Family Court

Family Court

(1) Overview

1.1    The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs.

1.2    The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceeding relating to matters concerning the family.

1.3    The main objectives and reasons for setting up of Family courts are:

(i) To create a specialized curt which will exclusively deal with family matters so that such a court may have the necessary exercise to deal with these cases expeditiously.

(ii) To institute a mechanism for conciliation of the disputes relating to family;

(iii) To provide an inexpensive remedy; and

(iv) To have flexibility and an informal atmosphere in the conduct of proceedings.

1.4    As Under Section 3 (1)(a) of the Family Courts Act, it is mandatory for the State Government to set up a Family Court for every area in the State comprising a city or a town whose population exceeds one million.

(2) Silient Features

2.1    The silient features of the Family Courts Act, 1984 are as follows:

(a)    It provides for the establishment of Family Courts by the State Governments in consultation with the High Court.

(b)     It makes it obligatory on the State Governments to set up a Family court in every city or town with a population exceeding one million.

(c)    It enables the State Governments to set up Family Courts in other areas also, if they deem it necessary.

(d)     It exclusively provides within the jurisdiction of the Family Courts the matters relating to:

(i) Matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of marriage or as to the matrimonial status of any person;

(ii) the property of the spouses or of either of them;

(iii) declaration as to the legitimacy of any person;

(iv) guardianship of a person or the custody of any minor; and

(v) maintenance of wife, children and parents.

(e)    In a first instance, to effect a reconciliation or a settlement between the parties to a family dispute. During this state, the proceedings will be informal and rigid rules of procedure shall not apply.

(f)     It simplifies the rules of evidence and procedure so as to enable a Family Court to deal effectively with a dispute.

(g)     It provides for only one right of appeal which shall lie to the High Court.

2.2    It provides that parties to a dispute before a Family Court shall not be entitled, as of right, to be represented by legal practitioner. Means to say that, in Family court one can fight and argue for his side by his own. Involving a legal practitioner depends on parties

2.3    It provides for the association of social welfare agencies, counsellors, etc. during conciliation stage and also to secure the service of medical and welfare experts.

(3) Family Courts strength

3.1    At present (upto 31/12/2018), total 535 Family Courts are in functional in the country.

3.2    Numbers of Family courts functional in India upto 31/12/2018 are tabulated below:

(4) Attendance sheet for physical appearance

4.1    A sample format for physical attendance in Family court is given as follows:

In the Court of Principal Judge/Additional Principal Judge

Hon. Family Court, Muzaffarpur (Bihar)

Matrimonial Case No. XXX/2018

Warrior Kumar Singh   —— Petitioner

Vs

Nagin                                     —–Respondent

Attendance is hereby filed in respect of the Petitioner Shri Warrior Kumar Singh please.

                                                                                                              Signature with date

4.2    Attendance in any Family Court may directly be filed/signed by the petitioner without involvement of any legal practitioner. However, if any legal practitioner is involved in the case then attendance either be filed directly by the petitioner with his own signature as elaborated at para 4.1 or the same can be filed by the legal practitioner with his/her counter signature after the signature of the applicant/petitioner.

(5)  Miscellaneous

5.1       The family court has the power to make their own procedure.   Until these courts  don’t define their own procedure, they need to follow Code of Civil Procedure.  Even Code of Civil Procedure was changed for Family Court.  Family Courts are not required to record the oral statement of the witness at length.

5.2          The Family Court can receive any document or statement even if it is not acceptable under The Indian Evidence Act 1872.

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

5.4          The appeal from family courts lies directly to the High Court within 30 days of passing the order or the judgement. Such The appeal can be on both question of law and fact.

5.5        Steps to follow for registering a suit in a Family Court :  Following steps are required to be followed-

(a) Such person needs to describe all the details clearly on a watermarked paper and submit along with the court fees and an affidavit.

(b) 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 for further steps.

(c) The applicant files the summons form for notice on the opposite parties.

5.6       The family court can entertain the petition relating to the property dispute between the parties to a marriage only, but it has no jurisdiction to entertain the applications in case involving a dispute between brothers, sisters, father, mother concerning property.

5.7       Two pillars on which the whole structure of family courts is built  are Counselling and conciliation.

5.8        The Family Courts Act also covers areas of the following acts:

(a) The Hindu Marriage Act, 1955

(b) Special Marriage Act, 1954

(c) Hindu Adoption and Maintenance Act, 1956

(d) Parsi Marriage and Divorce Act, 1936

(e) The Indian Divorce Act, 1869

(f) The Christian Marriage Act, 1972

(g) Dissolution of Muslim Marriage Act, 1939

(h) The Code of Criminal Procedure  1973 (Sec. 125 to 128)

(i)  The Guardians andn Wards Act, 1890

5.9        The Family Court Act, stipulates that a party is not entitled to be represented by a lawyer without the express permission of the court.  However, invariably the court grants this permission and practically, it is a lawyer which represents the parties.

5.10        The most unique aspect regarding the proceedings before the Family Court are that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court.

5.11      The Conciliators are professionals who are appointed by the Court.

5.12        Conciliation: Conciliation is an alternative out-of-court dispute resolution instrument. Like mediation, conciliation is a voluntary, flexible, confidential, and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator who acts as a neutral third party.

5.13     Mediation: Mediation is an informal and flexible dispute resolution process. The mediator’s role is to guide the parties toward their own resolution.  Through joint sessions and separate caucuses with parties, the mediator helps both sides define the issues clearly, understand each other’s position and move closer to resolution.

In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract.  The principal characteristics of mediation are: Mediation is a non-binding procedure controlled by the parties.

5.14     No party to a suit or proceeding under the Family Court shall be entitled to be represented by a legal practitioner but the court may requisition the services of expert as  Amicus Curie.

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