THE FAMILY COURTS ACT, 1984

Regal Mentor Mob-9995400709

TOPIC I

INTRODUCTION

The latter half of the 20th century has witnessed significant

developments in the field of family law, driven by evolving societal norms

and changing perspectives on marriage and relationships. The traditional

concept of marriage as a lifelong commitment has undergone substantial

transformation, with increasing emphasis on individual rights, gender

equality, and personal freedom. As a result, marital relationships have

become more complex and demanding, requiring partners to navigate

various challenges, including financial responsibilities, emotional

compatibility, and career aspirations. The rise in marital discord has led to a

growing acceptance of divorce as a legal remedy, even in societies that

historically opposed it, such as among Hindus and Christians. Legal

frameworks worldwide have adapted to these shifts, introducing provisions

for divorce based on mutual consent, irretrievable breakdown, and other

grounds, reflecting a more pragmatic approach to resolving marital conflicts.

However, divorce is not merely the conclusion of a troubled marriage;

rather, it marks the beginning of a new phase filled with emotional, social,

and legal challenges. While it offers individuals an opportunity to escape an

unhappy or dysfunctional relationship, it also brings forth issues related to

child custody, financial settlements, and emotional well-being. The

dissolution of marriage often affects not just the couple but also their

children, extended families, and social circles. Courts and legal systems have

thus increasingly emphasized mechanisms like mediation, counseling, and

alternative dispute resolution to minimize the negative impact of divorce.

Societal attitudes toward divorced individuals have also evolved, with

greater acceptance and support systems emerging to help them rebuild their

lives. Despite the challenges, the recognition of divorce as a legitimate legal

recourse signifies progress in ensuring personal autonomy and justice in

marital relationships. It does not guarantee marital peace, harmony,

fulfillment and growth. There are problem marriages and troubled marital

life but even in such cases separation or divorce may not be always desirable

as a separation or particularly a divorce leaves a scar on the personality of

both the parties.

Rising Matrimonial Litigation and Its Challenges

Litigation in matrimonial matters has been steadily increasing,

particularly in urban areas where changing social dynamics, financial

Manju Goel & Nirmala Sherjung, Marital Disputes and Counselling. (APH publishing 1997)Article

“Some issues in Matrimonial & Family Counselling” By Dr.Deva Prasad Sen Mazumdar. P.16

pressures, and evolving gender roles contribute to marital discord. Unlike

other civil disputes, matrimonial cases often involve deep emotional distress,

making them more complex and sensitive. Issues such as domestic violence,

infidelity, child custody, alimony, and property division add to the intricacy

of these cases. Due to the personal nature of such disputes, the evidence

presented is often detailed, requiring extensive documentation, witness

testimonies, and expert opinions. This leads to prolonged legal proceedings,

as courts must carefully assess the nuances of each case before reaching a

fair judgment. Additionally, the adversarial nature of litigation in family

matters can further escalate conflicts, making resolution even more difficult.

As a result, the number of matrimonial cases disposed of remains

significantly low compared to the rising number of new filings. The backlog

of cases continues to grow, with hundreds of petitions pending in family

courts for years. Delays in disposal not only increase emotional and financial

burdens on litigants but also hinder their ability to move forward with their

lives. Recognizing this challenge, many legal systems have introduced

alternative dispute resolution mechanisms such as mediation and counseling

to expedite settlements and reduce the strain on courts. However, despite

these efforts, the sheer volume of matrimonial disputes remains a pressing

concern, emphasizing the need for more efficient judicial processes,

increased awareness of legal rights, and a greater focus on reconciliation

methods to ensure swift and just resolutions.

The Need for a Therapeutic Approach in Family Litigation

Litigation involving family matters—whether related to divorce,

maintenance, alimony, child custody, education, or juvenile offenses—

should not be perceived merely as legal battles with winners and losers.

Instead, these cases should be approached as social and emotional issues that

require thoughtful and compassionate solutions. Family disputes often stem

from deep-seated personal conflicts, and their resolution demands a system

that prioritizes reconciliation over confrontation. The traditional adversarial

legal process, which pits one party against another, often exacerbates

tensions rather than alleviating them. Given the sensitive nature of family

disputes, a more therapeutic and solution-oriented approach is necessary,

one that focuses on the well-being of all involved, particularly children,

rather than solely on legal victory.

To achieve meaningful resolutions, family law procedures need to be

reformed to emphasize mediation, counseling, and less formal judicial

interventions. A rigid and prolonged legal process not only intensifies

emotional distress but also destabilizes the family structure, potentially

leading to broader social issues. The effectiveness and speed of legal

proceedings are crucial in maintaining balance within the family unit, as

unnecessary delays can prolong suffering and complicate relationships

further. The administration of justice in family matters, therefore, requires

special attention, with courts and policymakers adopting a more human-

centric approach that facilitates swift, fair, and amicable settlements. By

modifying traditional adversarial procedures and incorporating alternative

dispute resolution mechanisms, the legal system can better serve families

and contribute to a more harmonious society.

Family Courts

Family Courts are created to integrate and coordinate the various court

divisions into a single Court to address each of the numerous issues that

arise within families. They are specialised courts established for

maintaining welfare of the family by developing multidisciplinary

approach to resolve family problems within the framework of law.

Under the Indian judicial system till recently family matters were

entrusted to the district judges and magistrates, who are eminent in

These courts assume a twin function of securing the legal rights of the individuals and playing the role of

a guide, helper and counsellor to enable the families to cope with their problems and thereby establish

family harmony. In the absence of uniform civil code, family courts were seen as a step forward as it

intended to improve procedural laws by providing more flexible, unconventional and investigational

procedures aimed at bringing about reconciliation among the affected parties.,Ratna Verma, Family Courts

in India (1997), p.15.

ordinary civil and criminal trials. They adopted the usual adversarial

procedure even in family matters. The already overloaded district courts

and magistrate courts could not deal family matters expeditiously. The was

much delay in the disposal of matrimonial litigations.

Children were the most affected victims of matrimonial disputes. The

fate of them during such period was simply torturous causing adverse

psychological effect. In most of the cases they were used like shuttlecocks

by the litigating spouses. Most of the parents are least careful about the

psychological disturbances of their little kids.

In such a system the clients in the matrimonial disputes were forced to

approach a number of courts seeking remedy for their grievances. For

separation, one had to go to civil court, for getting maintenance to a

magistrate court etc. In case some property dispute is involved, one had to

go to another court. This was a most undesirable situation for a woman. It

was also a time consuming and tiring process. This system was not only

illogical but also leads to inefficiency and injustices.

The court adjudicating family disputes should function in such a

manner that it may tend to protect and not disturb family life. It should be

helpful and not harmful to individual partners and their children and it

should be preservative rather than punitive to family problems. The fact of

the matter is that the adversarial process prohibits reconciliation and

conciliation of inter-spousal and inter-parental conflicts. The court

engaged in this task requires a less formal and a more effective

investigational and inquisitorial procedure. In other words it is not

litigation in which parties and their counsel are engaged in winning or

defeating a legal action, but an inquisition in which parties, social workers,

lawyers and welfare officers, psychiatrists etc. are engaged in finding out a

solution to family problems. So, for the settlement of dispute between the

members of the family, there should be a procedure. The procedure must be

effective and speedy one. Otherwise the imbalance in the family unit may

bring trouble to the society as a whole. Hence administration of justice in

this field needs a special care.

Taking into consideration this special character of family and its

significance in the society, the Law Commission of India in its 59th report

in 1974 strongly recommended for the establishment of Family Courts in

India for dealing with the disputes concerning the family.

The main force

behind the establishment of family courts originated from women’s

movement, which brought to the focus anti-women bias within the law in

the courts. The concept of family court implies an integrated broad-based

Rajani Ram, “Judicial Approach to cases relating to Divorce under the Family Courts Act”, AIR (1999)10

(Jl.).

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

the marriage has broken down irretrievably, to dissolve it with maximum

fairness and minimum bitterness, distress and humiliation.

As the preamble says this is an Act to provide for the establishment of

family courts with a view to promote conciliation in, and secure speedy

settlement of disputes relating to marriage and family affairs and for

matters connected therewith.

It appears from the preamble that the main purpose of the Act is to

provide a conciliation machinery to matrimonial disputes or to provide

speedy decision and results to the litigation so as to free the spouses

quickly and to avoid any cumbersome procedure of civil courts. The

original marriage Act codifying the matrimonial aspects did not provide for

any conciliation machinery. However this Act lays a milestone, by

promoting conciliation to solve the disputes between the spouses and avert

any divorce on trifle ground. Thus the Act tries to preserve the institution

of marriage also.

Mahatma Gandhi had said “family disputes and differences are to be settled generally according to the law

of love.”, S.Y.Gupteand N.Y.Gupte, Law Relating to Family Courts Act 1984 (1992), p.1

TOPIC II

CONSTITUTION OF FAMILY COURTS

Chapter 2 of the Family Courts Act 1984 deals with establishment of

family courts, appointment of judges as well as counselors, officers and

other employees required for the Family Courts

Establishment of Family Courts

S. 3(1) of the Act provides that for the purpose of

exercising the jurisdiction and powers conferred on a Family Court by this

Act, the State Government, alter consultation with the High Court, and by

notification-

(a) Shall, as soon as may be after the commencement of this Act, establish for

every area in the State comprising a city or town whose population exceeds

one million, a Family Court;

(b) May establish Family Courts for such other areas in the state as it may

deem necessary.

By virtue of S.3 (2) of the Act the State Government shall, after

consultation with the High Court, specify, by notification, the local limits

of the area to which the jurisdiction of a Family Court shall extend and

may, at any time, increase, reduce or alter such limits.

The constitutional validity of Section 3 was challenged in writ petitions

under Article 226 of the Constitution. In Smt. Lata Pimple v. The Union of

India,2 it was challenged that Section 3 of the Act was unconstitutional

being violative of Articles 14 & 19 of the Constitution. The Division Bench

comprising of S.P. Kurdukar & A.P.Shah (JJ.) of Bombay High Court

rejected the argument and observed that section 3 makes it obligatory upon

the state Government to establish family courts in a city or town whose

population exceeds one million. This was a rational and intelligible

differentia made to secure aims and objects of the Act. Metropolitan cities

having population of one million and above is a place for matrimonial

disputes. It was with this object in mind, family courts have been

established in the Metropolitan cities with population of one million. Thus

2 A.I.R. 1993. Bom. 255

the Court held that section 3 cannot be challenged as being discriminately

and violative of Article 14 of the Constitution.

Whether a civil court

In Munnalal v. State of U.P.,3 a question has arisen whether the family

court is a court for the purpose of section 24 of Civil Procedure Code. The

Division Bench consisting of V.K. Khanna & R.A. Sharma (JJ.) opined that

family court is a court, which decides the disputes in exercise of the state’s

judicial power conferred on it by a statute in a judicial manner and declare

the rights of the parties. The court held that family court has all the

attributes and satisfied all the ingredients of a court.

Appointment of Judges

By virtue S. 4 (1) of the Act the state Government may, with the

concurrence of the High Court, appoint one or more persons to be the

Judge or Judges of' a Family Court.

By virtue of S. 4 (2) of the Act when a Family Court consists of

more than one Judge, -

3 1991 Cri. L.J. 1838

(a) Each of the Judges may exercise all or any of the powers conferred on the

Court by this Act or any other law for the time being in force;

(b) The State Government may, with the concurrence of the High Court,

appoint any of the Judges to be the Principal Judge and any other Judges to

be the Additional Principal Judges;

may deem fit for the distribution of the business of the Court among the

various Judges thereof,

(d) The Additional Principal Judge may exercise the powers of the Principal

Judge in the event of any vacancy in the office of the Principal Judge or

when the Principal Judge is unable to discharge his functions owing to

absence, illness or any other cause.

By virtue of S 4(3) of the Act a person shall not be qualified for

appointment as a Judge unless he-

(a) Has for at least seven years held a judicial office in India or the office of a

member of a tribunal or any post under the Union or a State requiring

special knowledge of law; or

(b) Has for at least seven years been an advocate of a High Court or of two or

more such Courts in succession; or

the concurrence of the Chief Justice of India, prescribe.

By virtue of S.4 (4) of the Act in selecting persons for appointment

as Judges, -

(a) 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

counseling are selected; and

(b) Preference shall be given to women.

Power to exempt during public emergency. –

According to Section 5 of the Act In any case of public emergency the

State Government may, by notification in the Official Gazette, exempt any

factory or class or description of factories from all or any of the provisions

of this Act 1[except Sec. 671 for such period and subject to such conditions

as it may think fit:

Provided that no such notification shall be made for a period

exceeding three months at a time.

2[Explanation. -For the purposes of this section “public emergency”

means a grave emergency whereby the security of India or of any part

of the territory thereof is threatened whether by war or external

aggression or internal disturbance.]

By virtue of S.5 (5) of the Act no person shall be appointed as, or

hold the office of, a Judge of a Family Court after he has attained the age of

sixty-two years.

By virtue of S. 5(6) of the Act the salary or honorarium and other

allowances payable to, and the other terms and conditions of service of a

Judge shall be as the State Government may, in consultation with the High

Court, prescribe.

Assistance of Social and Welfare agencies

To achieve the objectives enumerated in the preamble, the legislation

has provided statutory provisions to seek assistance of social organizations

or even the individual with special expertise in the said field even if these

organizations or individuals are not related with the family courts.

S. 5 of the Act provides that the State Government may, in

consultation with the High Court, provide, by rules, for the association, in

such manner and for such purposes and subject to such conditions as may

be specified in the rules, with a Family Court of-

(a) Institutions or organisations engaged in social welfare or the

representatives thereof,

(b) Persons professionally engaged in promoting the welfare of the family;

(d) Any other person whose association with a Family Court would enable it to

exercise its jurisdiction more effectively in accordance with the purposes of

this Act.

The Family Courts (Kerala) Additional Rules 1990, Rule 4 deals with

association of social welfare agencies etc. According to that Rule every

Family Court shall prepare in respect of its area, a list containing not less

than ten names of the institutions, organizations, agencies and the

representatives thereof and persons engaged in social welfare, matrimonial

and allied matters, from among the list prepared by the Government as per

Rule 28 of The Family Courts (Kerala) Rules 1989 and submit the same for

approval of Government.6 The services of the agencies or persons specified

may be obtained by the family court ‘suo motu’ or on the application or

any of the parties.

6 Rule 28 of the Family Courts (Kerala) Rules 1989 – (1) There shall be prepared by the Government a list

of institutions organizations agencies or persons working in the state in the area of social welfare, family

welfare, Child Guidance, Employment or in any other areas as the Government may deem fit, to enable the

counselor or party to a suit or proceeding to obtain the assistance of such institutions organizations,

agencies or persons.

(2) The Counsellor may take the assistance of such institutions, organizations, agencies or persons in the

discharge of his duties.

Counsellors, Officers and other Employees

S.6 (1) of the Act provides that the State Government shall in

consultation with the High Court, determine the number and categories of

counsellors, officers and other employees required to assist a Family Court

in the discharge of its functions and provide the Family Court with such

Counsellors, officers and other employees as it may think fit.

S.6 (2) of the Act provides that the terms and conditions of

association of the counsellors and the terms and conditions of service of the

officers and other employees, referred to in Sub-section (1), shall be such

as may be specified by rules made by the State Government.

Accordingly, Rule 177 deals with appointment of counselors and Rule

6 of the Family Courts (Kerala) Additional Rules 1990 gives the conditions

of service of officers and other employees.

In the conditions obtaining in India, conventionally and customarily

arranges marriages are generally prevalent, though during the past decade

and a half, there has been a drifting away from this system among the

7 Rule 17 of the Family Courts (Kerala) Rules 1989 – Appointment of Counsellors – Counsellors attached

to the counseling center shall be appointed by the government in consultation with the High Court.

Provided that in the opinion of one or more professionally qualified experts in family and child welfare,

preferably working in recognized institutions of social science or social work whether possible, shall be

considered by the Government before making such appointment.

urban people. All the same, our culture and tradition mandate the

continuation of marriage as far as possible by adopting the policy of give

and take. Since the marriages are mostly arranged by parents, it will be

iniquitous to allow the sins of parents to visit on their children whose

marriage is to be broken on trifles and without realizing future problems of

divorce. As the underlying scheme and purpose of the enactment is the

promotion of conciliation in the resolution of matrimonial disputes, in

addition to associating social welfare agencies under section 5, through

section 6, it provides the machinery for induction of officers to assist the

court in the discharge of its functions.8

TOPIC III

JURISDICTION OF FAMILY COURTS

Chapter 3 of the Family Courts Act 1984 deals with the jurisdiction of

Family Courts.

Territorial Jurisdiction

The territorial jurisdiction of family courts is fixed by notification by

the state Government and by virtue of the powers conferred on it under

Section 3. The said territorial jurisdiction can be increased, reduced or

8 S.Parameswaran, Espee on family courts and family laws in India, Sudhalakshmi Publications Pvt. Ltd.,

(1995), p.20

altered as per the requirements, by the state Government in consultation

with the High Court.

The territorial Jurisdiction being restricted as per notification of each

family court, the jurisdiction of family court shall be governed by the

marriage law applicable to the litigation couple.

Subject matter

S.7 (1) of the Act provides that subject to the other provisions of this

Act, a Family Court shall. -

(a) Have and exercise all the jurisdiction exercisable by any district court or

any subordinate civil court under any law for the time being in force in

respect of suits and proceeding of the nature referred to in the explanation;

and

(b) Be deemed, for the purposes of exercising such jurisdiction under such law

to be a district court or, as the case may be, such subordinate civil court for

the area to which the jurisdiction of the Family Court extends.

The suits and proceedings referred to here includes suits and

proceedings connected with the following matters:

(a) For a decree of nullity of marriage or restitution of conjugal rights or

judicial separation or dissolution of marriage.

(b) For a declaration as to the validity of a marriage or as to the matrimonial

status of any person.

(d) For all order or injunctions in circumstances arising out of a marital

relationship.

(e) For a declaration as to the legitimacy of any person.

(f) For maintenance.

(g) In relationship to the guardianship or custody of a minor.

By virtue of S.7 (2) of the Act the jurisdiction exercisable by a Magistrate

of the First Class under Chapter IX of Cr.P.C(relating to order for

maintenance of wife. children and parents) is also conferred on a Family

Court.10

The suits and proceedings will be regulated by the personal Marriage

laws of the parties in dispute. The Act covers the areas of the following

Acts:

1. Hindu Marriage Act 1955

2. Special Marriage Act 1954

3. Hindu Adoptions and Maintenance Act 1956

4. Parsi Marriage and Divorce Act 1936

5. Indian Divorce Act 1869

6. Christian Marriage Act 1872

7. Dissolution of Muslim Marriage Act 1939

8. Hindu Minority and Guardianship Act 1956

9. Criminal Procedure Code 1973

10. Guardian and wards Act 1980

However in cities of Bombay, Calcutta, Delhi, Madras, the petitions cannot

be presented in the Family Court under the Parsi Marriage and Divorce Act

10 Section 125, 126, 127 and 128 of Criminal Procedure Code.

1936 Indian Divorce Act 1872, the Christian Marriage Act 1872, Dissolution

of Muslim Marriage Act since the provisions of the Acts ousts the

jurisdiction of District courts and the said jurisdiction vests on High Courts.

The provisions of section 7 of the Act gives jurisdiction that is vested in

District Courts

Interim maintenance

Jurisdiction of the Family Court to grant interim maintenance was the

issue in G.L. Jagadish v. Shamantha Kumari11 the Court rightly observed

that the Family Court has an undoubted jurisdiction to grant an exparte

order of interim maintenance under section 7 (2) of the Act in a petition

under section 125 of Criminal Procedure Code for maintenance on being

satisfied that there is a prima facie case for maintenance.

Exclusion of Jurisdiction and Pending Proceedings

Section 8 of the Act not merely excludes the jurisdiction of district

court or subordinate civil court

in respect of matters categorized under

11 1990 Cri, L.J. 1175

S. 8 of the Act provides that where a Family Court has been established for any

area:-

(a) No district court or any subordinate civil court referred to in subsection (1) of Section 7

shall, in relation to such area, have or exercise any jurisdiction in respect, of any suit or

proceeding of the nature referred to in the explanation to that sub-section;

Section 7, but also declares that if such matters are pending before other

courts, the same shall stand transferred to the Family Court.

The wording clearly ousts the jurisdiction of civil courts as far as

matters enumerated in the explanation clauses are concerned, once the

family court is established for a territorial area.

In Mariya Teresa Martin v. Martin,23 the respondent who is the decree

holder and husband of the revision petitioner got an exparte order from the

Family Court at Madras for appointing him as guardian of his minor

daughter and also the custody of the child. The said order was sent for

execution to the District Court, Kollam within whose jurisdiction the

petitioner was living along with the child. The objection of the petitioner

that the decree was not executable by a court, which had no jurisdiction,

was overruled by the lower courts. The High Court examined the issue

(b) No magistrate shall, in relation to such area, have or exercise any jurisdiction or power

under Chapter IX of Cr.P.C;

Section 7 and every proceeding under Chapter IX of Cr.P.C, -

(i) Which is pending immediately before the establishment of such Family Court

before any district court or subordinate court referred to in that sub-section or, as the case

may be before any magistrate under the said Code; and

(ii) Which would have been required to he instituted or taken before such Family

Court if, before the date on which such suit or proceeding was instituted or taken, this Act

had conic into force and such Family Court had been established,

Shall stand transferred to such Family Court on the date on which it is established.

23 1993 (1) K.L.T. 531

whether the District Court had jurisdiction to execute the decree passed by

the Family Court at Madras.

The High Court examined section 7 and of the Act and observed that a

reading of section 8 along with section 7 would show that the same

completely ousts the jurisdiction of District Court with respect to matters

enumerated in the explanation to section 7, and the matter in question falls

under clause (g) of the explanation. The proceedings which were pending

at the establishment of the Family Court also would transferred to the

Family Court.

But in Kamalasanan v. Valsala24, the Kerala High Court observed that

Family Courts did not exclude the jurisdiction of civil court in all respects.

Section 7 specifically mentions the limited area of Family Courts. It has no

power to transverse beyond its specified sphere of jurisdiction. So the

Court was of the opinion that any matter not covered by section 7 would

definitely come within the civil courts jurisdiction.

It was been held by the court that a suit for the declaration that the

revision petitioner is bound to conduct the marriage of his daughter and

also for mandatory injunction directing him to provide necessary funds for

24 1994 (1) K.L.T. 737

marriage would not come under any of the matters mentioned in section 7

of the Act and so will not come within the jurisdiction of the Family Court.

Actually, the objectives mentioned in the preamble specifically said that

the Act is for all “disputes relating to marriage and family affairs and for

matters connected therewith”. So the above mentioned case would have

certainly come within it. Though the title and preamble have wider

connotation the Act (section 7) restricted the scope by relating it to

marriage issues only. The courts are also following the same.

However in Kaml Allaudin v. Raja Shaikh29, the High Court held that all

suits and petitions falling under section 7 (a) – (g) of the Act, would lie to

the Family Court and the jurisdiction of the High Court stood excluded to

that extent in relation to the area over which the Family Court Bombay

exercised jurisdiction and all suits pending in High Court, thereafter stood

transferred to the Family Court, Bombay under section 8.

Later the Division Bench of Bombay High Court in the case of Kanak

V Mehta v. Vinod D. Mehta,30 reversed the above Judgement of single

judge. The Division Bench held that the Family Courts Act being a central

legislation the principles that so far as was possible, the same construction

should be placed by High Court upon a central statute as had found with

29 See supra, n. 20

30 A.I.R. 1991 Bom. 337

another High Court. In view of this judgement the Family Courts Act, on

enforcement for Bombay city and suburban are did not oust the jurisdiction

of High court. So the jurisdiction of High Court in its original side was not

affected by section 7 of the Act.

So it is quite clear that the legislature has vested exclusive jurisdiction in the

Family Court with regard to certain matters and the Civil Court is not

competent to decide such questions.

TOPIC IV

PROCEDURE IN FAMILY COURTS

Chapter 4 of the Family Courts Act 1984 deals with the procedure in

Family Courts.

Duty of Family Court to Make Efforts for Settlement

According to section 9 (1) of the Act, every endeavour shall be

made by the Family Court to assist and persuade the parties in arriving of a

settlement in respect of the suit or as it deem fit. Sub-section (2) further

provides that if it appears to the court that there is a reasonable possibility

of settlement, it may adjourn the proceedings also. So by this section, it is

the duty of the court to make every endeavour to bring about a

reconciliators between parties before deciding a matrimonial disputes. The

law enjoins upon the court make a sincere effort at reconciliation before

proceeding to deal with the case in the usual course.

It appears from the wording of different sections that the judge should

himself apply his mind whether there is any possibility of reconciliation.

Hence before referring any matter to the counselor it appears to be

expected that the judge should apply his mind to the facts of the case, by

himself going through the pleadings and by discussing the matter with the

parties.

Marriage being the most important social institution, a last effort

must necessarily be made to find out the true cause of the breach and

whether corrective steps are possible. For this purpose the Rules are made

which gives the procedure to be followed in the counseling.31 Rule 22

states that when the parties appear before the court, the judge shall direct

the parties to consult a counselor for counseling. The Counsellors are

trained persons and after a session with the parties, a report is put up to the

court. The object of such reference to a counselor is not to be

misunderstood to mean that the parties must be forced even against their

Raj Kishore Misra v. Meena Misra, A.I.R. 1995 All. 70.

31 See The Family Courts (Kerala) Rules 1989, Rules 21-37.

wishes, to patch up a marriage which cannot be mended. A judicious

approach is essential as far as this aspect of the proceeding is concerned

which presupposes that aspect of the proceeding is concerned which

presupposes that in border-line cases where the interests of the parties or

the children require that a judge may certainly persuade them towards a

reconciliation but the duty of the court certainly ends there.32

Procedure Generally

Section 10 deals with the procedure which can be adopted in the

family Courts.

S.10 (1) of the Act provides that subject to the other provisions of

this Act and the rules, the provisions of the Code of Civil Procedure, 1908

(5 of 1908) and of any other law for the time being in force shall apply to

the suits and proceedings [other than the proceedings under Chapter IX of

the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court

and for the purposes of the said provisions of the Code, a Family Court

shall be deemed to be a civil court and shall have all the powers of such

court.

32 Leela v. Dr.Mahadeo Joshi, A.I.R. 1991 Bom. 105

By virtue of S.10 (2) of the Act subject to the other provisions of this

Act and the rules, the provisions of the Code of Criminal Procedure, 1973

(2 of 1974) or the rules made there under, shall apply to the proceedings

under C IX of that Code before a Family Court.

By virtue of S.10 (3) of the Act nothing in sub-section (1) or

subsection (2) shall prevent a Family Court front laying down its own

procedure with a view to arrive at a settlement in respect of the subject-

matter of the suit or proceedings or at the truth of the facts alleged by one

party and denied by the other.

The provisions of Civil Procedure Code and Criminal Procedure Code

are applicable to Family Courts even though sub-section 3 makes clear that

nothing in this section shall prevent a family court from laying down its

own procedure in order to attain a settlement. And as per this section the

Family Court has been given all the powers of a Civil Court under Criminal

Procedure Code.

Proceedings to be Held in Camera

S.11 of the Act provides that every suit or proceedings to which this

Act applies, the proceedings may be held in camera if the Family Court so

desires and shall be so held if either party so desires.

Family dispute is solely a personal matter between the spouses. Third

person has no right to know the ordinary pursuits of somebody. As such

parties to the dispute have a right to claim privilege against all others from

knowing their disputes. This right of the parties is recognized by the

legislatures not only in this Act in every marriage law.37 The Act provides

for holding the proceedings in camera, not only at the desire of parties but

on the discretionary power of the court also if the facts of the proceedings

so require in the opinion of the court. The responsibility is therefore cast on

the court, in such circumstances to guide the parties by providing the

discretionary power of the court.

Assistance of Medical and Welfare Experts

37 See Section 22 of the Hindu Marriage Act, 1955

Section 33 of the Special Marriage Act, 1954

Section 53 of the Indian Divorce Act, 1869

Section 43 of the Parsee Marriage and Divorce Act, 1936

A new and novel provision in consonance with the other provisions is

included in the enactment by which the Family Court can secure the

services of a medical expert or such person (preferably a woman where

available), whether related to the parties or not, including a person

professionally engaged in promoting the welfare of the family for the

purpose of assisting the court in discharging the functions.38

Though the court has discretionary power to take assistance of medical

expert it is subject to the provisions of respective marriage laws. No person

can be compelled by the court to undergo any medical examination against

his/her desire. Further the court should be satisfied that such medical expert

is engaged in promoting the welfare of the family. According to the Rules,

the counselor to whom the parties are referred may in discharge of the

duties refer the parties to an expert in medicine such as psychiatry.39

With regard to the welfare experts, it appears from the section that the

court need not necessarily depend on the counselors on the muster roll of

court, but in case the court is satisfied that a particular matter requires

special expertise or unique issues are involved, the court can refer the

matter to a welfare expert who is a person engaged in promoting the

welfare of the family.

38 Section 12 of the Family Courts Act, 1984

39 Rule 26 of the Family Courts (Kerala) Rules 1989.

Right to Legal Representation

Section 13 is an important, at the same time debated provision of the

Act dealing with right to legal representation. It reads:

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:

Provided that if the family court considers it necessary in the interest if

justice it may seek the assistance of a legal expert as amicus curiae.

The section lays prohibition on the legal practitioners to represent the

party as of right. The proper interpretation of the section is that the party is

prohibited from engaged any legal practitioner without the permission of

the court. The power whether to allow any legal practitioner to represent a

party to the dispute is vested in the court. The court has to consider the

issue on balance of convenience. Once one party to the dispute is granted

permission to be represented by legal practitioner on the principles of

natural justice the other party also as a matter of right would be entitled to

be represented by a legal practitioner.

The word “as of right” in Section 13 prima facie tend to indicate that the

parties to a suit or proceeding shall not as a matter of right be entitled to be

represented by a legal practitioner, but in appropriate cases the parties may

be permitted to represent by a lawyer. The Act lays emphasis on

conciliation and amicable settlement of matrimonial problems and aims to

do away with this adversary system of trial of the ordinary courts. With this

aim in view section 13 is incorporated in the Act.40

Application of Indian Evidence Act, 1872.

S.14 of the Act provides that -a Family Court may receive as

evidence any report, statement, documents, information or matter that may,

in its opinion, assist it to deal effectually with a dispute, whether or not the

same would be otherwise relevant or admissible under the Indian Evidence

Act, 1872 (1 of 1872).

The wording of the section indicates that the Evidence Act in its

technical sense is not applicable to the proceedings in family court. The

Family Court Act has been enacted so that dispute within the family may

get priority and be disposed of expeditiously. For ensuring speedy disposal

it has been thought fit that the Family Court should not enter into legal,

rigorous and also complicated principles about the admissibility of

40 P.K.Sengupta, “Section 13 of the Family Courts Act of 1984 – Does it totally prohibit lawyers from

appearing before Family Court”? A.I.R. 1995 (J) 148

documents under the Indian Evidence Act. So the Family Court is let free

to receive any evidence or material which assist it to deal effectually with a

dispute.

The fact that the appearance of legal practitioner is excluded, casts a

heavy burden on the judge in deciding cases, when the case of the parties is

placed before him, he knows that the parties themselves do not know as to

how documents are to be proved or how questions are to be put in cross-

examination for the purpose of seeking explanation, then it is the duty of

the judge to step in and see to it that all material facts are brought in

evidence. In order to obviate the difficulty of the parties themselves as to

what evidence would be admissible strictly under the Indian Evidence Act,

The Family Court has been given a free hand to receive the report,

statement or any other material in evidence which may assist in dealing

with disputes.

The constitutionality of section 14 upheld in Smt.Lata Pimple v. The

Union of India.46

Record of Oral Evidence. -

46 See supra, n.2

S.15 of the Act provides that in suits or proceedings before a Family

Court, it shall not be necessary to record the evidence of witnesses at

length, but the Judge, as the examination of each witness proceeds, shall,

record or cause to be recorded a memorandum of the substance of what the

witness deposes, and such memorandum shall be signed by the witness and

the Judge and shall form part of the record.

According to the Family Courts (Kerala) Rules it is open to the court to

tape record the evidence.48 The Family Courts while recording

memorandum of the substance have to comply with rules of natural justice.

Usually the elaborate and lengthy and time consuming procedure of

taking evidence, delays the delivery of justice and thus defeating the very

purpose of approaching the courts. Family Courts should not have that kind

of procedure since one of the objectives itself is speedy disposal of matters.

If judicial and fair minded persons are appointed as Presiding Officers, it

may yield intended results.

Evidence of Formal Character on Affidavit.

48 Rule 48 of Family Court (Kerala) Rules 1989

According to section 16, evidence of formal character may be given by

affidavit

and if necessary the court shall summon and examine any such

person as to the facts contained in his affidavit.

The provision avoids the delay in the proceedings in recording the

evidence of a witness in open court; when such evidence is of formal

character, such as date of marriage, date of birth of children etc. This also

would save the time of the witness to come to the court during working

hours and sign the affidavit. Neither this provision violates the principles of

natural justice nor affects the rights of other party because the party

disputing such affidavit can always make an application to call such

witness to the court for cross examination.

Judgment

S.17 of the Act provides that judgment of a Family Court shall contain a

concise statement of the case, the point for determination, the decision

thereon and the reasons for such decision.

Execution of decrees and orders

S.16 (1).

S.16 (2).

S.18 (l) of the Act provides that decree or all order [other than an

order under Chapter IX of the Code of Criminal Procedure, 1973, (2 of

1974)], passed by a Family Court shall have the same force and effect as a

decree or order of a civil court and shall be executed in the same manner as

is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the

execution of decrees and orders.

S.18 (2) of the Act provides that an order passed by a Family Court

under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)

shall be executed in the manner prescribed for the execution of such order

by that Code.

S.18 (3) of the Act provides that a decree or order may be executed

either by the Family Court which passed it or by the other Family Court or

ordinary civil court to which it is sent for execution.

TOPIC V

APPEALS AND REVISIONS

Chapter 5 of the Family Courts Act 1984 deals with appeals and

revisions from the judgment or order of Family Courts.

Appeal

Section 19 provided that an appeal shall lie from every judgement or

order of a Family Court to the High Court on facts and on law.

But no

appeal shall lie from a decree or order passed by the Family Court with the

consent of the parties or from an order passed under IX of the Code of

Criminal Procedure 1973.

And every appeal shall be preferred within

period of thirty days from the date of the judgement or order of a Family

Court.

The section also provides that no appeal shall lie against the

interlocutory orders.

In Gopi v. Premila50, the Family court, passed a decree of nullity in

favour of the husband holding that the wife at the time of marriage was

pregnant by some person other than her husband. The respondent wife

S.19 (1).

S.19 (2).

S.19 (3). S.19 (4) of the Act provides that the High Court may, of its own motion or

otherwise, call for and examine the record of any proceeding in which the Family Court

situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal

Procedure, 1973 for the purpose of satisfying itself as to the correctness, legality or

propriety of the order, not being an interlocutory order, and, as to the regularity of such

proceeding.

S.19 (5) of the Act provides that except as aforesaid, no appeal or revision shall lie to any Court from any

judgment, order or decree of a Family Court. S.19 (6) of the Act provides that an appeal preferred under

sub-section (1) shall be heard by a Bench consisting of two or more Judges.

S.19 (1).

50 1994 (2) K.L.T. 660

presented an application under section 25 of the Hindu Marriage Act 1955

for permanent alimony and maintenance. By the impugned order the

learned judge of the Family Court has granted permanent maintenance of

Rs. 25/ per month. The issue is that whether the appeal as presented is

maintainable under section 19 of Family Court Act or under section 28 of

the Hindu Marriage Act 1955.

Court found that section 25 of the Hindu Marriage Act enacts a

substantive provision empowering the court to grant permanent alimony

and maintenance to the parties either at the time of passing the decree or

thereafter. Such an order would clearly be an appealable order under

section 28 of the Act, 1955.

After enactment of the Family Courts Act 1984, such Court and would

also be appealable on the perusal of section 19 thereof. The character of the

order in this case showed that it was an order under substantive provision

creating independent rights under Hindu law of marriage after the dispute

was finally terminated.

So the conclusion was that the appeal was not only maintainable but

was competent both under section 19 of Family Courts Act and section 28

of Hindu Marriage Act 1955.

In Radha v. K.Velayudhan,51 the revision petitioner was the mother-in-

law of the respondent. After the death of her daughter, two children of the

daughter were residing with the grand mother. The respondent filed

petition for custody of his children against which an application for staying

of the proceedings till the investigation as to the cause of the death of her

daughter was completed, which was dismissed. The issue in this case

whether interlocutory order of Family Court was revisable.

Court found that a revision did not lie from an interlocutory order of a

family court. The wording of sub-section (5) of Section 19, was such that

the same was capable of taking in not only final order but also interlocutory

order. Court opined that the very scheme of the Act showed that the dispute

relating to marriage, family affairs etc were brought under a particular

forum armed with necessary provisions to ensure speedy settlement of the

disputes. Consistent with the said object, the Act made restriction in the

matter of appeal and revision. It was held that the literal and natural

meaning of ‘any order’ in sub-section 5 would take in interlocutory orders

also and so the revision was not competent.

51 A.I.R. 1994 Ker. 412