User:Vaishali GJ/Family Courts Act 1984

The Family Courts Act, 1984 was enacted to provide for the establishment of Family Courts in India for speedy conciliation/ settlement of matrimonial disputes. The Family Court addresses a wide range of issues related to family-related and domestic relations. They include marriage, divorce, grounds for divorce, adoption, child custody, maintenance, visitation rights among others.

Context & Historical Background
In 1974, in its 59th Report, the Law Commission of India emphasised the need for separate courts for matrimonial matters and suggested changes in the Civil Procedure Code. This led to the amendment in 1976 with the addition of Order XXXII-A (32-A) which dealt with 'Suits relating to matters concerning family'. While a number of provisions were made for a separate system, nothing significant developed.

The Act came into force after a push from women's movement that was already on rise in the 1980s in India and in line with the enactment of various other acts that were passed for achieving the object of gender justice.

Durgabai Deshmukh is credited for being the first to emphasise the need to set up Family Courts after she got the opportunity to study the same in china during her visit in 1953. She brought to the notice of Justice M.C. Chagla and Justice P.B. Gajendragadkar of the Bombay High Court (at that time) and also with Jawaharlal Nehru.

The idea was to set up courts with special expertise in matrimonial law and dispute resolution to deal with matrimonial litigation and shift the same from general civil and criminal courts. This also could in turn ensure 'less formal and less intimidating' process for litigants and bring in speedy justice and facilitate conciliation and settlements. This, it was believed, would work in favour of women who were (and still are) more than often at the receiving end of discrimination.

Arrangement of Sections
It has a total of 6 chapters and 23 sections.

Features of the Act
Ease of access to justice: The object of the act is for making the entire process of seeking redressal and settlements in matrimonial disputes simple, speedy and accessible. The Act expressly lays emphasis on not having extremely formal procedures, no lengthy evidence recording (Section 15) and calls for orders and judgements to be given out in simple, concise language specifically (Section 17). It has been set up with an aim of functioning as an Alternative Dispute Resolution mechanism.

Jurisdiction: Family Courts fall under the category of District and Sessions Courts and are subordinate to the High Courts of the respective states. It has the same powers as a civil court in India. Section 7 of the act spells out the different issues which the court can adjudicate upon: i) for a decree of nullity of marriage, ii) on the validity of a marriage and marital status of a person, iii) property matters between parties to a marriage, iv) for an injunction or order in circumstances arising out of a marital relationship, v) on legitimacy of any person, vi) for maintenance, vii) guardianship of the person, or access to any minor.

In camera proceedings: Section 11 of the act makes provision for proceedings of the trials to be held 'in-camera' or behind closed doors recognising the need for it for private, sensitive matters.

Lawyers: As per Section 13 of the Act, there is no provision for right to legal representation in the family court, without the judge's permission. This was conceived with the intent of curbing the exploitative tendencies witnessed in the courtrooms and reduce reliance on lawyers and thereby save fees that one might have to shell out to fight a case in court. Along with this, there is a provision for appointment of amicus curae to support and guide the court. However, this provision did not have its intended effect and with the ruling in a landmark case, Leela Mahadeo Joshi vs Mahadeo Sitaram Joshi, 1991, Bombay High Court, the trend of permitting legal representation became commonplace.

Support Mechanisms: The Act provides for associating with social welfare organisations (Section 5), appointment of marriage counsellors (Section 6), mediation etc. which are meant to act as support mechanisms for the parties to deal with the entire process legally and socially. Although there is criticism that the provision of marriage counsellors, mediation and access rooms as part of the Family Court complex itself is not available everywhere.

Number of Family Courts in India
Section 3(1)(a) of the Act mandates every state government to set up a family court in a city or town that exceeds population of more than 1 million. The state government can set up family courts in other areas as it sees fit. As a result, the institution of family courts has a large variance among the states. Only 19 states and union territories had set up family courts before 2005; Rajasthan being the first to do so in 1987 and Maharashtra and Karnataka being the only states that set up family courts within the first 5 years of the central enactment.

As of 31st December 2018, there are 535 functional family courts in India.

Criticisms/ Gaps in implementation
It has been criticised that the the object stated in the act is the preservation and maintenance of marriage as an institution while the focus should have been gender justice.

As of May 2016, the number of pending cases in the various functional family courts across the states and union territories was 672075. Uttar Pradesh, Kerala, Bihar, Madhya Pradesh, Maharashtra, Gujarat, Delhi, Karnataka, Rajasthan and Odisha were top ten states / union territories in terms of number of pending cases.

There is considerable variation in how the family courts are set up and function across states. At a conference held in 2014, the issue of counsellors was discussed. It was found that there are far less counsellors available against the number of cases that were handled. Moreover, only Maharashtra and Karnataka had full time marriage counsellors who were trained with requisite skills. In most states, they are hired on a contract basis, paid an honorarium and that too not on time. Justice Abhay Oka pointed out that currently District Judges preside over Family Courts which is acceptable by law but not proper. He highlighted the need for appointment of Special Judges and Pre-litigation counselling centres.

Efforts for improvement in implementation
Regular regional and zonal conferences are held by the various state judicial academies on "Sensitisation of Family Matters" with various judges from lower courts and lawyers. Supreme Court Committee for Sensitisation of Family Matters (chaired by Justice Joseph Kurien in 2018) announced a nation wide survey to be conducted to understand status of family courts in every district.

The state of Maharashtra, especially Mumbai district, has partnered with institutions like Tata Institute of Social Sciences to set up initiatives like Muskaan which focusses on providing counselling and care for children whose parents are disputing in a family court on the court premises itself. Since 2018, Sukoon Stress Management Centres have also been set up at a few district family courts and at the Bombay High Court as well to provide counselling and mental health support to any litigant in the family court.