Introduction:
Family is a system of relationships existing between parents and children. It is an institution and is often called a basic social institution because of its important functions of procreation and socialization.
Family disputes arise in the families due to psychological, social, economical, and emotional feelings. Before the enactment of The Family Courts Act, 1984 the civil as well as the Criminal Courts were heavily burdened.
The family problems are required to be treated separately and amicably rather than to be settled in the Civil and Criminal Courts. Hence, several social and women organizations, Judges urged the Government to make special Acts to deal with family matters. The Indian Parliament enacted “THE FAMILY COURTS ACT, 1984”, which came into force from 14-09-1984. This Act contains 23 Sections and the Act enabled to establishment of “The Family Courts” in India. The States and High Courts are given rulemaking power.
Objects
The Act aims to achieve several objects. They are:
1. The aggrieved parties are generally women. These family courts give moral and legal support to them.
2. Family disputes arise from family life. These sensitive matters cannot be dealt with in ordinary Courts. Hence, family courts meet this requirement.
3. In the ordinary Courts, rigid rules of practice pertaining to evidence are followed. But in family courts this rigidity comparatively less. There is no need to take the assistance of advocates. The parties can plead their grievances themselves. However, at the request of the parties, the advocates are permitted.
4. Conciliation: The family courts promote conciliation and speedy settlement
5. Every suit in these courts can be held in camera if either party asks.
Nature of Disputes
Section 7[1] of the Family Courts Act, 1984 hereafter referred to as “the Act” clearly describes the nature of disputes of a suit to be settled in the family courts as:-
- For restitution of conjugal rights or dissolution of marriage or decree of nullity of marriage.
- For obtaining the declaration of valid marriage or matrimonial status.
- Any dispute regarding the property of the couple.
- For obtaining any order, injunction which arises in the marriage relationship.
- For getting the declaration regarding the legitimacy.
- For claiming maintenance.
- For obtaining the guardianship or custody of, or access to anyone.
Jurisdiction
A family court is a civil court. It shall have and exercise the jurisdictions of district court or subordinate civil court. It is only subordinate to the High Court.
The High court has original and appellate jurisdiction over the family courts. Also, the family court has the jurisdiction as a First Class Magistrate. It cannot entertain an application under Sec 3 of the Muslim Women (Protection of Rights on Divorce) Act,1986. Hence, the Muslims are excluded from the Jurisdiction of Family courts.
These courts do not have any authority to interfere in the matters except the matters explained in Sec 7 of the Act. Hence, it cannot grant a succession certificate and also cannot interfere in matters under Sec 9(4) Hindu Adoptions and Maintenance Act,1956. These courts exercise jurisdiction over Section 125 Cr P.C.
Procedure
Sections 9 to 18 of the Act describes the procedure to be followed by the family courts, their powers and duties.
Section 9 imposes that where ever possible as per the circumstances the family court makes necessary measures for the settlement and that duty lies on it.
Section 10 explains the General Procedure. It states that provisions of CPC,1908 (except the proceedings of Chapter – IX of Cr.P.C,1973) will apply to the suits and proceedings before a family court
Section 11 describes the In-camera proceedings. People cannot express their opinions, incidences, innermost secrets before everyone. Therefore, this section gives them an opportunity for proceedings to be held in camera if the court and either of the party desires. It preserves the integrity of people.
Section 13 imposes that the parties need not be represented by a legal practitioner. However, the proviso relaxes if the family court considers it necessary then it might seek the help of a legal expert as amicus curiae.
Evidence
The main of the Act is to solve the disputes in an amicable settlement and speedy disposal. Therefore, the application and rigidity of rules of evidence are diluted in the matters. Sections 14, 15, and 16 explain the “Rules of Evidences“.
The Rajasthan High Court[2] opined that Section 14 of the Act is a special legislation and the principle of admissibility of documents are provided under Section 6 (e) of the Evidence Act are not relevant here.
Section 15 explains that in cases before the Family Court, recording the evidence of witnesses at length is not required, but the Judge will record whatever the witnesses depose.
Section 16 provides that the evidence may be given by affidavit.
Section 17 lays down about the judgment
Section 18 explains about the Execution of decrees and orders.
Appeal and Revisions
An appeal or revision from a Family Court can be exercised by the high court both on facts and law. The limitation for an appeal or revision is 30 days.
The High Court may of its own or otherwise call for examination regarding any proceeding of the Family Court. (Section 19)
Difference between Family Courts and Other Courts
The facts of the ordinary Civil and Criminal cases and that of the family disputes are quite different. Thus, a judge of a family court will not function like a judge of a civil or criminal court. The reason being that in civil or criminal cases depending on various factors like evidence etc., one party fails and one party succeeds. But that is not in family courts as both parties are equal and the success and failure concept does not arise.
Role of Conciliation
Family court depending on the nature of the case it is empowered to direct the parties to approach the Conciliation.
Section 6 empowers the Government of the state to appoint the Counsellors and other officers to the court.
The Counsellor will assist and advise the parties regarding settlement of the dispute and arriving at reconciliation. The parties settle the dispute before the Counsellor/ conciliator in writing which will be signed by the parties and the counsellor/conciliator. Basing upon such settlement the family court pronounces a Decree or Order.
The Act empowers the Government of stare to establish the “Counselling Centres” in each city, town, or other area.
Also, the Counsellor/Conciliator will be entitled to supervise the placement of children in custody.
Case Laws
Asfaq Qureshi vs Aysha Qureshi[3]
Facts of the case:
The appellant challenged that the family court has no jurisdiction in declaring marriage as void for Muslims and the judgment & decree legality was challenged. The Respondent Hindu Women claims that she did not convert into Islam and not married the appellant.
Judgment of the Case:
The court on pursing various facts held that as per Section 7 of the Act, 1984 the suits which were challenged for declaring marriage and marital status was maintainable.
Shyni vs George and Ors[4]
Brief Facts:
In this case, the wife filed the case against the other spouse of the marriage, her husband, father-in-law. It was filed for recovering the money which was given to the petitioner’s husband and father-in-law during her marriage. It was contended that the family court has no jurisdiction.
Judgment of the Case:
It was held that if the petitioner’s husband has given the property to a stranger then the petitioner (wife) can sue for recovering the property and it lies in the jurisdiction of the family courts.
Conclusion
The major object for establishing the family court is for the promotion of Mediation, conciliation, and also for settlement of marriage disputes and various family issues. Therefore, this Act is now called as a progressive legislation. It should help in stabilizing and preserving the marriage system.
References:
[1] http://legislative.gov.in/sites/default/files/A1984-66_0.pdf
[2] Crl. App 98 of 1991
[3] F.A.(M)Nos.47/2008 & 128/2008
[4] AIR 1997 Ker 231, II (1997) DMC 676
0 Comments