Marital issues and child welfare matters have been threatening the well being of the society since many years now. The number of litigation cases related to the institution of marriage and child security has been on the rise in courts all over India. Due to the mammoth backlog of cases in the Courts in India, the issues related to matrimony and child welfare take a long and unreasonable time to get resolved and in this process justice gets delayed.
With a view to ensure speedy disposal of the cases, the Indian Parliament passed and enacted the Family Courts Act, 1984, which provides for the establishment of separate Courts to deal only with matters regarding matrimony, divorces, alimony, child custody, adoption and child abuse. This Act was one of the several Acts which were passed for maintaining the status and dignity of the women of India who had, for long, suffered the bias and discrimination of laws, customs and traditions of the land.
Section 3 of the said Act empowers the State government to set up Family Courts in any area, district or town of a State whose population exceeds 1 million. Judges of a Family Court have the same qualification as a District Court Judge with a seven year experience as an advocate or a Judicial Officer. It is to be ensured that these Judges are committed to the need to protect and preserve the institution of marriage and to promote the welfare of children. They should have expertise in promoting the settlement of disputes by counseling and conciliation. A female Judge is preferred as laid down by the Act.
A Family Court Judge has the same jurisdiction and powers as a District Court or a Subordinate Civil Court Judge but in addition has been conferred the jurisdiction of a First Class Magistrate (under Chapter IX of the Cr.P.C) to decide on issues relating to maintenance of wife, children or parents. This was a huge step of bringing civil and criminal jurisdiction under one roof. It also facilitated to bring all litigations concerning women and her dignity in one Court. The civil cum criminal nature of these Courts serve as an effective deterrent against crimes pertaining to women and children in a family.
The general procedure followed by the Family Courts to resolve the disputes usually follow the Civil Procedure Code and the Criminal Procedure Code or any other procedure as laid down by it. The first step commonly is the reference of the dispute to a marriage or relationship counselor whose main aim is to bring about conciliation and amiable settlement of issues without the need for tedious litigation. Only if the dispute is not resolved even after conciliation it is taken up for trial. It is, in fact, a duty of the Family Court to make efforts for settlement. The Act also provides for:
- The proceedings to be held in camera (e.g. in case of testimonies by children) to protect their privacy
- To seek assistance of medical and welfare experts or any person professionally involved in women and social welfare
- The Court can also take the advice of an amicus curiae as and when required.
In spite of being an alternative to tedious court proceedings, there are some gaping pitfalls in the actual working of these Family Courts:
- The first one being absence of continuity. Often the conciliators appointed by the Court change on regular basis so at every session of the counseling, the woman has to re- explain all the facts and issues from the very beginning which ultimately leads to delay in justice.
- The Act stipulates that litigants are not supposed to appoint lawyers except when the Court expressly provides for it. This leads to confusion since the lay man is not aware of the intricacies of the due procedure of law as followed by the courts. Although, in most cases, the Court does grant an order to appoint lawyers when necessary.
- Marriage counselors are trained to bring about conciliation and for this many a times the interests of the women are compromised.
- The men may press the women for conciliating in case of divorces to avoid paying the maintenance to the wife or the children which can hamper their interests negatively.
The actual working of the courts is unfortunately very haphazard. The lack of proper infrastructure and facilities demonstrate the callous attitude of the Governments towards safeguarding the interests of the women. Most of them were set up as an immediate reaction to the mounting pressure of women groups and NGOs. The general anti-women view of the society on matters related to matrimonial issues only adds to the difficulties. Yet, it has succeeded in generating awareness about alimony, child adoption and surrogacy and bringing such issues to the forefront.
The Family Courts were set up for achieving the noble purpose of safeguarding women’s rights and status in the society and it has succeeded in making a big headway into that direction. It has paved way for more dynamic changes in the society as a whole. The Family Courts have taken huge strides to break free from the conservative and shallow customs and traditions which demeaned the dignity of a woman. Still, owing to the aforementioned loopholes, a lot remains to be done to usher in a new era of respect for women and a peaceful society.
By: Prateek Singh and Farheen Arshad, Glocal Law School
The Family Court Act, 1984 (ncw.nic.in/acts/The_Family_Courts_Act_1984.pdf)
 Section 3(1)(a) of the Family Courts Act, 1984