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C - (2) J F C

The document discusses the jurisdiction and role of family courts in India. It describes the types of cases dealt with, including divorce, child custody, and maintenance. Laws governing dissolution of marriage for various religious communities are also outlined. The process for registering cases in family court is summarized, including required documents and next steps after registration.

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72 views6 pages

C - (2) J F C

The document discusses the jurisdiction and role of family courts in India. It describes the types of cases dealt with, including divorce, child custody, and maintenance. Laws governing dissolution of marriage for various religious communities are also outlined. The process for registering cases in family court is summarized, including required documents and next steps after registration.

Uploaded by

Ranvids
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© © All Rights Reserved
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CHAPTER-(2)

JURISDICTION OF FAMILY COURT

The Family Court is a special court, which is mainly concerned with


resolving family disputes. The Government of India established Family Courts
with the objectives that family disputes be dealt with separately from general
criminal cases so that they are handled with a humanitarian view and to enable
women to approach the court easily without having to appear with general
criminals.

Types of Cases Dealt with in the Family Court

Cases related to family and marriage disputes are resolved in the Family Court.
The following types of cases are handled in Family Courts:

1. Dissolution of marriage, i.e. divorce-related suits


2. Suits related to restitution of conjugal rights
3. Suits related to declaration of a marriage as null and void
4. Suits regarding legality or validity of marriages
5. Suits regarding property of married couples
6. Suits related to maintenance and alimony
7. Suits related to the custody and guardianship of children.
All these cases are resolved in Family Courts. It is necessary that one should
have all the relevant information regarding the case before registering it in the
Family Court. These laws are applicable to all Indian citizens and the cases are
handled according to the personal law of their religion. For example, the Hindu
Marriage Act, 1955 is applied to Hindus, the Muslim Personal Law to Muslims,
the Indian Divorce Act to Christians, the Parsi Personal Law to Parsis, etc.1

Laws for Dissolution of Marriage or Divorce

According to the Hindu Marriage Act (Section 13) all cases related to dissolution
of marriage or divorce are solved in the Family Court. An affected person can
legally apply for divorce on the following grounds:

1.A married woman could apply for divorce if her husband has an illegal
physical relationship with another woman. Even if the husband married that
woman the marriage would be illegal because a married individual cannot
have another spouse while the spouse of the first marriage is still alive.
2.If a husband leaves his wife without any reason and does not have any
relations with her for two years then a wife can seek a divorce from her
husband.
3.Divorce could be sought on the basis of cruelty. If a husband tortures his
wife physically or mentally (for example, physical assault or applying
mental pressure, tension, allegations of being characterless, dowry
demands, use of abusive language/words, etc.) a wife could seek a divorce
from him.
4.A wife could apply for a divorce from her husband if he suffers from a
chronic physical or mental disease, which is incurable.
5.If a husband is missing for seven years or more, and his relatives and
friends have no idea of his whereabouts then his wife can seek a divorce
from her husband.

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Available at: http://nipccd.nic.in/reports/familycourt.pdf
6.If a husband is found guilty of rape or any other such action after marriage,
then a wife has the right to seek a divorce from her husband.
7.If a husband and wife are living separately for a year and they mutually
agree that they cannot live together any longer, they could apply for a
divorce by mutual understanding on the condition that there is no pressure
on either party for the divorce petition.
8.Under the Muslim Marriage Dissolution Act, 1939, Muslim women could
seek a divorce based on the above mentioned grounds.
9.Under Section 10 of the Indian Divorce Act, 1869, a Christian woman
could present a petition to dissolve her marriage if she can prove that her
husband is guilty of: adultery coupled with desertion for two years; rape;
sodomy; change of religion; adultery coupled with cruelty; insanity; or
impotency.

How can Family Court Help the Parties in the Restitution of their Conjugal
Rights

Both husband and wife have certain responsibilities and duties towards each other
after their marriage. If the husband or wife does not discharge his or her duties
properly then the affected spouse has the right to move court for the protection of
his or her rights. If a husband does not live with his wife or does not agree to keep
her with him then the wife has the right to move the Family Court for the
restitution of her conjugal rights under Section 8 of the Hindu Marriage Act. If the
applicant’s marriage is legally valid then the Family Court could help her in the
restitution of her conjugal rights.2

What does the Family Court do in Case of a Maintenance Suit?

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Available at: http://nipccd.nic.in/reports/familycourt.pdf
In Indian society most women are dependent on their father’s income before
marriage and on their husband’s after marriage. However at times it is observed
that some married men desert their wives and children and they do not provide
money for the maintenance of their families. In such a helpless situation, women
can claim for maintenance under Section 125 of the Criminal Procedure Code
(CrPC), 1973. According to this Act, a divorced woman has the right to
maintenance for her entire life or till she remarries for the second time.

Even while the divorce case is in process, a wife has the right to get maintenance
during the interim period. Women are entitled to get maintenance from their
husbands under the following categories:

1. Women who are not getting maintenance


2. Women whose marriages are legally valid
3. Women who do not have any source of income
4. Women who do not have any property in their names
5. Women whose children are under their custody. (Unmarried daughters and
minor sons have the right of maintenance.)

Role of the Family Court in a Suit for Custody of Children

When a husband and wife start living separately after divorce, they have to decide
with whom the minor children will live. This becomes a matter of great concern.
When the case is referred to a Family Court, the court makes the decision after
taking cognizance of all the existing conditions3. The court also tries to discover
the preferences of the child. If a child is below five years then the mother has the
right to legal custody. When a child is over five, the court decides with whom the
child should live by keeping in mind the well-being of the child. If the child’s
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Available at: http://nipccd.nic.in/reports/familycourt.pdf
interests and well-being are protected by the mother, the court decides to give the
mother the custody of the child.

The Wife’s Property Rights

Women have the following legal rights to property:

1. Property purchased from their own earnings


2. Properties received by them, like jewelry, cash, landed property, etc., given
to her by her father or mother or other relatives on the occasion of her marriage
3. Gifts received from her father, mother, relatives or friends.
Women also have the right to spend their earnings, buy property, and sell property
owned by them.

Steps Followed while Registering Suits in a Family Court

If a man or a woman wants to register a suit in a Family Court then he or she


should describe clearly the details of all problems in the marriage. This should be
typed on a plain watermark paper and submitted along with a court fee stamp of
Rs. 37.50 plus Rs. 5 talwan as court fees and a passport-size photograph of the
petitioner. Along with this suit paper, a petitioner should also submit a declaration
on Rs. 10 stamp paper in which he or she declares that whatever facts have been
written in the suit are correct. The petitioner should explain the nature of the
problem in detail in the suit paper. For example: under which Section the petitioner
wants to register his or her suit; what the problem is; the duration of the problem;
what type of intervention or cooperation the petitioner wants from the Family
Court; against whom the case is fought; their addresses for communication; etc. All
these should be mentioned clearly in the suit paper. The Suit paper with all this
information is submitted to the Mushrim in the Family Court. (The Family Court
of Varanasi is situated in the Office of the District Magistrate.) The Mushrim
checks and verifies all the relevant papers/ information and if found correct and
complete it is placed with other files for new registrations. These files are
presented to the Principal Judge of the Family Court before the pre-lunch session
on the same day. After verification of each file and hearing the petitioners, the
Principal Judge decides whether the suit is fit for 6 registration. If he decides that it
is, he gives the orders for its registration. After the registration of a suit, the
applicant has to fill in a Summons Form in which she/he has to give the address
and names of the opposite party4.

The applicant then gets a date for the next hearing. In the case of maintenance suits
the court fee is only Rs. 7.50. Non-compliance of a court order in maintenance
suits are regarded as criminal cases, hence these cases are tried speedily and the
court orders Rs. 1,500/- per month as the maximum amount to be paid by the
husband. Family Courts are designed and were created to help women present their
own cases before the judge. Therefore women should do this boldly and use
lawyers’ assistance only in unavoidable conditions

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Available at: http://nipccd.nic.in/reports/familycourt.pdf.

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