Family Court: Name big philosophy small
Divorce, maintenance, custody of children and trial of juvenile offenders, all these things are not the normal issues in one’s life but act as a social problem and therefore, it requires a social therapeutic treatment. Earlier, there was no court or no litigation in respect of matter concerning the above issues. No court was engaging in finding out the betterment of the family in respect of the broken marriage, custody of the children or maintenance of the spouses. In many western countries, family courts are already functioning.
The concept of Family courts implies an integrated broad based service to families in trouble. It is meant to be made for preserving the families and stabilizing the marriages. Advisory litigation is hardly appropriate for such a system and this system visualizes the assistance of the specialized persons and agencies.
For achieving the above purpose and objectives, the Parliament has passed the Family Courts Act, 1984. It will come into force only when the Central Government by notification in the Official Gazette, and different dates may be appointed for different States.
In M.P.Gangadharan Vs. State of Kerala,[i]the court is of the opinion that the Family courts should be established not only because it is being provided in the Act but the state must perform his duty to provide all the infrastructure to the forum of dispute resolution.
Status of Family Courts
Under the Family Courts Act, 1984, it has been provided that there should be set up of a Family Court for a town or city whose population exceeds one million. There are also provisions for the establishment of Family Courts in the other areas too. It may consist of one or more judges. In case of involvement of more than one judge, each judge is entitled to exercise all or any of the powers conferred on family court and one of them will be designated as principle judge and another as additional judge.
In the family courts, the special preference is given to the woman in the appointment of judge. It is also laid down that “every endeavour must be made to ensure that the person committed to the need for the protection and preservance of marriage institution and to promote the welfare of the children and qualified by the reason of their experience and expertise to promote the settlement of disputes through conciliation and counselling are selected.
The judges of the family courts must have some knowledge of psychology, sociology and social work and such qualification should be prescribed by the Central Government.
Jurisdiction of Family Courts
All matters concerning the family law matters such as marriage, matrimonial cause, maintenance and alimony, custody, education and support of children, settlement of spousal property and guardianship and custody of child’s person and property, come within the jurisdiction of the family courts. But, the court has no jurisdiction in the para-familial matters such as inter-spousal assaults, familial assaults and other offences of criminal nature between the spouses and their children, inter-familial torts and contracts.
Procedure of Family Court
The procedures in these matters are required to be simple and should indicate the whole range of procedures from the commencement of action to its conclusion, including means to enforce orders and judgments. Procedure needs to be flexible so that at diverse times the complex familial conflicts get resolved; the standard forms to meet all the situations should be drafted; proceedings should be stay away from the traditional adversary approach. Pre trial processes should be laid down, free advice should be available whenever there is involvement of children and the issues should be determined without any prejudicial delay.
The language, conduct, documents and legal representation should be simple without any technicalities. Section 10 of Civil Procedure Code makes that the procedure laid down in this should be applicable to the family court. Although, family courts seem to opt for a less formal procedure. Under section 10, it has been laid down that the family court has power to evolve its own rule of procedure which will override the rules of procedure laid down in the Civil Procedure Code and Criminal Procedure Code whenever made applicable.
The family court judges need not to record the full evidences, he can just prepare a memorandum of substance of evidence. All formal evidence will be tendered by affidavits, though whenever necessary, a deponent may be orally examined. The judges should give a concise statement of the case, the points for determination, the decision and reasons for the decision.
Camera proceedings and Exclusion of Lawyer
It is well known to everyone that nowadays many countries are accepting that the proceedings related to above matters should be done in camera and the confidentiality of the court record should be maintained. Section 11 of the Act makes the same obligatory if the party wishes to do so. Here confidentiality does not mean secrecy.
Also in many countries, there is a strong opinion that the lawyers should be excluded from their services in the family courts and “do it yourself” should be propagated. But the exclusion of lawyer’s service may undermine the rights of the parties and may causes harm to them. Section 13 of the Act favours the dispensation of service of the lawyer, though the family court may seek the assistance of a legal expert as amicus curiae whenever it considers necessary in the interest of justice. In Leela Vs Mahadeo[ii] the Bombay High Court has expressed his view that the present section does not bar the presence of the advocate and wherever necessary, the court should freely make available the service of the advocate.
Support of Auxiliary Service
As it is well known that the family courts are less formal, so it can’t succeed unless it has a well organised support system for helping it in reconciliation, conciliation and to lessen the adversial atmosphere. An auxiliary service could include family counselling and reconciliation service, investigational service, legal aid service and enforcement service. The family counselling service and conciliation service is a three tier service; pre-marital counselling and reconciliation and conciliation counselling and post-adjudicatory counselling.
The role of reconciliation and conciliation counselling is to promote reconciliation whenever possible and wherever reconciliation is not possible or desirable, it is to secure a amicable settlement of all those issues which need solution when a marriage has broken down. The role of conciliating counselling is to clarify the issues and help parties in arriving at the settlement. The post- adjudicating counselling service will help parties after they have got the decree of divorce.
Decree of Family Court- Civil Court’s Jurisdiction
A civil suit to declare the decree of family court as null and void is not maintainable. Family court’s jurisdiction will have precedence over matrimonial and Family law statutes.
In a nutshell, the procedure adopted by the family court works upon the natural justice and it’s less formal procedure has made it weaker. It is not being able to enforce all the issues. Although, it needs auxiliary services to work efficiently. It requires vast manpower of trained person and to work more efficiently, it requires strict enforcing authority.
[i] 2006 SC 2360.
[ii] 1991 Bom.105.
Author: Prity Kumari,
Central University of South Bihar, 2nd year