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FAMILY COURTS[1]

QUESTION BANK.

Q.1. Write an essay on ‘Family Court’.

Q.2. State the necessity of ‘Family Court’ and its jurisdiction

Q.3. Write a full dressed note on “Family Court”.

SHORT NOTES.

Family Court.

I. NEED OF FAMILY COURTS.

The object of marriage is to protect and preserve the family system for the utmost good of society. The marriage is to be performed, live happily, perform each other’s matrimonial duties, and keep marriage bound intact. These may be reasons why, under Hindu Law, marriage is treated as a pious sacrament and not merely a contract. The wife is treated as ardhangini, i.e., half her husband’s body. It is due to her position and importance in man’s life.

In their cohabitation, little conflicts[2] may come. It happens in almost all families. Spouses usually solve these conflicts through their mutual understanding. However, some conflicts may come that need judicial intervention. However, intervention by the ordinary judiciary is incompatible with family matters. The ordinary judiciary does not fit in solving matrimonial matters. The reasons for ordinary courts being unsuitable for marital conflicts are as follows.

1. Peculiarity of the problem[3]–

In ordinary courts, litigation is viewed as a success or failure of the parties. However, litigation regarding any matrimonial matter like divorce, maintenance and alimony, custody, education and financial support to children, and the decree of judicial separation or restitution of conjugal rights are of a peculiar character. Therefore, these matters should not be looked at as the success or failure of the parties but as social problems which need solutions. In other words, due to their peculiar nature, matrimonial matters do not need the mechanical approach of an ordinary judicial system but sympathy to solve problems smoothly.

2. Procedure of adjudication[4].

The procedure of existing courts is formal, rigid, and time-consuming. Resolving family conflicts requires special procedures designed to help people in trouble reconcile and resolve their differences speedily.

3. Attitude of courts[5].

The District Court, which has jurisdiction to decide family matters, in its ordinary course, deals with matters like accident claims and contractual and tortuous conflicts or decides criminal matters like rape, murder, dacoity etc. Therefore, it becomes more of a mechanical mind. Courts must be solution-oriented, sympathetic, and have a social attitude in matrimonial matters.

Therefore, the Family Court Act of 1984 has provided for the establishment of Family Courts that are free of defects of ordinary courts. The concept of the Family Court, as understood in this Act, is an integrated, broad-based institution that provides service to families in trouble. The structure of the Family Court should stabilise the marriage to preserve the family. If dissolution is necessary, the marriage must be dissolved with fairness and minimum bitterness.

II. COMPOSITION OF FAMILY COURT[6].

The Family Court Act of 1984 provides for the establishment of a Family Court for towns and cities with a population exceeding one million. The State Government is empowered to establish Family Courts in other areas.

a) Appointment of Judges –

The State Government, in consultation with the High Court, appoints judges of the family courts.

b) Constitution of court-

Family Court may consist of one or more judges. Where there is more than one judge, one may be designated as the principal judge.

c) Qualification of judges-

4 (3) of the Act provides that the person to be appointed as Judge of the Family Court should be –
i) A person who has at least seven years of experience as a judicial officer or
ii) as a member of a tribunal, or

iii) who has held a post for that duration under the Central or a State Government requiring special knowledge of the law or

iv) who has been an advocate of a High Court (or two or more High Courts in succession) for at least seven years; may be appointed as the family court judge.
v) The Central Government may also lay down other qualifications in consultation with the Chief Justice of India,

Women will be given preference for the appointment as family court judges.

d) Age of retirement-

The age of retirement of family court judges is 62 years.

e) The terms and conditions of services-

The State Governments will determine the terms of services and emoluments of judges in consultation with the High Court.

f) Status of Family Court-

As per the Act, the status of the Family Court is similar to that of the income-tax tribunal. It is higher than the District Court and less than the High Court.

g) Appeals-

Appeals from the decree of the Family Court lie with the High Court.

III. JURISDICTION OF THE FAMILY COURT[7].

As per the explanation of S. 7 (1) of the Act, the following matters are enumerated under the jurisdiction of the Family Court. –

(i) a suit or proceeding between the parties to a marriage for a decree of nullity, restitution of conjugal rights, judicial separation and divorce:

(ii) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person:

(iii) a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them;

(iv) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship[8]:

(v) a suit or proceeding for a declaration as to the legitimacy of any person[9]:

(vi) a suit or proceeding for maintenance; and

(vii) a suit or proceeding in relation to the guardianship of the person or the custody of or access to any minor.

Under S. 125 of the Criminal Procedure Code, the Family Court has also been conferred jurisdiction to pass orders for the maintenance of wives, children, and parents.

IV. PROCEDURE[10].

To simplify the Family Court procedure, the Act in S. 10 has provided that the procedure prescribed under the Code of Civil Procedure applies to Family Court. Moreover, the Family Court is free to lay down its rules of procedure. The rules of procedure framed by the Family Court will override the procedure prescribed by the Code of Civil Procedure. Apart from the above rules of procedure, the Act has laid down some rules. Viz.-

i) the family court may receive as evidence any report, statement, document, information or other matter that may assist it effectively in resolving a dispute.
ii) The family court is not obligatory to record the evidence of witnesses at length. It would be enough if the Judge recorded or caused a memorandum to be recorded. The memorandum must be signed by the Judge and the witness, and once that is done, it will form part of the case record.

iii) Where the evidence of a person is of a formal character, it may be given by affidavit, and it will constitute part of the evidence in the case.

iv) A family court judgement should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.
v) A decree or order of the family court may be executed by the court itself or any other family court or by an ordinary civil court at the convenience of the party concerned.
vi) No appeal lies against the interlocutory orders. Similarly, no appeal lies against the decrees or orders passed with the party’s consent.Otherwise, an appeal lies to the High Court on facts and law.All appeals must be presented within a period of thirty days from the date of judgment, order or decree of the family court.All appeals are to be heard by a bench consisting of two judges.

vii) in some matrimonial matters, the lawyers are excluded from pleading to provide a speedy remedy.

In Sharwari Sarpatwar v. Mahedeorao Sarpatwar

2008 (2) All MR 163.

Facts:

The husband was permitted to engage a lawyer in a divorce proceeding. However, the wife was not permitted to engage a lawyer. Moreover, her application to engage a lawyer was not decided for three months.

Held:-

Wife was permitted to engage a lawyer.

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[1] कौटुंबिक न्यायालय [पारिवारिक अदालतें]

[2] छोटे तंटे/वाद [छोटे संघर्ष]

[3] विशिष्ट स्वरुपाचे प्रश्न [समस्या की ख़ासियत]

[4] न्यायालयीन प्रक्रिया [अधिनिर्णय की प्रक्रिया]

[5] न्यायालयाची वृत्ती/भूमिका [अदालतों का रवैया]

[6] कौटुंबिक न्यायालयाची रचना [परिवार न्यायालय की संरचना]

[7] कार्यक्षेत्र

[8] वैवाहिक संबंधातून निर्माण होणा-या प्रष्नावर आदेष किंवा तात्पुरता आदेश [वैवाहिक संबंध]

[9] व्यक्तीची औरसपणाबद्दल निर्णय [किसी भी व्यक्ति की वैधता]

[10] न्यायालयाची प्रक्रिया