CONCEPT OF FAMILY COURTS
The concept of Family court implies an integrated broad- based service to families in trouble. Litigation in regard to any matter concerning family, whether divorce, maintenance and alimony, or custody, education and financial support for children etc. should not be viewed in terms of failure or success of legal actions but as a social therapeutic problem needing solution. It should be viewed as litigation in which parties and there counsel are engaged in resolving family conflicts where humane considerations outweigh everything else.
The traditional adversarial procedure should be modified and replaced by a less formal procedure. In our system today, family matters are entrusted to the same district judge who tries claims like breach of contract or tort, claims for motor vehicle accidents, rape and murder etc. it is now realized that adjudication of family matters is entirely a different matter. It has a different culture, it has a different jurisprudence. The court engaged in this task requires a less formal and more active investigational and inquisitional procedure. In other words, it is not a litigation in which parties and their counsel are engaged in winning or defeating a legal action, nut an inquisition in which parties, social workers, welfare officers, psychiatrists are engaged in finding out a solution to familial problems.
THE FAMILY COURTS ACT, 1984
The family courts act, 1984 has not yet been brought into force in all the states. Section 3 of the act talks about establishment of family courts:
Section 3 – Establishment of Family Courts
1) For the purpose of exercising the jurisdiction and powers conferred on a family court by this act, the state government after consultation with the high court, and by notification:
a) shall, as soon as may be after the commencement of this act, establish for every area in the state comprising a city or town whose population exceeds one million, a family court.
b) May establish family courts for such other areas in the state as it may deem necessary.
2) 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 limits.
It appears that the family courts act stipulates to confer on the family court a status like that of the income-tax tribunal. It is higher than that of the district judge and lower than that of the High Court, appeals from its decisions lie to the High Courts. The state government in consultation with the High Court may also provide for associations/ welfare agencies (section 5) to enable the Family Courts to exercise its jurisdiction more effectively. It has to be noted that this provision is not mandatory. The use of word “may” indicate that it is the discretion of the state government whether to provide for such associations or agencies or not.
JURISDICTION OF THE FAMILY COURTS
Section 7 of the act makes provisions regarding jurisdiction of family courts and is divided into 2 parts. The first relates to civil jurisdiction and the other relates to criminal jurisdiction. It is agreed upon that all matters directly pertaining to the family, such as matrimonial causes, maintainenance and alimony of spouses, custody, education and financial support to children, settlement of spousal property, and guardianship and custody of children should come within the jurisdiction of the family court. Explanation to section 7 lists the following matters:
(a) 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;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
Section 9 of the act lays down the procedure to be followed by the Family Courts act lays down the procedure to be followed by the family courts. Section 9 makes provision as to the duty of family courts to make efforts for settlement and conciliation. Section 23(2) of The Hindu Marriage Act also refers to the duty of the courts to bring about reconciliation between the parties at dispute before the family courts. If it appears to the court, that there is a possibility of settlement in a dispute, till such time as the settlement is arrived at, the court shall adjourn the proceedings.
The family court is also authorized by the act to lay down its own procedure in order to arrive at a settlement in respect of the subject matter of the suit or proceedings. However, the parties in a proceeding before a family court shall not be entitled as practitioner. However, they are entitled to appoint an “amicus curiae” to assist them in the settlement of disputes.
India has taken the necessary first step in the direction of establishing the family courts. But much more needs to be done before the family court system can be brought to effective functioning. A vast manpower of trained persons to man the family courts and the auxiliary services would be needed. Need for continuous training and research in family law matters and allied subjects is imperative for the success of the system. This will require the establishment of some permanent bodies or institutions. We may have family law training centers in each state and an institute of family court system at national level.
• Dr. Paras Diwan, Family Law, Allahabad Law Agency, Ninth Edn., 2009. Pg. 278-285