An Overview of Family Courts in India
Author By Hitika Arora
Marriage is a practice which is considered as a sacred practice in the country, but with the dynamic time change, marriage has become a subject of Big Judicial scrutiny, that's why the law of Family court was considered. The Family court Act, 1984 was enacted on 14 September, 1984. It was required for the necessity of family court with an object of promoting conciliation and saving their disputes relating to family affairs and marriage. The matrimonial matters which are dealt in the family courts in India in brief are- nullity of marriage, judicial separation, restitution of conjugal rights, divorce, declaration as to the validity of marriage and property of the spouse to name some few.
In the Western countries, Family Courts are in working. The courts tied up in these matters demand a less formal and more active denoting and inquiring procedure. So, it can be said that it implies that it is not a lawsuit in which parties are tied up in attaining win or defeat in a legal action but they all are engaged in concluding answers to the problems engaged in the court. Thus, the notion of the family court implies as a service to the families seeking for solutions. It specifies that the Family Court Structure is meant to preserve the family, help to stabilize the marriage or help the couple to part their ways in equal justice served to both of them by the court of law. For Such a procedure, the rivalry litigation system is hardly appropriate. Such a system requires specialized persons and agencies.
Further, marriage as a practice has become the subject of a great Judicial Review. There are various judicial norms handling marriage and its various features. As per studies conducted in India, 40% marriages are heading towards divorce. There are also cases of misuse of laws like Section 498A of the IPC, Protection of women from Domestic Violence Act, Section 125 of Criminal Procedure Code. There are issues like maintenance or allowance which is a subject of big dispute and causes intimidation to the families. And further, the problem increases as the personal issues get tied up with legal issues and leads to unneeded extension of the cases.
On the contrary, the act was expected to ease the tension of the disputes of the family to ensure the maximum welfare of the dignity of women and society. Commonness of the Patriarchy laws and oppressive social application over centuries have made it difficult for the women of India to prevail in justice and basic human rights. The family court was first emphasized by the late Smt. Durgabai Deshmukh. She made the proposal to the Prime Minister Jawaharlal Nehru to set up family courts in India.
How do the family courts in India work? The basic process followed by the family courts to settle the disagreement between the parties is usually the Civil Procedure code and Criminal Procedure code or any other procedure as laid down by it. The obvious first step is to bring about conciliation and settlement of issues without the need of monotonous legal action. By bringing the reference of the dispute to a marriage or relationship counselor. If the dispute is not resolved even after Conciliation, it is taken up for trial. It is, in fact, a task of the family court to make attempts for settlement. The Family Court Act also provides for that the trials to be held in camera, for example in case of testaments by children to protect their solitude and secondly, to seek assistance of certified medical and welfare experts or any person who is professionally involved in women, children and social court and lastly the court can also take the advice of amicus curiae* as and when required.
A Family Court has jurisdiction in both Civil and Criminal matters. Under civil matter, it deals with any Suits and proceedings related to matrimonial issues, spouse property, the conformity of any person or guardianship of the person or custody of or access to minors.
Under criminal matters, it has jurisdiction over orders related to maintenance of wife, Children and parents described under Chapter IX of CRPC*. Any trial or proceeding of the above mentioned points should necessarily be made by family court not including the adjudication of the District Court or any magistrate. Also, any suit regarding matrimonial differences which is already pending before any other court or magistrate should be immediately transferred to the Family Court.
The family courts have been proved as one of the most brilliant mechanisms for solving matrimonial and Family disputes. Many marriages have been secured, many women and children have been given their basic rights and many family disputes or disagreements have been resolved.
Though, the result of family courts have been mixed, working out of certain amends such as uniform procedure, improvement in the structure and strict law have helped to improve the functioning of the court.
The Family Courts Act, 1984