India has one of the oldest known legal systems and practices. It’s legislation and jurisprudence spans many decades, forming a living tradition that has developed and evolved with the lives of its people from different backgrounds. India is endowed with the world’s second-largest number of population, so the number of married people is obviously also high. With the large number of married people, marital disputes are also growing due to a variety of factors and most of them are going to court for remedy.
Family courts are made to resolve disputes arising from family issues such termination of marriage or custody of children. One of the family court’s key purposes is to resolve legal disputes that might occur within families. Family courts have a very important responsibility to reduce the workload of conflicts over an overloaded judicial system, providing remedy to litigants, who are forced to endure continuous long delays to get justice. Family courts were established under section 3 of the Family courts act, 1984 with the objective to resolve the dispute speedily by adopting simple procedure.
In case of Lata Pimple v. Union of India the state government was under an obligation to establish family courts in the first instance in the metropolitan cities having a population of one million and above. This is a rational and intelligible difference made to secure aims and objects of the Act. The metropolitan cities having a population of one million and above is a place for various matrimonial disputes, It was further held that: “It was noticed that the petitions under the Hindu Marriage Act could not be disposed of within a reasonable time and some matters remained pending for years together. It is with this object in mind the family courts have been established in the metropolitan cities where the population exceeds one million. It is clear that what is decipherable and intelligible distinction in each class has been carved out having reasonable nexus with the aims and objects of the Act and in order to achieve these aims and objects in the first instance, family courts were established on the basis of population. The Section cannot be challenged as being discriminatory and violative of Article 14 of constitution.”
It is not mysterious that the backlog of cases is a gaping backdoor at the Indian Judiciary. The number of matters being brought before the Supreme Court is steadily on the rise. There are cases dealing with a broad range of issues that persist for decades, such as family matters and land. In such a scenario, the transference of cases to various courts established solely for that purpose not only ensures their speedy disposal, but also ensures that the cases are dealt with more effectively by specialized court experts; it then becomes essential to consider the principle that “justice delayed is justice denied.”
Furthermore, it is relevant to note here that marriage as an institution has become the subject of considerable judicial scrutiny. There are a lot of judicial regulations relating to marriage and its different aspects. The outcome is that the privacy of this institution has been threatened, in addition to the various advantages that these legal provisions may offer. There are also instances of abuse of laws such as Indian Penal Code- Section 498A, Protection of Women from Domestic Violence Act, Section 125 Code of Criminal Procedure, Child Custody laws to name a few.
There are issues such as alimony that become the subject of great controversy and cause family harassment. What is also becoming a concern is that personal problems are mixed with legal concerns and contribute to the needless prolongation of the disposal of these proceedings. Because of the ensuing cultural war between Conservatives and Liberals, the younger generation, being made a scapegoat in the changing times, wastes its useful youth in the precincts of the litigating corridors of family courts, criminal courts, and magistrate courts waiting for justice in long queues.
The purpose of these courts is to create a congenial environment where family disputes are resolved in a friendly manner. Cases are being steered separate from a systematic legal system’s trappings. Conciliators are experts appointed by the Tribunal. The aggrieved party has the right of filing an appeal before the High Court once a final order is passed. Such an appeal shall be heard by a two-judge court. The most unique aspect of the proceedings before the Family Court is that they are referred to conciliation for the first time and only when conciliation proceedings fail to successfully resolve the issue is the matter taken up by the Court for trial. The act specifies that a party is not allowed to be assisted by an attorney without the Court’s express approval but this approval is usually given by the judge.
Issues in Functioning of Family Courts
The primary function of the Family Courts is to help in the efficient and easy disposition of family cases. However, there are certain issues, like any other system, that become a subject of problem when it comes to the working of these courts. One such problem is continuity. For example, counselors are changed every three months in Tamil Nadu’s family courts. Thus, if cases stretch for a longer period of time than this, the female or the aggrieved person has to adjust with new counselors and their narration has to be repeated several times.
A significant limitation of the Family Court Act is that it does not expressly allow courts to issue injunctions for domestic abuse prevention. While progress has been made, viz. the enactment of the 2005 Protection of Women from Domestic Violence Act, which now also extends to punishing women for violent acts; issues of jurisdiction remain to be addressed. It must be comprehended that the Family Courts Act should be read in its entirety, i.e. in accordance with the rules in other laws, such as the Code of Civil Procedure on jurisdictional matters.
Although the Family Court has constrictive authority and has no authority to decide hatred issues, people do not appear to take the court as severely as a magistrate or a civil court in the city would. Additionally, the Family Courts Act stipulated that the majority of judges must be women. That provision, however, was not complied with. During the workshop organized by the National Commission for Women in March 2002, it was noted that there were about 18 female judges out of 84 judges in all the 84 courts that existed previously in the Indian Family Courts.
Government is empowered to establish rules that prescribe a few more qualifications. In addition to prescribing the qualification of Family Court Judges, the Central Government has no role to play in administering this Act. Various High Courts have laid down different procedural rules. The lack of uniformity, however, may also be one of the reasons behind the fact the civil courts often hear family disputes. Family courts also need to associate with feminist organizations and nongovernmental organizations dealing with family, female and child welfare.
A further ambiguity is that the Act provides, by virtue of Section 13, that any individual before a family court is not compelled to be portrayed by a lawyer as a right. The court may, however, provide help and support to a legal expert as amicus curiae, in the interests of justice. This is an instance of which due to the procedural errors the aim behind the family court is vanquished. The fact that the hearings are conciliatory does not alleviate them of the complex legal issues that the family dispute can entail.
Whether the participation of a lawyer be useful or prejudicial to a family court’s performance?
That is the key issue. At the workshop it was suggested that the Women’s Commission should recognize whether an amendment could be suggested to enable the involvement of litigators subject to a proviso giving the court the power to suspend his vakalatnama if he utilizes unnecessary adjournments to shady tactics. If the court is given such control the lawyers will not be able to obtain adjournments. Furthermore, a lay person may be entirely ignorant of the legal terminology which is inevitably put into play during the proceedings. Furthermore, the substantive element of the law cannot be overlooked, since it is from what cases are made. A realistic example of a substantive law issue is that several times, the husband resorts to reconciliation in a divorce case, mostly because he wants to avoid the burden of giving his wife maintenance as support.
There are many controversial and debatable issues like hiring an attorney because of the specific provisions. The lack of uniformity with respect to the rules laid down by various states also leads to confusion in its application. In order to ensure that these courts do not face any obstacles in their work, the need to amend certain laws also needs to be examined and effectively implemented. Such small steps would go a long way towards ensuring that the family courts succeed in serving the noble function for which they were produced to a greater degree.
- What are family courts?
- What kind of matters can be filed before the family court?
- Hiring a lawyer is necessary or not?
- What are the advantages of family court?
 AIR 1993 Bom 255