Abstract:
Family courts in India were set up as a part of legal reform concerning women. They were established with a purpose of providing speedy justice to the parties by non adversarial methods in dealing with the disputes. The papers is an attempt to analyse the working of special court by focusing on the challenges faced by litigants, judges and counsellors in carrying out the functioning of court effectively and to recommend suggestions to make its functioning more effective.
Keywords: Family Court, Matrimonial Dispute, Family Dispute, Family Courts Act
Introduction
India’s legal system is primarily based on the English Common Law and its judicial system is set up on the adversarial pattern followed in the courts. This borrowed system from British colonial rule on the land of India has not been found suitable for all kind of conflicts and has rather overburdened judiciary with the mounting pressure of cases viz. civil, criminal, matrimonial, revenue, industrial etc. The increased filing of cases along with a huge backlog has caused low efficiency in the working of courts and eventually delaying in the disposal of cases. In such scenario, parties feel powerless and perceive that system is against them. To make justice easily and speedily accessible to the parties, the Malimath Committee also known as ‘Arrears Committee’ suggested for the adoption of other alternative methods for dispute resolution such as arbitration, mediation, conciliation against the traditional court litigation[1]. The mechanism of ‘Alternate Dispute Resolution’ gained acceptance and was found much sought after route for various kinds of disputes particularly for matrimonial and family disputes. Setting up of family courts was one of the attempts at putting in place an alternate dispute resolution system to bring easy and speedy conflict resolutions within the reach of couples.
Historical Perspective: Ideological Basis
Marriage is an institution which leads to the formation of a family. It is not restricted to the physical union of a man and a woman but also extends to the spiritual and emotional union between the partners to the marriage and other members of the family. According to Dharmashastras, a great sanctity is attached to the relationship of husband and wife through marriage and it is the feature of inseparability in this relation on which Indian social life is constructed.[2] Thus, quality of a family is not related to health and happiness of the members of a family only but it also has its impact on the society at large. Therefore, any instability in the institution of marriage may affect the society as a whole.
Matrimonial disputes are in itself a painful experience in the lives of couples but it turns out to be a traumatic when such disputes reach into the courtrooms. The intimidating atmosphere of traditional courts, complex and rigid rules of evidence, time consuming procedure leads to more frustration, anger and even violence between the parties whereas the nature of such disputes demand flexible, humanistic and open ended approach. Thus, a need was felt for the establishment of special courts which not only ensures flexible procedure and speedy disposal of cases but where judges could also show sensitivity and humane touch dealing with the broken marriages.
The demand for the establishment of family courts was first of all raised by late Smt. DurgabaiDeshmukh[3], one of the members of constituent assembly of India. In 1952, she went to China as an Indian delegate where she had an opportunity to analyse the judicial system of China, especially the working of its family courts. Other than China she also analysed and was impressed by the functioning of family courts in Japan and Russia.[4]On her returningto home, she submitted a proposal regarding the establishment of Family Courts in India as well to the then Prime Minister Pt. Jawaharlal Nehru suggesting that the then Chief Justice P.B.Gajendragadkar and Justice M.C. Chagla had also recommended for the establishment of family courts as a part of Indian judicial system.[5] She laid stress that in a country like India, family courts would play a great role as it would not only reduce the workload of traditional courts but would also provide a good forum where family break-ups could be prevented and happiness would be restored to the couples in conflict including children.[6]
In 1973, the Law Commission of India in its 59th report emphasized on the necessity for special approach of matters connected with divorce.[7]As per the recommendations of Law Commission,an amendment was done in the Code of Civil Procedure in 1976 and Order XXXII A[8] was inserted providing a special procedure to be adopted in suits relating to matters concerning the family. In the following year 1975, a Committee on the Status of Women suggested that all matters concerning family should be dealt with a separate forum where emphasis was laid on the applicability of non- adversarial methodspromoting conciliation in resolving disputes relating to marriage and family affairs and securing speedy settlement[9]. However, the courts continued to deal withsuch disputes in the same manner as other civil matters and same adversary approach prevailed. Thus, a great need was felt for the establishment of separate and special adjudication forum for family matters.
Eventually, the demand of several organizations, women’s associations and individuals to set up special courts for expeditious settlement of family matters turned into reality when in 1984, the Family Court Bill was introduced in the Parliament. Statement of Objects and Reasons accompanying the bill referred to futility of the Special Procedure (Order XXXII A of Code of Civil Procedure, 1908) required to be adopted by traditional courts in dealing with family matters and the need for the establishment of family courts. The bill was passed by both the houses and received assent of the President of India on 14th September, 1984[10]. After three years of enactment of the Act, Rajasthan was the first state to establish the first family court of India in 1987 followed by Karnataka in 1988.
Thus, the Family Courts Act, 1984 (the Act) was enacted as a part of the trends of legal reform concerning women seeking gender justice and less intimidating court environment.It is based on the fusion of inquisitorial and adversarial system and participatory form of grievance redressal.[11]The underlying idea is to provide friendly atmosphere for the amicable settlement of disputes.
Family Courts Act, 1984 – Salient Features
The concept of Family Court implies an integrated broad based service to couples in conflict. It is a procedural statute which provides for the establishment of separate and special forum, authorised to adopt an informal approach and set its own procedure for handling disputes relating to family matters. The Act nowhere affects the substantive rights of the parties and merely mentions the change in procedure to be adopted by courts for the speedy settlement of family disputes.
‘Conciliation’ and ‘Speedy settlement’ of disputes relating to marriage and family affairs and for matters connected therewith are the two objectives which are set out in the Preamble of the Act. To achieve these objectives, the Act lays down various provisions which are as follows:
- Establishment of Family Court for every area in the State whose population exceeds one million.[12]Madhya Pradesh High Court in ShankerKanojiaMayabhaiShankerKanojia and another[13] held that a family court is not effectively established unless its judges have been appointed in accordance with the provisions of Act.[14]
- The State Government after consultation with respective High Court is authorized to appoint one or more persons as judge of family court.[15]The Act lays down the basic qualifications required for a person to be appointed as judge in the family court.However, the Central Government may with the consonance of Chief Justice of India prescribe other qualifications for the persons to be appointed as Judge of family court.[16]
- The Family Courts (Other Qualification for appointment of Judges) Rules, 1988mentions the other qualifications for the appointment of judge of Family Court:[17]
- A person should be Post-Graduate in law having specialization in personal laws or possessing Master’s degree in Social Sciences such as sociology, social welfare, psychology/philosophy with law degree; and
- Minimum experience of seven years in field work/research or teaching experience in any of the government department or college/university or any comparable academic institute emphasizing to the problem of women and children or having seven years’ experience in the examination and/or application of various personal laws of Centre/ State concerning marriage, divorce, maintenance, adoption, guardianship and other family conflicts.
- Special powers are conferred on the judges in pursuance to which they can lay down their own procedure for the working of court which should not be very technical and should be in the interests of justice.[18]
- Providing the assistance of services of non-legal support system such as organizations engaged in social welfare, professional engaged in the welfare of family, medical experts, counselors etc. so that the main purpose of the Act is easily and effectively accomplished.[19]
- Conferring jurisdiction on family courts equivalent to the jurisdiction of district court or any subordinate civil court in respect of suits or proceedings relating to nullity of marriage, validity of marriage, property of parties, order or injunction arising out of a marital relationship, declaration as to legitimacy of any person, maintenance, guardianship of person and custody of minor.
- Providing to hold proceedings in camera.
- Restricting the role of advocates as of right and authorizing Family court to seek their assistance as amicus curiae.
Role of Judges, Lawyers and Counsellors
The success of a family court depends on the procedure followed in the court and the persons selected/appointed to carry out the functioning of court. The Act provides that those persons who are committed to the need to protect and preserve matrimonial institution and dedicated to promote the welfare of children shall be selected for appointment as judge of family court.[20]In practice, most of the judges in family courts are appointed by transfer of District and Sessions Judge where they are accustomed to apply adversarial approach in adjudicating disputes. Sudden transition to adopt non-adversarial approach as necessitated by the Act in resolving family disputesis not easy unless the judges themselves express their concern for such transformation.[21]As a matter of fact, district judges who are at the age of their retirement are also appointed in the family courts which defeats the aim of Act.[22]Criteria adopted in such appointments are more beneficial to presiding officers than to litigants of proceedings as such presiding officers by the time gets accustomed to the functioning of family courts either get transferred or get retired.[23]
Since family disputes are sensitive in nature and involves sentiments, love and affection, social status, interests and privacy of spouses and children, therefore, such parties are in need of therapeutic approach and a good counselling instead of absolute legal remedy determining their rights and liabilities. To deal with the cases such approach, the Act evidently authorises the family courts to employ the services of all or any of the people or organizations or agencies which could help assist the court to achieve objectives of the Act i.e. ‘preservation of marriage’ and ‘promotion of the interests of children’. In the case of RomilaJaidevShroffv. RajnikantShroff[24] Bombay High Court confirmed that the family court is free to take assistance of institutions or organisations which are engaged in social welfare and may also allow the persons to associate with the court who are committed in promoting the welfare of family. Thus, primarily, burden lies on the courtto counsel the parties and provide an appropriate solution which is in the interest of all and it becomes a win-win situation for both the parties. The Act authorises the judge of family court to take assistance of social welfare agencies, medical and welfare experts etc. as well as non-judicial personnel including counsellors and other officers attached to the court, for the amicable settlement between parties and for the welfare of family. Such assistance enables the court to understand social, emotional and behavioural aspects of the parties to dispute.[25]The court with the assistance of medical experts could also deal with issues concerning impotency of husband or frigidity on part of wife.[26]Therefore, ancillary services form an integral part of family court which gives assistance to the courts to perform their duties effectively by identifying the real issues of parties through personal interaction with them and to suggestacceptable solutions rather and aggravating the conflicts.
The dispute resolution method of ‘Conciliation’ has been adopted as a part of non-adversarial approach. The Act makes it mandatory for the court to refer parties to the counsellor immediately after the institution of proceedings for the amicable settlement between parties.During counselling sessions, it is the duty of counsellors to adopt humanist approach and ensure that parties to family disputes are apprised under congenial environment than the inimical atmosphere of traditional courts.In Ashok ShamjibhaiDharodv. Neeta Ashok Dharode& Another[27]the Bombay High Court remarking on the qualification and role of counsellors stated that the counsellors are the trained persons and they are authorised to interview relatives, friends and other acquaintances of the party including the minor child. Whenever the presiding officer of the family court deems necessary, he may seek assistance of the counsellor and can even ask for his report before passing any orders. Although the counsellors have been given an important role to play under the Act but as a matter of fact, majority of counsellors do not take much interest in carrying out their duties effectively. The reason for such disinterest is nature of their appointment. In some of the family courts, counsellors are appointed on part-timebasis with consolidated salary per month while in other family courts, a panel of mediators is constituted who are paid case to case basis. Working as a formality, it was observed that many of the counsellors do their job hastily where they apply undue pressure on the parties to settle their disputes quickly which may not always be in the interest of parties or the children.
Although the judges have been strengthened by the assistance of counsellors and other welfare organizations in carrying out its duties effectually but with respect to the services of lawyers, the Act restricts their assistance like in traditional courts. Though the purpose of restriction was to prevent the parties from exploitative role of lawyers in the form of exorbitant litigation fees, adopting manipulative tactics to delay the proceedings etc[28]but after the case of LeelaMahadeo Joshi v. MahadeoSitaram Joshi[29] the lawyers were permitted to represent the parties in the court. The court observed:
“Adjudication of a complicated or highly contested matrimonial dispute in the light of law and interpretation of provisions by different courts over a period of time, would require assistance from advocates. The uneducated and poor litigants are being totally handicapped in the conduct of their cases for want of legal assistance. Even the educated and the rich find it difficult to follow court procedures. In the absence of convincing reasons, permission of representations by lawyers ought not to be refused.”
Thus, the people who are illiterate or not able to understand the complex procedure of courts or who belong to marginal section of society and find it difficult to access the family courts need to be assisted by lawyers.
Loopholes in the working of Family Courts:
The establishment of family courts was a part of the trend of legal reforms concerning women. The Act was introduced with a purpose to ensure maximum welfare of society and protecting the dignity of women in the courts. It aims for speedy settlement of disputes by adopting non-adversarial methods relating to family matters through non-adversarial and multidisciplinary approach. However, like any other system there are certain issues which become a matter of concern when it comes to working of these courts:
- The courts were established to adopt informal procedure for speedy disposal of cases but study shows same formal and technical procedure is followed by the courts in its working which defeats the purpose of the Act.
- Although the Act restricts the role of lawyers in the family court presuming that their interference holds back the parties to dispute in amicable settlement but unfortunately, a gap has been observed between presumption and practice because of legal technicalities.
- The Actputs an obligation on the courts to make efforts to ‘preserve the marriage’ which gets the matter delayed unreasonably when neither party to marriage ready to preserve the same nor ready to separate amicably.
- Counsellors play a very important role in assisting the court where sufficient time, patience and expertise is required in each counselling session but study shows that neither there are good number of counsellors in the court nor they are properly trained. Also because of their temporary nature of job, counsellors keep on changing frequently.
- Tenure of the judges appointed to the Family Court is another major concern in the smooth functioning of family court. By the time they get accustomed to the informal approach, they get transferred to another court. Moreover, judges appointed do not have any special experience in dealing with family matters.
- Although the Act enables the court to establish its own procedure to settle the disputes amicably but in absence of any prescribed procedure, few courts follow informal procedure while majority of the courts adopt informal procedure.
Recommendations and Suggestions
In view of the above discussed analysis, following suggestions are recommended to make functioning of family courts more effective:
- Persons having experience or expertise in dealing with disputes relating to family matters should be appointed as judges of the family court. Rather the family shall be reconstituted on the same lines of Tribunal consisting of a judge from legal background and a member from social or psychological background.
- Minimum tenure of five yearsshould be fixed for the judges of family court, which will be in the interest of both the court as well as of litigants asit will give ample time to judge to make significant contributions in simplifying the procedure and bringing meaningful changes in the working of family court.[30]
- As each individual is different from the other and has different psychology, skills, preferences, family values from the other, similarly, every judge of family court has different family values, different family background and different perceptions towards gender equality from the other judges of family court. Therefore, to constitute a base and to ensure uniformity in the working of court, judges should be sensitized through training and orientation programmes.
- Counsellors having adequate knowledge and experience in handling sensitive matters should be appointed on regular basis and they must be given proper training to deal with the litigants with humane approach.
- Uniform rules and procedures should be established so as to do away with rigid rules of procedure and make it easily accessible to the litigants. In addition, a common set of model forms (summons etc.) should also be drafted so that litigants could use them without the assistance of legal experts.
- The aim of the Act should be to settle the matters speedily and amicably irrespective marriage results in separation or reunion. Thus the term mentioned in the Act ‘preservation of marriage’ be replaced with the ‘settlement of dispute amicably’.
Conclusion
In India,marriage is considered more than merely a wedding ceremony, similarly, divorce cannot be said to end everything about marriage. Though legally it ends the relationship of two people where they are no more obliged to stay together and fulfil their marital obligations but it cannot suspend the relationship of the children created through this bond. The obligation of either spouse does get suspended with the dissolution of marriage. Therefore, family courts take time to preserve the marriage keeping in mind its long time consequences but this is also a fact that parties generally approach to the court at the last stage after exhausting all remedies at the community or kinship level, therefore, the courts should consider such efforts and resolve the dispute within a specific time limit.
[1]N.V.Paranjape, Law relating to Arbitration and Conciliation in India 264 (Central Law Agency, Allahabad, 2016).
[2] M Rama Jois, “Be Immortal” Lawyers Update 7 (2015).
[3] Smt. DurgabaiDeshmukh was a noted lawyer, social worker and politician.
[4]DurgabaiDeshmukh “Chintaman and I”, Allied Publishers Private Limited, 35 available at :https://archive.org/stream/in.ernet.dli.2015.172432/2015.172432.Chintaman-And–I_djvu.txt ( last visited on October 3, 2019).
[5]Ibid.
[6]Supra note 4.
[7]D.C.Manooja, “The Family Courts” 88 AIR 115 (2001).
[8] Code of Civil Procedure, 1908 (5 of 1908) Order XXXII-A Suits relating to Matters Concerning the Family
- Application of the Order.-(1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family……. any other law for the time being in force”.
[9]Available at:http://ncw.nic.in (Last visited on May 12,2019).
[10]Available at:http://kamrupjudiciary.gov.in (Last visited on May 14, 2019).
[11]RomillaJaidevShroffv.JaidevRajnikantShrof, f II 2000 DMC 600 FB.
[12]The Family Courts Act, 1984 (Act 66 of 1984), s. 3.
[13] AIR 1990 MP 246 DB.
[14]Ibid.
[15]Supra note 13 at s. 4(1).
[16]Supra note 13 at s. 4(3)
[17] The Family Courts (Other Qualification for appointment of Judges) Rules, 1988, rule 2
[18]Supra note 13 at s. 10(3).
[19]Supra note 13 at s. 12.
[20]Supra note 13 at s. 4(4).
[21]Flavia Agnes, Family Law: Marriage, Divorce and Matrimonial Litigation 290 (Oxford University Press, New Delhi, 2011)
[22]Id. at 291.
[23]Ibid.
[24]AIR 2000 Bom 356.
[25]MeharchandNanavathy, “Family Disputes and Role of Social workers and lawyers in family court’ in RatnaVerma, Ed. Family courts in india: An appraisal of strength and limitation, inter india publication, New Delhi, 1997, p 100
[26]R. Durga Prasad v.Union of India.
[27]AIR 2001 Bom 142.
[28]Supra note 21 at 294.
[29]AIR 1991 Bom 105.
[30]Supra note21.