Dr.

Ram Manohar Lohiya National Law University,

Lucknow
2017

Final Draft
On
Topic: FAMILY COURT ACT 1984; A CRITICAL STUDY AND ROLE OF
ADVOCATES
In
Subject: FAMILY LAW-I

Under the guidance of: Submitted by:

Mrs. Samreen Husain Anushthan Tripathi

(Asst. Professor) Roll No. 41

B.A LL.B(Hons.)
INDEX

 Introduction
 Jurisdiction
 Procedure to be followed by family court
 Role of lawyers
 overview
INTRODUCTION
Marriage is an institution which is considered as sacred in India. But with the changing times
marriage has become a subject of great judicial scrutiny. Before 1984 all family matters were
seen by ordinary civil court judges who used to deal with matters like recovery of money or
property. In 1984 the Government of India after the recommendation of the Law Commission
in their 59th Report the family courts were created by a Gazette notification of the Central
Government. This Act was known as ‘The Family Courts Act, 1984’.

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.Another reason for setting up of family courts was the mounting pressures from
several women‟s 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 . 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 well . 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. 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.
JURISDICTION
1.Civil matters
The family courts exercise the entire jurisdiction which is exercised by any District Court or
any subordinate civil court in the following matters-

• Matrimonial causes

• Maintenance and alimony of spouses

• Custody and guardianship of children

• Settlement of spousal property

2. Criminal matters
The judge is vested with the power exercisable by the Magistrate of First Class under Chapter
IX of Code of Criminal Procedure which is Order for maintenance of wives, children and
parents.

Powers of Family Court

1. The family court has the power to make their own procedure.

2. They are not required to record the oral statement of the witness at length.

3. The appeal from family courts lies directly to the High Court.

4. The Family Court can receive any document or statement even if it is not admissible
under Indian Evidence Act 1872.
PROCEDURE TO BE FOLLOWED BY FAMILY COURT
1. Section 9 provides that the family court should try to resolve the matter
through conciliation and settlement.

2. If there is possibility of settlement of dispute the court should adjourn the proceedings
until such settlement is arrived at.

3. The parties of the proceeding are not required to hire a legal practitioner; however
they are entitled to appoint an ‘amicus curie’ to assist the parties in the settlement
proceedings.

4. In camera proceedings can be ordered if the parties desire. (In camera proceedings
means that the public is not allowed to see the proceedings)

5. Judgment should be concise with the statement of the case, determination of the
decision and the reason for the decision.

6. Provisions of Code of Civil Procedure, 1908 are applied in the enforcement of the
order or the judgement.

7. The Court can take assistance of medical and welfare experts.

Appeal
1. Appeal from judgment or order of Family Court can be made to the High Court within
30 days of passing the order or the judgement.

2. The appeal can be on both question of law and question of fact.

3. The appeal should be heard by a High Court bench of two or more judges.

4. No appeal lies against an order which is passed with the consent of the parties.

Steps to follow for registering a suit in a Family Court

1. If a person wants to register a suit in the family court then he needs to describe all the
details clearly on a watermarked paper and submitted along with the court fees.

2. Along with the suit papers the petitioner should attach an affidavit that all the facts
stated in the plaint is true.

3. The papers are submitted to the registrar of the Family Court who verifies all the
relevant documents.

4. These files are presented to the Principal Judge of the Family Court. After verification
of each file and hearing the petitioners, the Principal Judge decides whether the suit is
fit for registration.
 5. The applicant files the summons form and gets the next date for hearing.

Challenges
1. Inadequate number of conciliators- In many Courts it has been observed that they
don’t have counsellors or the counsellors are inapt. A major problem is the
counsellors keep changing frequently.

2. Attitude of Family Court Judges- The judges appointed to the family court do not
have any special expertise in dealing with family matters, nor do they have any
special expertise in settling disputes through conciliation. The appointment of women
judge in Family Court is still a dream to be achieved.

3. Lack of Uniformity in Rules and Procedures- The procedure established in different

High Courts have laid down different rules of procedure. This causes confusion
during the proceedings. There are still many High Courts who have not yet
established Family Courts.

4. Permitting Lawyers- Though the act has provided that the proceedings should be
conducted without a legal practitioner, the system did not create any alternative
system of simplified rules. The litigants are at the mercy of court clerks and peons to
advise them on the rules followed.

5. Poor state of infrastructure- The Family Court suffers from lack of basic
infrastructure. In maximum Family courts there is absence of drinking water, canteen,
typist, notary.This lack of basic requirements creates hardship. The working
conditions are basically unhygienic and poor.
ROLE OF LAWYERS

What is a family dispute?

All families at some time experience difficulties and stress. Family disputes can be
about almost anything. Some of the most common topics in mediation & Conciliation on
Family Disputes are:

1. Disputes among Husband and wife

2. Children’s education, health and welfare

3. Contact with children (separated couples or extended families)

4. Financial support for children (separated couples)

5. Lack of trust

6. Parenting differences

7. Disputes while partition including Property settlement

8. Disputes on taking care of parents

9. Relationship breakdown etc..

Issue like residence decisions, distribution of care giving responsibilities, safety and health
concerns, wills and estates, the sale of the family home and more can divide a family for
years to come. When communication is difficult and critical decisions are put on hold,
families may need the help of a skilled mediator & Conciliator to get them “unstuck” so they
can move forward. In mediation and conciliation, people deal with the problems and issues
under dispute in a timely fashion and in privacy. It is a cooperative rather than an adversarial
process, so participants are often able to repair their strained relationships. Because family
members develop their own solutions, which reflect their family’s unique satisfaction with
the outcome is quite high and these resolutions tend to the workable and long lasting.

So what is mediation?

A simple, relatively inexpensive from of dispute resolution by communication. A way

to resolve differences with the help of an independent, unbiased mediator usually a lawyer or
mental health professional by giving an opportunity to teach their own solution by the parties
to the dispute.

What is conciliation?

Conciliation “is a process in which the conciliator plays proactive role to bring about a
settlement”. Conciliation differs from Mediation in that the main goal is to conciliate, most of
the time by seeking concessions. In Mediation, the mediator tries to guide the discussion in a
way that optimizes parties need, takes feelings into account and reframes representations.
Where while defining ‘Mediation and Conciliation, it is stated that ‘Mediation is way of
settling disputes by a third party who helps both sides to come to an agreement, which each
considers acceptable. Mediation can be ‘evaluative’ or ‘facilitative’. Conciliation, it is said, is
a procedure like Mediation but the third party, the conciliator, takes a more interventionist
role in bringing the two parties together and in suggestion falling into disuse and process
which is pro-active is also being regarded as a form of Mediation. One significant difference
between conciliation and Mediation lies in the fact that conciliators possess expert knowledge
of the domain in which they conciliate. The conciliator can make suggestions for settlement
terms and can give advice on the subject-matter. Conciliators may also use their role to
actively encourage the parties to come to a resolution. In certain types of dispute the
conciliator has a duty to provide legal information. This helps any agreement reached to
comply with any relevant statutory framework pertaining to the dispute. Therefore
conciliation may include an advisory aspect.

Both Mediation and conciliation serve to identify the disputed issues and to generate
options that help disputants reach a mutually-satisfactory resolution. They both offer
relatively flexible processes; and any settlement reached should have the agreement of all
parties. This contrasts with litigation, which normally settles the dispute in favor of the party
with the strongest argument.

Time for mediation

When the parties to the dispute need to find a way to communicate, when they need to find
solutions, when they need to manage stress and high emotions, when they need to balance
future plans with practical decisions, then that will be the best time to put it before
mediation/conciliation. This is the perfect time for an independent, unbiased mediator to step
in and help them to establish and identify their needs for the future, communicate those to the
other party without animosity and friction, and for enable them to work together, in the best
possible way, in the best interests of themselves and for the betterment of their children.
More than any thing, children want their parents to get along. If they can’t have first prize of
Mum and Dad getting back together, an amicable relationship is the next best thing.

People often assume that family disputes must be settled in court by a judge. The
reality is that family disputes should be settled before they reach the courtroom. Mediation is
a process where a neutral third party with no decision making power –the mediator – helps
people to negotiate a settlement to their dispute. One of the most important differences
between mediation and the court process (which is called litigation) is that mediation allows
people to reach agreements that meet everyone’s interests. The court process, on the other
hand, focuses on opposing legal rights and obligations of the parties. In litigation, one person
wins and the other person loses, where as mediation will creates a win-win situation.
OVERVIEW
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.1 The words “disputes relating to
marriage and family affairs and for matters connected therewith” must be given a broad
construction. To read the words “a suit or proceedings between the parties to a marriage” to
mean “parties to a subsisting marriage” would lead to miscarriage of justice2 .

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
therewith3 . In Abdul Jaleel v. Shahida, 4 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. 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 women5. The State Government after consultation with the High Court and by
notification establishes family court for every area in the State comprising a 6city or town
whose population exceeds one million7 and may establish family courts for such other areas
in the State as it may deem necessary8 . 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 limits9 .
The place of the family court need not be permanent. It can be shifted from one place to yet
another place within the area10 . The State Government may, with the concurrence of the

1
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/
2
Abdul Jaleel v. Shahida, AIR 2003 SC 2525.
3
Family Courts Act, 1984 by Saibaba Itapu,1st edn, 2009, P-99, Published by Sharma Law House, Hyderabad.
4
AIR 2003 SC 2525 = 2003 (4) SCC 166.
5
Article “Family Court in India: An Overview, downloaded from the website of
http://www.legalserviceindia.com/article/1356--familycourts-in India,
6
Section 3 (1) (a) of Family Courts Act, 1984
7
Section 3 (1) (b) of the Family Courts Act, 1984.
8
Section 3 (2) of the Family Courts Act, 1984
9
Gangadharam v. State of Kerala, AIR 2006 SC 2360.
10
Section 4 (1) of the Family Courts Act, 1984
High Court, appoint one or more persons to be the judge or judges of a family court11 . 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 force. The State
Government may with the concurrence of the High Court appoint any of the judges to be the
principal judge and any other judge to be the additional Principal Judge. 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 judges. 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 leave . 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 law , 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 qualifications12 and also made rules for other qualifications for
appointment of a judge of the family court.

11
Section 4 (2) (a) of the Family Courts Act, 1984.
12
Section 4 (3) (c) of the Family Courts Act, 1984.