The Family Court
It is now realized practically all over the world that litigation in regards to any matter concerning family, whether divorce, maintenance and alimony, custody, education and financial support for children or the trail of juvenile offenders should not be viewed in terms of failure or success of legal actions but as a social therapeutic problem needing solution. It should be viewed as litigation in which parties and their counsel are engaged in resolving family conflicts where humane considerations overweight everything else.
The resolution of family conflicts requires special procedures designed to help people in trouble, to reconcile and resolve their differences, and, where necessary, to provide assistance. This action demonstrates that the traditional adversarial procedure has to be modified and replaced by a less formal procedure. In our system today, the family matter is entrusted to the district judge who is well versed in ordinary civil and criminal trials.
He tries family matters in the usual manner with the normal adversarial procedure. In other words, the judge who tries claims for breach of contract or tort, claims for motor vehicle accidents, and crimes like rape and murder also try all matrimonial matters including custody of children and spousal maintenance. It is now realized that adjudication of family matters is entirely a different matter. It has a different culture; it has a different jurisprudence.
The court adjudication of family disputes should function in a manner that it may tend to conserve and disrupt the family life; it should be helpful and not harmful to individual partners and their children; it should be preserved rather than punitive to family and marriage. It is, therefore, accepted that the adversary system promotes ritualistic and unrealistic to family problems. The present system offers on legal protection to children.
They are not represented by the counsel, and the court does not have enough information to determine their best interest. More often than not, children are caught in the inter-spousal conflict and become pawns, weapons and ultimately victims. The fact of the matter is that adversarial process precludes reconciliation and conciliation of inter-spousal and inter-parental conflicts.
Thus, no court which is engaged in finding out what id for the welfare of the family, whether a marriage has broken down or not, which spouse should have the custody of access to children or which spouse needs, support rest content with the assertions and contentions of the parties and evidence led by them to prove or disprove their assertions and contentions.
The court engaged in this task requires a less formal and more active investigation and inquisitional procedure In other words, it is not a litigation in which parties and their counsel are engaged in winning or drafting a legal action, but an inquisition in which the parties, social workers, lawyers, officers, psychiatrists are engaged in finding out a solution to familial problems.
The concept of family court thus implies an integrated broad-based service to families in trouble. It stipulates that the family court structure should be such as to stabilize the marriage, to preserve the family, and where a marriage has broken down irretrievably, to dissolve it with maximum fairness and minimum bitterness, distress and humiliation. The family court system visualizes assistance of specialized agencies and persons.
Status Of Family Court
The Family Courts Act, 1984, at the first instance, stipulates for the exact purpose of the establishment of family courts for those towns and cities whose population exceeds one million. It also lays down that the State Governments may also set up family courts for others areas. Appointment of judges of family courts is to be made by the State Governments with the concurrence of their High Courts.
A family courts may consist of one or more judges. Where there is more than one judge of a family courts, each judge in competent to exercise all or any of the powers of the family court. Where a family court has more than one judge, the State Government with the concurrence of the High Court will designate one of the judges as the principal judge and any other as additional principal judge.
The retirement age of the judge of the family court, like that of the judge if the High Court, is 62 years. The terms and conditions of services and emoluments of judges are to be determined by the State Governments in consultation with the High Courts.
It appears that the family Courts act stipulates to confer on the family courts a status like that of the income-tax tribunal. It is higher than that of the district judge and lower than of the High Court; appeals from its decision lie to the Hight Courts.
Section 4(3) of the Act lays down the qualification of the judges of the family court. A person who has at least seven years' experience as a judicial officer or as a member of the tribunal or who has held a post for the exact purpose of that duration under that Central or a State Government requiring special knowledge of law, or who has been an advocate of a High Court for at least seven years may be appointed as judge of family court.
Other qualifications may also be laid down by the Central Government in consultation with the Chief Judice of India. Women will give preference for the exact purpose of the appointment as judges of the family court. Section 4(4)(a) also lays down that "every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected."
This provision certainly conveys that we have accepted the concept of family court, though it will be a very difficult task to find out such a person. In our submission, the judges of family court should also have adequate knowledge of psychology, sociology and social work.
It is evident from the provisions of the Act that those persons who are engaged in research and teaching of family law in universities and research institutions, and are consequently experts in family law, are not eligible to be appointed as judges of the family court. This seems to be an omission made inadvertently. Particularly when the employees of the Central and State Governments who are engaged in an employment needing special knowledge of law are eligible.
This obviously means that for the appointment of judges of the family court, a person need not have any experience either as a judge or as an advocate. But then why omit those who are engaged in research and teaching of family law? One of the two things may be done: either the university employees may be deemed as Central or State Government employees or Section 4(3)(a) may be amended by adding a clause "or those who are engaged in teaching of or research in family law for at least seven years."
Jurisdiction Of Family Court
There is some controversy as to what matters come within the jurisdiction of the family court. It is agreed upon that all matters directly pertaining to the family, such as matrimonial causes, maintenance and alimony of spouses, custody, education and financial support to children, settlement of spousal property, and guardianship and custody of children should come within the jurisdiction of the family court.
Some hold the view that the para-family matters, such as dowry, inter-spousal assaults and torts, familial assaults and other criminal matters between the spouses and children, and inter-spousal and inter-familial contracts and torts should also fall within the purview of the family court. Parliament has opted for the former view.
Explanation to Section 7(1) lists the following matters:
a suit or proceeding between the parties to a marriage for a decree of nullity, restitution of conjugal rights, judicial separation and divorce;
a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them;
a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
a suit or proceeding for a declaration as to the legitimacy of any person;
a suit or proceeding for maintenance; &
a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
The family court has also been conferred jurisdiction for passing orders for maintenance of wives, children and parents. Hitherto, this jurisdiction was conferred on a magistrate of the first class under Chapter IX, Code of Criminal Procedure, 1973 (Cr. P.C.). Under Section 125 of the Code, if any person having sufficient means neglects or refuses to maintain, he may be ordered by the magistrate to provide maintenance for:
his wife (including a divorced wife who has not remarried) unable to maintain herself, or
legitimate and illegitimate minor children unable to maintain themselves (major children are also to be included if they are unable to maintain themselves on account of physical or mental abnormality or injury), and father or mother unable to maintain himself or herself.
The jurisdiction on the family court can also be conferred in any other matter under a statute.
One wishes that para-family matters were also included under the jurisdiction of the family court. At present, it has no jurisdiction on any matter pertaining to dowry or juvenile offenders.
The Family Courts Act has precedence over other statutes including those of codified Hindu Law.
The concept of family court essentially implies the discarding of adversarial procedure.
New, less formal, rules have to be framed. In our submission:
The rules should be framed in simple language clearly indicating the whole range of procedures, from the commencement of an action to its conclusion, including the means of enforcing judgments, decrees and orders.
Flexibility of rules should be the hallmark of the new procedure so that diverse, at times complex, problems of familial conflicts are covered.
As far as possible, standard forms should be provided for various types of proceedings and these forms should be framed in such a manner as to be adaptable to the circumstances of each case. (iv) Pleadings should be simple and should not have the traditional fault-oriented approach.
Pre-trial processes should be designed in such a manner as to provide dignified means for the parties to reconcile their differences or to arrive at amicable settlements without the need of trial.
Facilities for legal advice should be made available to each litigant so that he or she may become aware of the right and responsibility, and, where, children are involved, an early opportunity should be provided to ensure that their rights are adequately protected.
Issues between the parties should be determined without any prejudicial delay. This is particularly significant when the court is concerned with the placement of children.
The language, conduct, documentation and legal representation should be simple, shorn of all technicalities.
Pre-trial documentation of the pleadings should be such that issues between the parties are clearly defined. This will help avoid frivolous litigation and encourage pre-trial debate and settlement.
One of the objectives of the family court system is to encourage and enable the parties to go into a process of reconciliation, failing which, the family court judge should have power to pass consent orders, if parties have been able to come to some settlement without any formality of formal hearing or trial of issues.
The Family Courts Act seems to opt for a less formal procedure. Although Section 10 of the Act makes the procedure laid down under the Code of Civil Procedure, 1908 (C.P.C.) applicable to family court proceedings, it is also laid down that the family court is free to evolve its own rules of procedure, and once the family court lays down its own rules of procedure, they will override the rules of procedure laid down in the C.P.C. or the Cr. P.C. (such as under Chapter IX of the Code).
The Act itself contains some provision which indicates the informality of the procedure. Thus, the family court may receive as evidence any report, statement, document, information or other matter that may assist it effectually in resolving a dispute, irrespective of the fact that the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. It is not obligatory on the part of the family court to record the evidence of witnesses at length.
It would be enough if the judge records or causes it to be recorded a memorandum is required to be signed by the judge and the witness, and once that is done, it will form part of the record of the case. Where the evidence of a person is of formal character, it may be given by affidavit and it will constitute part of the evidence in the case.
The same informality is maintained about the judgment of the family court. A judgment of the family court should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. 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 in accordance with the convenience of the party concerned.
No appeal lies against the interlocutory orders. Similarly, no appeal lies against the decrees or orders passed with the consent of the parties. Otherwise, an appeal lies to the High Court, both 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. No second appeal is provided. Of course, an appeal with the special leave under Article 136 will lie to the Supreme Court.
Proceedings In Camera And Exclusion Of Lawyers
It is now a part of the concept of family court that confidentiality of the court record should be maintained and if the parties so desire or the court so thinks proper, the proceedings should be in camera. Section 11 of the Family Courts Act makes it obligatory on the part of the court to hold the proceedings in camera if any party so desires. These may also be held in camera if the court so deems fit.
However, one should not confuse the confidentiality of the proceedings with secrecy of proceedings. In any democratic system, people are entitled to know the way the justice is administered and, therefore, no court should operate in secrecy. Constructive criticism, research and proposals for reform can only come from the knowledge of the ways and procedures by which the family court operates.
The Family Courts Act dispenses with the service of the lawyer. Section 13 makes it abundantly clear when it lays down: "Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner." However, the family court may seek the assistance of a legal expert as amicus curiae whenever it considers that to do so is necessary in the interest of justice. The provision is not ultra vires of the Constitution.5
In Kailash Bhansali v. Surender Kumar, husband filed an application to be represented by legal practitioner and wife was claiming harassment on the part of husband. Order appointing legal practitioner for both was passed which was held by the High Court to be improper.
Training Of Personnel Of The Family Court System
India has taken the necessary first step in the direction of establishing the family courts. But much more needs to be done before the family court system can be brought to effective functioning. A vast manpower of trained persons to man the family courts and the auxiliary services would be needed. It should be an essential part of the unified family court system that there should be in existence a training and continuing education programmed in which the family court judges, the staff of support services and lawyers should be fully involved.
The personnel of the family court system should have some training in family law, sociology, psychology and social welfare before being called upon to discharge their functions. The entire personnel of the family court system should, at regular intervals, participate in continuing the education programmed so that they have better understanding of family conflicts and their appropriate disposition.
Need for continuous training and research in family law matters and allied subjects is imperative for the success of the system. This will require the establishment of some permanent bodies or institutions. We may have family law training centers in each State and an institute of family court system at the national level.
If family court system is to succeed, we should proceed to make adequate arrangements and provide adequate facilities for the same. We should immediately embark on the training of the personnel of the family court system so that by the time the courts come into existence, we have no difficulty in manning the same. Otherwise, it will be no more than yet other experiment that failed.