from the website of

http://www.legalserviceindia.com/article/1356.

197

and intolerable relationship is by subjecting themselves and their spouses to

the hazards of ordinary court procedures.12

In India the Hindu Marriage Act, 1955 was passed, till date, several
amendments have been made to liberalize the grounds for divorce; coupled
with that, the Courts have also so construed and applied the provisions as to
provide maximum relief with least hardship to any of the parties. The same is
true in regard to other personal law statutes governing Christians, Parsis and
Muslims as well13.

Thereafter, the Law Commission, in its report, as early as 1973 (Fifty

Fourth Report on the Code of Civil Procedure), strongly recommended the
need for special handling of matters pertaining to divorce.14

Subsequently several associations of women, other organizations and

individuals have urged, from time to time, that the family courts be set up for
the settlement of family disputes, where emphasis should be laid on
conciliation and achieving socially desirable results and adherence to rigid
rules of procedure and evidence should be eliminated. The Law Commission

12

. Report on Working of Family Courts and Model Family Courts, held on 20.3.2002 by National
Commission for women, New Delhi, downloaded from the website of ncw.nic.in/ dt.8.2.2013.
13
. Ibid, page No.2
14
. Marriage Laws & Family Courts Act, by E.L. Bhagiratha Raos, 10 th edn., 2013, Asian Law
House, Hyderabad.

198

in its 59th report in 1974 had also stressed that in dealing with disputes
concerning the family the court ought to adopt an approach radically different
from that adopted in ordinary civil proceedings and that it should make
reasonable efforts for settlement before the commencement of trial.15
Consequent to these recommendations, Order XXXII-A16 was
incorporated in the Code of Civil Procedure in the year, 1976. This order
seeks to highlight the need for adopting a different approach where matters
concerning the family are at issue, including the need for efforts to bring about
an amicable settlement. 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. The need was, therefore, felt, in the public
interest, to establish family courts for speedy settlement of family disputes. 17

After a lot of debate and discussion, the Family Courts Act came into
force on 14.9.1984. The whole idea behind the Act is to ensure speedy and
inexpensive relief with least formality and technicalities.18

15

. Report on Working of Family Courts and Model Family Courts, held on 20.3.2002 by National
Commission for women, New Delhi, downloaded from the website of ncw.nic.in/ dt.8.2.2013.
16
. Suits relating to matters concerning the family.
17
. Marriage Laws by E.L. Bhagiratha Rao, 10 th edn, p-397, 2013, published by Asia Law House,
Hyderabad,
18
. Report on Working of Family Courts and Model Family Courts, held on 20.3.2002 by National
Commission for women, New Delhi, downloaded from the website of ncw.nic.in/ dt.8.2.2013.

199

In India first and foremost the family court was established in the State
of Rajastan on 19.11.1985.19 In Andhra Pradesh the family court started it
functions on 15.2.199520.

The Parliamentary Committee on empowerment of women has

recommended that the family courts may be set up in every district. All the
State Governments have been requested to set up family courts in all districts.
However there are only 212 family courts across the country.21
The Family Courts Act, 1984 however does not define family.
Matters of serious economic consequences, which effect 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.22
The words disputes relating to marriage and family affairs and for
matters connected therewith must be given a broad construction. To read the

19

. Act enforced on 19.11.1985 (vide Not. No.79/17/85, dt.18.11.1985.

. Under Notification No. S.O. 92 (E), dt.6.2.1995.
21
. Judicial statistics, Department of Justice, Ministry of Law and Justice, down loaded from the
website of doj.gov.in/?q=node/105, dt. 1.2.2013.
22
. Report on Working of Family Courts and Model Family Courts, held on 20.3.2002 by National
Commission for women, New Delhi, p-1, downloaded from the website of ncw.nic.in/ dt.8.2.2013.
20

200

words a suit or proceedings between the parties to a marriage to mean

parties to a subsisting marriage would lead to miscarriage of justice23.

The object for establishment of family courts is to promote conciliation

and secure speedy settlement of disputes relating to marriage and family
affairs and for matters connected therewith24.
In Abdul Jaleel v. Shahida,25 the Supreme Court held that the Family
Courts Act, 1984 was enacted to provide for the establishments of family
courts with a view to promote conciliation in and secure speedy settlement of
dispute relating to marriage and family affairs and for matters connected
therewith by adopting an approach radically different from that adopted in
ordinary civil proceedings.

Matters relating to maintenance allowance to wives, children and

parents are provided under Sec.125 of the Code of Criminal Procedure, 1973.
After enactment of the Family Courts Act, 1984, a proceeding for
maintenance falls within the jurisdiction of the family courts at the places
where such courts have been established. At other places, the magistrate of
the area exercises the jurisdiction in such matters.
23

. Abdul Jaleel v. Shahida, AIR 2003 SC 2525.

. Family Courts Act, 1984 by Saibaba Itapu,1 st edn, 2009, P-99, Published by Sharma Law House,
Hyderabad.
25
. AIR 2003 SC 2525 = 2003 (4) SCC 166.
24

201

The family courts are specialized as civil courts, which deal

exclusively with dissolution of marriage; declaration of the matrimonial status
of any person; declaration of ownership of properties of the parties concerned;
interim order of injunction arising out of marital relationships; declaration of
legitimacy of any person, or guardianship of a person, or the custody or access
of any minor and suits for maintenance.

The Family Courts Act, 1984 was part of the trends of legal reforms
concerning women. The Act was expected to facilitate satisfactory resolution
of disputes concerning the family through a forum expected to work
expeditiously in a just manner and with an approach ensuring maximum
welfare of society and dignity of women. Prevalence of gender biased laws
and oppressive social practices over centuries have denied justice and basic
human rights to Indian women26.

The State Government after consultation with the High Court and by
notification establishes family court for every area in the State comprising a

26

. Article Family Court in India: An Overview, downloaded from the website of

http://www.legalserviceindia.com/article/1356--familycourts-in India, dt.12.7.2009.

202

city or town whose population exceeds one million27 and may establish family
courts for such other areas in the State as it may deem necessary28.

The State Government shall after consultation with the High Court,
specify, by notification, the local limits of the area to which the jurisdiction of
a family court shall extend and may, at any time, increase, reduce or alter,
such limits29.

The place of the family court need not be permanent. It can be shifted
from one place to yet another place within the area30.

The State Government may, with the concurrence of the High Court,
appoint one or more persons to be the judge or judges of a family court31.

When a family court consists of more than one judge, each of the
judges may exercise all or any of the powers conferred on the court by this
Act for the time being in force32.

The State Government may with the

concurrence of the High Court appoint any of the judges to be the principal

27

. Section 3 (1) (a) of Family Courts Act, 1984.

. Section 3 (1) (b) of the Family Courts Act, 1984.
29
. Section 3 (2) of the Family Courts Act, 1984.
30
. Gangadharam v. State of Kerala, AIR 2006 SC 2360.
31
. Section 4 (1) of the Family Courts Act, 1984.
32
. Section 4 (2) (a) of the Family Courts Act, 1984.
28

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judge and any other judge to be the additional Principal Judge33. The principal
judge may, from time to time, make arrangements as he may deem fit for the
distribution of the business of the court among the various judges34. The
additional principal judge may exercise the powers of the principal judge in
the event of any vacancy in the office of principal judge or the principal judge
goes on leave35.

For appointment as judges, the persons should have seven years

experience in judicial office or the office of a member of a tribunal or any post
under the Union or a State requiring special knowledge of law36, or persons
should have seven years experience as an advocate of a High Court or of two
or more such courts in succession37.

The Central Government with the concurrence of the Chief Justice of

India may prescribe some other qualifications38 and also made rules for other
qualifications for appointment of a judge of the family court.39

33

.
.
35
.
36
.
37
.
38
.
39
.
34

Section 4 (2) (b) of the Family Courts Act, 1984.

Section 4 (2) (c) of the Family Courts Act, 1984.
Section 4 (2) (d) of the Family Courts Act, 1984.
Section 4 (3) (a) of the Family Courts Act, 1984.
Section 4 (3) (b) of the Family Courts Act, 1984.
Section 4 (3) (c) of the Family Courts Act, 1984.
Rule 2 of Family Courts (Other qualifications for appointment of judges) Rules, 1984.

204

As per Rule 2 of Family Courts (Other qualifications for

appointment of judges) Rules, 1984, Other qualifications for appointment of
family court judges are prescribed. They are:
i) A person shall have possessed a Post-graduate in Law with specialization in
Personal Laws; or a Post-graduate degree in Social Sciences such as Master of
Social Welfare, Sociology, Psychology or Philosophy with a degree in Law;40
and
ii) A person shall have at least seven years experience in field work, research
or of teaching in a Government or in a College/University or a comparable
academic institute, with special reference to problems of women and children;
or a person shall have seven years experience in the examination and/or
application of Central/State Laws relating to marriage, divorce, maintenance,
guardianship, adoption and other family disputes41.

In India some High Courts are exercising their powers for

appointment of judges to the family courts as per Rule 2 of the Family Courts
Rules, 1984, but the other High Courts are not following the same. It is a
draw back to the family courts for disposing the cases properly and quickly by
way of proper conciliation.

40
41

. Rule 2 (i) of Family Courts (other qualifications for appointment of judges) Rules, 1984.
. Rule 2 (ii) of Family Courts (other qualifications for appointment of judges) Rules, 1984.

205

The judges who are appointed to the family courts should be committed
to achieve the object of the Act. They have to protect and preserve the
institution of marriage and to promote the settlement of disputes by
conciliation and counseling42.
Sub-section (4) of Section (4) of the Act specially says that women
shall be appointed as a judge. But still March, 2009 out of 84 judges, in all the
84 courts there were only 18 women were appointed as judges.

Except prescribing the qualifications of judges the Central Government

has no role to play in the administration of justice. Different States have
different procedure. So there is need to have uniform set of rules in all over
India to achieve the object of the Act.

Though the Act laid down broad guidelines, it was left to the State
Government to frame the rules of procedure. Still there are some states not
yet established courts nor rules.

42

. Section 4 (4) (a) of the Family Courts Act, 1984.

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A person shall be continued in service as a judge of a family court

until he attains the age of sixty-two years43 and their salary or honorarium and
other allowances from time to time payable and the other terms and conditions
of family court judge are prescribed by the State Government in consultation
with the High Court44.
The State Government may in consultation with the High Court
provide rules for the association of social welfare agencies etc., in such
manner and for such purposes some conditions specified in the rules, with a
family court of:
(i)

institutions or organizations engaged in Social Welfare or the

representatives thereof45;

(ii)

persons professionally engaged in promoting the welfare of the

family46;

(iii)

persons working in the field of social welfare47; and

(iv)

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 Act48.

43

. Section 4 (5) of the Family Courts Act, 1984.

. Section 4 (6) of the Family Courts Act, 1984.
45
. Section 5 (a) of the Family Courts Act, 1984.
46
. Section 5 (b) of the Family Courts Act, 1984.
47
Section 5 (c) of the Family Courts Act, 1984.
48
Section 5 (d) of the Family Courts Act, 1984.
44

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The State Government in consultation with the High Court:

(1) determine the number and categories of counselors, officers and other
employees required to assist a family court in discharge of its functions and
provide them to assist the family courts49 and
(2) make rules regarding the terms and conditions of association of the
counselors and the terms and conditions of service of the officers and other
employees50.

Role of the counselors in the family courts is very important. Fifty

percent of the cases can be solved by way of proper counseling. The process
of selection of the counselors is significant for delivery of justice. So far as
the judges are concerned, they can also participate in counseling at the second
stage. At the first stage the cases are sent to the counselors for counseling. In
many cases where at the initial stage the counseling has failed, proactive role
of the judge has helped in resolving the dispute51.

Counseling and conciliation are the two pillars on which the whole
structure of family courts is built. Counseling, in fact, is the foundation on
which the philosophy of conciliated settlement rests.
49

The role of the

. Section 6 (1) of the Family Courts Act, 1984.

. Section 6 (2) of the Family Courts Act, 1984.
51
. Report of the Workshop held on 20.3.2002 by National Commission for women, downloaded
from the website of www.ncw.nic.in/......
50

208

counselors is not limited to counseling but extends to reconciliation and

mutual settlement wherever deemed feasible. Most of the cases filed before
the family courts can be resolved by way of proper counseling52.

The Counselor shall fix time and date of appointment and inform the
same to the parties for their appearance. If either of the parties fails to attend
on that date the counselor may fix another date and communicate the same to
the concerned by registered post. In case of default by either of the parties on
the adjourned date, the counselor shall submit a report to the court and then
the court will take action against the defaulting parties. On appearance of
parties the counselor made efforts to settle the dispute by way of conciliation.
The counselor may in discharge of his duties visit the home of either of the
parties and interview the relatives, friends and acquaintances of either of the
parties53.

The counselor may take the assistance of any organization, institution

or agency in discharge of his duties. The counselor shall submit his report to
the Court as and when called for to assist the court in deciding the case on
hand. The report of the counselor all points about living environment of the

52

. Article written by Namita Singh Jamwal on the topic of family dispute conciliation, dt.12.7.2009,
down loaded from the website of www.mainstreamweekly.net/article 1205.html, p-1.
53
. Rule 18 H.C. of A.P. Family Courts Rules, 2005.

209

parties concerned, personalities, relationship, income and standard of living,

educational status of the parties, status in society and counselors finding54.

The marriage counselor shall be used the powers against the women in
the interest of the family since it is imbibed into the minds of such counselors
and their primary commitment is to preserve the institution of marriage. The
report of the marriage counselor is kept confidential, and not made a subject of
cross-examination55.

Jurisdiction:
All family courts shall have the power and jurisdiction exercisable by
any District Court or any subordinate civil court in suits and proceedings of
the nature dealt with explanation to Section 7 (1) of the Act.
Following are the matters which can be filed in the Family Courts:1. Decree for nullity of marriage.
2. Restitution of conjugal rights.
3. Judicial separation.
4. Dissolution of marriage.
5. Declaration of matrimonial status of any person.
6. Matrimonial property matters.
54
55

. Rule 18 H.C. of A.P. Family Courts (Court) Rules, 2005.

. Rule 20 HC., of A.P. Family Courts (Court) Rules, 2005.

210

7. Claim of maintenance.
8. Guardianship.
9. Custody of children.
10. Access of children.
11. Application for injunction in matrimonial matters.
12. Custody of children, guardianship, legitimacy of child under the Hindu
Minority and Guardianship Act, 1956.

Thus the family court entertain the applications for grant of decree of
divorce under the various Acts like Dissolution of Muslim Marriage Act,
1939, Muslim Women (Protection of Rights on Divorce) Act, 1986, the Parsi
Marriage and Divorce Act, 1936, the Divorce Act, 1869, the Special Marriage
Act, 1954, Foreign Marriage Act, 1969 etc.56

Validity of marriages under Hindu Marriages (validation of

proceedings) Act, 1960, the Muslim Personal Law (Shariat) Application Act,
1937, Child Marriage Restraint Act, 1929, Anand Marriage Act, 1909, Arya
Marriage Validation Act, 1937, Marriages Validating Act, 1952.57

56
57

. Rule 5 (d) of H.C. of A.P. Family Courts (Court) Rules, 2005.

. Ibid.

211

If any dispute to a marriage between the parties arises irrespective of

their caste or creed and validity of a marriage the family court has got
jurisdiction58.

The property dispute between the parties to a marriage the family court
can entertain the petition.59

The family court entertain suit for partition of the property between
parties to a marriage60.

A suit filed by wife for return of gold ornaments, cash etc., given at the
time of marriage even after death of husband being one arising out of marital
relationship though not between parties to marriage61.

The family court can also pass orders or injunctions in circumstances

arising out of a marital relationship.62

The family court has got jurisdiction to declare of any person as to the
legitimacy63.

58

. Reddy Ananda Rao vs. Ms. Totavani Sujatha, AIR 2003, NOC 258 AP.
. Explanation (c) in Section 7 (1) of the Family Courts Act., 1984.
60
. Mrs. Mariamma Ninan v. K.K. Ninan, I (1997) DMC (AP) 570.
61
. Suprabha v. Sivaraman, AIR 2006 Ker. 187.
62
. Explanation (d) in Section 7 (1) of the Family Courts Act, 1984.
63
. Explanation (e) in Section 7 (1) of the Family Courts Act, 1984.
59

212

A declaratory suit regarding legitimacy of a person would fall within

the jurisdiction of Family Court64.

The family court has also entertains the application for granting
maintenance under the Hindu Adoptions and Maintenance Act, 195665.

The family court has jurisdiction to give the custody of the child to a
proper person and also to appoint a proper person as guardian to the minor
children.66

The family court has power to entertain the application under the
Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act,
195667.

In addition to that, the family court shall have jurisdiction exercisable

by a First Class Magistrate under Chapter IX of the Criminal Procedure Code
i.e., relating to order for maintenance of wife, children or parents, has also
been conferred on the family courts68. There is also an enabling provision that
the family courts may exercise such other jurisdiction as may be conferred on

64

.
.
66
.
67
.
68
.
65

Renubala Moharana v. Mina Mohanty,AIR 2004 SC 3500.

Rule 5 (d) of H.C. of A.P. Family Courts (Court) Rules, 2005.
Explanation (g) in Section 7 (1) of the Family Courts Act, 1984.
Rule 5 (d) of H.C. of A.P. Family Courts (Court) Rules, 2005.
Section 7 (2) (a) of the Family Courts Act 1984.

213

them by any other enactment69. In this connection the family court exercises
its power to grant maintenance under Sec.125 of Criminal procedure Code70.

The Family Court has no jurisdiction to entertain the applications in

certain circumstances. The following cases are some examples.
1. A suit for declaration regarding the illegitimacy of the child cannot be
entertained71.
2. In Ranjeet Chobra v. Savita Chobra72, it was held that a dispute relating to
appointment of Guardian of minors property has come under the jurisdiction
of the Civil Court.
3. The family court cannot entertain the suit of a minors property. 73
4. The proceedings under Muslim Women (Protection of Rights on Divorce)
Act, 1986, a Muslim woman can apply under Sections 3 and 4 of the said Act
for maintenance only to Magistrate of the First Class74.
5. The suit involving a dispute between the brothers, sisters, mothers, fathers
etc. concerning property.75
6. The suit for declaration that the father should provide necessary funds for
his daughters marriage.76
69

. Section 7 (2) (b) of the Family Courts Act 1984.

. Rule 5 (d) of H.C. of A.P. Family Courts (Court) Rules, 2005.
71
. Renubala Maharana vs. Mina Mohanty, AIR 2004, SC.3500.
72
. 1991 (2) Civil L.J. 483.
73
. Kamal V.M. Allauddin v. Raja Shaikh AIR 1990 Bom. 299.
74
. Karim Abdul Rehaman Shaikh v. Shehnaz Karim Shaikh, 2001 (1) ALD (Crl.) 145 (Bom) (FB).
75
. P. Srihari v. P. Sukunda, II (2001) DMC (AP) 135.
70

214

7. Prior to the establishment of the family court, if there was an order already
passed by the Civil Court under Hindu Marriage Act, 1955 and any further
alteration in that regard is intended it must be made by the Civil Court itself.77
8. The ambit and scope of the proceedings of a suit for partition and allotment
of shares was completely outside jurisdiction of Family Court78.
9. The suit relating to joint family property in which the parties other than the
spouses are sharers cannot be taken as a suit arising out of matrimonial
relationship79.

Provision has also made to exclude the jurisdiction of other courts in

respect of matters for which the Family Court has been conferred jurisdiction.

According to Section 8, after the establishment of the family court, the

District Court or any sub-ordinate Civil Court have no jurisdiction to entertain
any civil or criminal matters.

Similarly if the Family Court established in any area, the magistrate in

that area has no jurisdiction or power to entertain maintenance proceedings
under section 125 of the Criminal Procedure Code, 1973. If any cases are

76

. 1995 AIHC 617 (Ker).

. P. Madhavan Nair v. K. Ravindran Unni, AIR 1993 Karn. 203.
78
. Mohammed Isaq v. Meharunnisa, I (1998) DMC (Kant.) 20.
79
. Manita Khurana v. Indra Khurana, AIR 2010 Del. 69.
77

215

pending before the Magistrate Court, all such cases shall be transferred to
family court immediately after establishment of family court in that area80.

Except Family Court, no Court shall have jurisdiction to entertain

both civil and criminal proceedings with regard to maintenance81.

Chapter IV of the Family Courts Act deals with the procedure of the
family courts in deciding cases before it82.

A duty has been imposed on the family courts to see that the parties are
assisted and persuaded to come to 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 it83.

The role of family courts in settling the matters between the parties
speedily by following the rules made by High Courts in India.

Under the provisions, different High Courts have different rules of

procedure for the determination and settlement of disputes by the family
courts.

80

. Section 8 (c ) (i) and (ii) of the Family Courts Act, 1984

. Abdul Rashid Khan v. Musta Firan Bibi,AIR 2006 Ori. 186.
82
. Section 9 of the Family Courts Act, 1984.
83
. Section 9 (1) of the Family Courts Act, 1984.
81

216

In the proceedings at any stage, there is a reasonable possibility of

settlement between the parties; the family court has empowered to adjourn the
proceedings until the settlement is reached 84.
In Gurubachan Kaur vs. Preetam Singh,85 the Division Bench of
Allahabad High Court held that a duty has been imposed under Sec.9 of the
Family Courts Act to make all possible endeavour which is at para material
with Order XXXIII86 of CPC. The Court must express its concern that the
Family Courts should work in a spirit of dedication to settle the matter by
negotiation and all possible methods of persuasion so that the marriage may be
preserved. The Court expresses its concern that it should not turn into an
ordinary Civil Court as seen by while sitting in this jurisdiction and dispose of
the matter as expeditiously as possible and adjournments should be restricted.

While applying the provisions of the Code of Civil Procedure, 1908 in

a suit or proceeding before the family court, the family court shall be deemed
to be a civil court and shall have the powers of such court. 87 While applying

84

.
.
86
.
87
.
85

Section 9 (2) of the Family Courts Act, 1984.

AIR 1998, All. 140.
Suit may be instituted by indigent persons.
Section 10 (1) of the Family Courts Act, 1984.

217

the provisions of the Code of Criminal Procedure, 1973, it shall apply to the
proceedings under Chapter IX of that Code before a family court88.

Moreover, the family court laying down its own procedure with a view
to arrive at a settlement in respect of subject mater of the suit or proceedings
or at the truth of the facts alleged by the one party and denied by the other89.

The Family Court while dealing with the petition preferred under S.125
of the Criminal Procedure Code is bound to follow the procedure prescribed in
Section 126 thereof90.
The Courts duty is even to put questions to elicit truth and should
show dynamic approach towards the achievement of the ends of justice91.

Matters to be disposed off expeditiously and adjournments be

restricted92.

The proceedings may be held in camera if the family court so desires

and shall be so held if either party so desires93.

88

. Section 10 (2) of the Family Courts Act, 1984.

. Section 10 (3) of the Family Courts Act, 1984.
90
. Gayithri v. Ramesh, II (1993) DMC (Raj.) 121.
91
. Velpat Grama Panchayat vs. Asst. Marketing Director, Guntur, AIR 1998, All. 148 at p.144.
92
. D.S.N.V. Prasad Babu vs. Union of India, AIR 1998, All 140 at P.144.
93
. Section 11 of the Family Courts Act, 1984.
89

218

At the time of recording evidence usually a suffered wife cannot say the
real story in the presence of other litigants and legal practitioners at the courthall due to humiliation and fear as it is her private family matter. In those
circumstances, on the request of parties, the judge of the Family Court shall
record the evidence after closing the doors of the court-hall by sending out the
advocates and other litigants.

The family court has power 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, for the purpose of assisting the family court in
discharging the functions imposed by this Act94.

The Family Court also has power to summon the medical experts to
record their evidence relating to the subject matter of the cases.

To exercise inherent powers may direct medical examination of a party

to a matrimonial proceeding in appropriate cases95.

Section 13 of the Act provides that the party in a suit or proceedings

before a family court has no right to engage an advocate to represent on his
94
95

. Section 12 of the Family Courts Act, 1984.

. Lalit Kishore v. Meeru Sharma & anr., AIR 2010 SC 1240.

219

behalf. However, the court can seek help or assistance of legal expert as
amicus curiae (a friend of the court).

The Act and rules excluded the participation of lawyers without making
any alternative rules. Litigants are left to the mercy of court clerks to help
them. It appears the litigants of their constitutional rights by not allowing the
party to engage lawyer of his/her choice.

However, the court shall allow a legal practitioner on either side to

appear only as amicus curiae, if it finds necessary in the interest of justice.
Thus the court has a discretionary power to allow advocate or not to represent
on behalf of a party.

To grant permission to a party to be represented by a legal practitioner

the court shall maintain a panel of legal experts as amicus curiae consisting
five members out of legal experts and also from the retired judges of local
area, who have expertise in the field. The amicus curiae shall be paid a fee by
the State Governments in a case which may be determined by the court not
exceeding Rs.500/- per day96.

96

. Rule 16 explanation (2) H.C. of A.P. Family Courts (Court) Rules, 2005.

220

Where a party has no means to engage an advocate shall be entitled to

free legal aid and advice from the State Legal Services Authority in
accordance with the rules made there under by the State97.

For that Family Court shall maintain a panel of lawyers willing to

render free legal aid and advice and the Court select any of the lawyers from
the said panel to the poor persons to attend their cases98.

In every court a legal practitioner has a right to appear on behalf of his

client, the said right cannot be claimed before the family court, it is totally left
to the discretion of the Family Court to allow any Counsel on behalf of the
client and give necessary legal assistance. So, if any of the parties before the
Family Court filed a memo or petition seeking permission of the Court for him
or her to engage a counsel and have legal assistance, the Family Court, may or
may not allow the petition. When so allowed, the Counsel of a party could
file the Vakalat and do all that is necessary for the client in conduction the
case99.

97

. Rule 16 explanation (3) H.C. of A.P. Family Courts (Court) Rules, 2005.
. Rule 16 explanation (4) H.C. of A.P. Family Courts (Court) Rules, 2005.
99
. S. Venkataraman v. L. Vijayasarathan (1997) 1 DMC 507 (Mad).
98

221

If one side has been permitted to be represented by a legal practitioner,

the Family Court should not refuse permission to the other side to be
represented by a legal practitioner100.
In Gurubachan Kaur Vs. Preetam Singh101, the Division Bench of
Allahabad High Court held that Family Courts if grant opportunity to the
parties to be presented by lawyers and it comes to the conclusion that some
obstruction is being caused by non-availability of lawyers or otherwise. If
some problems come to its notice, the Family Courts can immediately cancel
the Vakalatnama, and obey the mandate of legislature rather than
prolonging the agony and waiting period of matrimonial disputes. The time
spent cannot be regained or recalled and youth cannot be restored. So the
Court should also keep in mind also the settlement of the parties by
negotiation.

Like other courts, the family court may receive as evidence any report,
statement, documents, information or matter for its opinion and assist it to deal
effectually with a dispute, whether or not the same would be otherwise
relevant or admissible under the Indian Evidence Act, 1872102.

100

. Komal S. Padukone v. Principal Judge, Family Court, Bangalore, AIR 1999 Kant. 427.
. AIR 1998, All. 140.
102
. Section 14 of the Family Courts Act, 1984.
101

222

In Manohar Lal Agrawal v. Santosh & Ors.103, the High Court held that
it is open to the Judge of a Family Court to call a witness, including grown up
children to understand the nature of the dispute and to reconcile the parties. It
is not proper for the Judge of the Family Court to leave every filing in the
hands of the parties who are not conversant with the procedure of the Court.
In Narayana Roy v. Jamuna Dey (Roy)104, it was held that the rigor of
the evidence Act is not applicable in reception of evidence by family court.

There is no necessity to record the evidence of witnesses at length in

the family court but the judge shall record the evidence of witnesses concisely
only subject matter of the proceedings and it shall be signed by the witness
and the judge105.

Like civil courts, in the family court the evidence of any person may be
accepted by way of affidavit106. On the application of any of the parties to the
suit or proceeding, the family court has power to summon and examine any
person as to the facts contained in his affidavit107.

103

. II (1993) DMC (Raj.) 202.

. AIR 2010 Gau. 75.
105
. Section 15 of the Family Courts Act, 1984.
106
. Section 16 (1) of the Family Courts Act, 1984.
107
. Section 16 (2) of the Family Courts Act, 1984.
104

223

The judgment of the family court shall contain a concise statement of

the case, the point for determination, the decision thereon and the reasons for
such decision108.

Usually the legal practitioners filed applications, counters, affidavits

and written arguments before the family courts with unnecessary contents, in
that circumstances, the judge of the family court shall prepare orders or
judgment concisely with important points, which are directly relating to the
case facts and section of law under which the application is filed.

The Act also brought civil and criminal jurisdiction under one roof.
The family court passed orders under the civil procedure shall be executed the
same manner as is prescribed by the Code of Civil procedure 109. If the family
court passed orders under Chapter IX of the Code of Criminal procedure, shall
be executed in the manner prescribed for execution of such order by that
code110.
A decree or order may be executed either by the family court which
passed it or by the other family court or ordinary civil court to which it is sent
for execution111.

108

.
.
110
.
111
.
109

Section 17 of the Family Courts Act, 1984.

Section 18 (1) of the Family Courts Act, 1984.
Section 18 (2) of the Family Courts Act, 1984.
Section 18 (3) of the Family Courts Act, 1984.

224

The Code of Civil Procedure, 1908 or in the Code of Criminal

Procedure, 1973 or in any other law, an appeal shall lie from every judgment
or order of a family court to the High Court both on facts and on law, except
interlocutory orders112.

The family court passed a decree or order with the consent of the
parties is not applicable for an appeal113.

If any appeal is preferred under this Act, it shall be within a period of

thirty days from the date of the judgment or order of a family court114.

The High Court on its own motion call for the record for examination
of any proceeding in which the family court situated within its jurisdiction and
pass an order under Chapter IX of the Code of the Criminal Procedure, 1973
for the purpose of satisfying itself as to the correctness, legality or propriety of
the order115. Except as aforesaid, no appeal or revision shall lie to any court
from any judgment, order or decree of a family court116. An appeal preferred

112

.
.
114
.
115
.
116
.
113

Section 19 (1) of the Family Courts Act, 1984.

Section 19 (2) of the Family Courts Act, 1984.
Section 19 (3) of the Family Courts Act, 1984.
Section 19 (4) of the Family Courts Act, 1984.
Section 19 (5) of the Family Courts Act, 1984.

225

under sub-section (1) shall be heard by a Bench consisting of two or more

judges117.

An appeal was filed against the order of the Family Court under the
Dissolution of Muslim Marriage Act, it was held that Learned Family Judge
who had occasion to see the witness and record her statement where the wife
has alleged assault and humiliation for not bringing enough dowry against her
husband, accepted the same to be correct. No infirmity in her evidence has
been brought to light. In such circumstance the appeal filed by the husband
was dismissed118.

Where all the presumptions are in favour of the wife, the Order of
Family Court rejecting her application for maintenance was set aside and the
respondent was directed to pay Rs.300/- per month as maintenance to her119.

The Family Court Act shall have effect anything inconsistent

contained in any other law for the time being in force by virtue of any law
other than this Act120.

117

. Section 19 (6) of the Family Courts Act, 1984.

. Sirajuddin Ansari v. Bilquees Khatoon, 1995 AIHC 2901 All.
119
. Prem Singh v. Smt. Madhu Bala, 1995 AIHC 6149 Raj.
120
. Section 20 of the Family Courts Act, 1984.
118

226

By notification in the Official Gazette, the High Court makes rules as it

may deem necessary for carrying out the purposes of this Act121.

In particular and without prejudice to the generality of the foregoing

power, such rules may provide for all or any of the following matters:
i) normal working hours of family courts and holding of sittings of family
courts on holidays and outside normal working hours122;
ii) holding of sittings of family courts at places other than their ordinary places
of sitting123;
iii) made efforts to follow the procedure by a family court for assisting and
persuading parties to arrive at a settlement124.

By notification, the Central Government with the concurrence of the

Chief Justice of India makes rules prescribing the other qualifications for
appointment of judges to the family courts.125.

Every rule made under this Act by the Central Government shall be
laid, and produce before each House of Parliament while it is in session, for a
total period of thirty days which may be comprised in one session on in two or

121

. Section 21 (1) of the Family Courts Act, 1984.

. Section 21 (2) (a) of the Family Courts Act, 1984.
123
. Section 21 (2) (b) of the Family Courts Act, 1984.
124
. Section 21 (2) (c) of the Family Courts Act, 1984.
125
. Section 22 (1) of the Family Courts Act, 1984.
122

227

more successive sessions, and if, before the expiry of the session immediately
following the session or the successive session aforesaid, both Houses agree in
making any modification in the rule or both Houses agree that the rule should
not be made, the rule shall thereafter have effect only in such modified from
or be of no effect, as the case may be; so, however, that any such modification
or annulment shall be without prejudice to the validity of anything previously
done under that rule126.

With the consultation of High Court, the State Government makes

rules.
i) for carrying out the purposes of this Act127.
ii) about the salary or honorarium and other allowance of judges;128
iii) about the terms and conditions of association of counselors and terms and
conditions of service of the officers and other staff of the family court.129
iv)

for payment of fees and expenses (including traveling expenses) of

medical and other experts130;

v) for payment of fees and expenses to legal practitioners appointed.131
vi) for any other matter which is required132.
126

.
.
128
.
129
.
130
.
131
.
127

Section 22 (2) of the Family Courts Act, 1984.

Section 23 (1) of the Family Courts Act, 1984.
Section 23 (2) (a) of the Family Courts Act, 1984.
Section 23 (2) (b) of the Family Courts Act, 1984.
Section 23 (2) (c) of the Family Courts Act, 1984.
Section 23 (2) (d) of the Family Courts Act, 1984.

228

Any rule made by a State Government under this Act shall be produced
before the State Legislature133.

A copy or application shall be filed before the family court along with
two copies signed by the parties, which are to be sent to the respondent and
the family counselor134.

The family court shall furnish certified copy of judgment to the

concerned parties in every case at free of cost.135

There is no court fee for the appeal before the High Court against the
decree or orders passed by the family court under the civil proceedings136.

It is evident that the setting up of these Family Courts was a dynamic

step so far as reducing the backlog and disposing off cases while ensuring that
there is an effective delivery of justice goes. The establishment of Family
Courts with a view to promote conciliation in, and secure speedy settlement of
disputes relating to marriage and family affairs and for matters connected
with.

132

.
.
134
.
135
.
136
.
133

Section 23 (2) (e) of the Family Courts Act, 1984.

Section 23 (3) of the Family Courts Act, 1984.
Rule 6 of H.C. of A.P. Family Courts (Court) Rules, 2005.
Rule 29 of H.C. of A.P. Family Courts (Court) Rules, 2005.
Rule 30 of H.C. of A.P. Family Courts (Court) Rules, 2005.

229

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 the society and dignity of women.

But still some Family Courts

are not reached the goal perfectly since most of the judges are not following
the procedure and rules of the Act.

Still in some states permanent counseling centers are not established

and failed to fulfill the provisions under Section 6 of the Family Courts Act,
1984.

In some family courts the counselors were appointed as family

counselors at free of cost, due to which they are not concentrating perfectly for
conciliation to the parties so that the rate of result is not reducing through
conciliation in the Family Courts.

Fifty percent of the cases can be solved by way of proper counseling and
there is a provision to appoint permanent counselors for conciliation to the
Family Courts. But the State Governments and High Courts failed to appoint
the permanent family counselors to the Family Courts till now.

The

230

temporary counselors are not concentrating on the cases in the Family Courts
as like permanent counselor as they have to earn money for their livelihood.

As per the family court rules the family court judge shall maintain the
panel of legal experts as amicus curiae but the judges are not following the
rules properly till now.

The judges appointed to the family courts have not any special
experience in dealing with the family matters or training in settling the
disputes through conciliation.

Some State Governments and High Courts also failed to give

preference for appointing women as family judges.

The personal enquiry of the Researcher and as per the report on

working of family courts held by National Commission for Women, it was
revealed that the family courts are entrusted with other cases like civil suits,
motor vehicle accident cases etc. by the Principal District Judges, due to
which the object of the family courts have not fulfilled and the cases relating
to marriage have taken much time for disposal.

In this connection the

maintenance cases before the family courts taking time months together
without granting maintenance, due to which number of deserted women and

231

their minor children are suffering for their livelihood and causing hindrance in
the studies of innocent children. Moreover, huge time may be taken for
disposal of divorce cases. If the said method is prevented before the family
courts, the matrimonial cases will be disposed speedily.