FAMILY LAW ASSIGNMENT

FAMILY LAW ASSIGNMENT

TOPIC – THE FAMILY COURTS ACT,1984

SUBMITTED BY- ISHANT TRIPATHI

COURSE- B.A.LL. B(HONS) (SELF FINANCED)

EXAMINATION ROLL NO- 21BLWS1014

CLASS ROLL NO- 15

STUDENT ID- 202107886

SEMESTER – 5th

BATCH- 2021-26

EMAIL ID – [email protected]

SUBMITTED TO –PROFESSOR KAHKASHAN Y. DANYAL, FACULTY

OF LAW, JAMIA MILLIA ISLAMIA (110025).
 FAMILY LAW ASSIGNMENT

ACKNOWLEDGEMENT

I would like to express my special gratitude towards my Professor Kahkashan Y.

Danyal ma’am who provided me the opportunity to do this project and guided me
in such a humble manner in my assignment and provided the support, spirit and
courage to fulfil the requirement for this project.

I want to thank ma’am for all his guidance and efforts for successful completion
of this project without ma’am this would not be possible. I would also like to thank
almighty for providing me strength to execute this project .

I am deeply indebted to you ma’am without yours constructive efforts I will not
able to complete this, once again thank you so much ma’am.

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TABLE OF CONTENT

INTRODUCTION 4

OBJECTIVES AND FUNCTION 5-6

LEGAL JURISDICTION OF FAMILY LAW COURTS 6

FEATURES OF THE ACT 6-7

CAMERA PROCEEDINGS AND EXCLUSION OF LAWYER 7-8

SCOPE OF INTERFERENCE IN APPEAL IN ORDER OF 8

FAMILY COURT
CONCLUSION 8-9

BIBLIOGRAPHY 10

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INTRODUCTION

It is not unknown that a gaping loophole in the Indian Judiciary is the backlog of cases. The number
of cases being filed in the Supreme Court is consistently on the rise. 34683 cases were filed in
Supreme Court in the year 1999, whereas, 70350 were filed in the year 2008, the increase being
about 103% nine years. There are cases dealing with a broad spectrum of issues such as family
matters and property which continue for generations. Such cases continue for atrocious periods of
time, ranging from 7 years to 30 years. In such a scenario, the channelling of cases to different
courts set up specially for this purpose not only ensures their speedy disposal, but also ensures that
the cases, being dealt by with experts in courts specially set up for this purpose; are dealt with
more effectively. The saying that “justice delayed is justice denied” then becomes relevant to take
into consideration1.

The Family Courts Act, 1984 was part of the trends of legal reforms concerning women. Because
of the building pressure from various institutions lobbying for the welfare of women all over the
country, the Act was expected to facilitate satisfactory resolution of disputes concerning the family
through a forum expected to work expeditiously in a just manner and with an approach ensuring
maximum welfare of society and dignity of women. Prevalence of gender biased laws and
oppressive social practices over centuries have denied justice and basic human rights to Indian
women. The need to establish the Family Courts was first emphasized by the late Smt. Durgabai
Deshmukh. After a tour of China in 1953, where she had occasion to study the working of family
courts, Smt. Deshmukh discussed the subject with certain Judges and legal experts and then made
a proposal to set up Family Courts in India to Prime Minister Pt. Jawaharlal Nehru.

The formation of Family Courts was a mile stone in the history of Indian judiciary. The Family
Courts Act 1984 established the Family Courts through a Gazette notification by the Central
Government. These courts are to be established in a town or city where the population exceeds one
million or in any area where the State Government considers to establish it2. One or more judges
constitute the Family Courts but each judge is competent to exercise all the powers of the court.

1
National Commissions for the Protection of Child Rights(NCPCR), Juvenile Justice Boards, Child Welfare
Committees, Child Protection Units etc.
2
Kingsley Davis, Human Society (Surjeet Publications, 8 thedn., 2007).

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In M.P. Gangadharan v. State of Kerala1, the Supreme Court has held that Family Courts should be
established not only because it is provided in the Act but the state must be alive to the situation
that It has a duty to provide all infrastructure to the forum of dispute resolution.

OBJECTIVES

The Preamble to the Family Courts Act, 1984 enacted by the Indian Parliament states that it 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 therewith2.”

FUNCTIONS

The Family Courts are free to evolve their own rules of procedure, and once a Family Court does
so, the rules so framed override the rules of procedure contemplated under the Code of Civil
Procedure. In fact, the Code of Civil Procedure was amended in order to fulfil the purpose behind
setting up of the Family Courts.

Special emphasis is put on settling the disputes by mediation and conciliation. This ensures that
the matter is solved by an agreement between both the parties and reduces the chances of any
further conflict. The aim is to give priority to mutual agreement over the usual process of
adjudication. In short, the aim of these courts is to form a congenial atmosphere where family
disputes are resolved amicably. The cases are kept away from the trappings of a formal legal
system.

The Act stipulates that a party is not entitled to be represented by a lawyer without the express
permission of the Court3. However, invariably the court grants this permission and usually it is a
lawyer which represents the parties. The most unique aspect regarding the proceedings before the
Family Court are that they are first referred to conciliation and only when the conciliation

1
2006 SC 2360.
2
Family Courts in India: an Overview, available at: http://www.legalserviceindia.com/article/ l356-FamilyCourts-in-
India.html (Visited on 21 November 2023)
3
National Commission for Women, Family Court Report on Working of Family Courts and Model Family Courts
(2002).

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proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court. The
Conciliators are professionals who are appointed by the Court. Once a final order is passed, the
aggrieved party has an option of filing an appeal before the High Court. Such appeal is to be heard
by a bench consisting of two judges.

LEGAL JURISDICTION OF FAMILY LAW COURTS

In countries where the family court system exists there is still a controversy as to what matters
should come within the jurisdiction of the Court. There is an agreement that all family law matters,
such as marriage, matrimonial causes, maintenance and alimony, custody, education and support
of children, settlement of spousal property and guardianship and custody of child’s person and
property should come within the jurisdiction of the court. But there is disagree as to para-familial
matters, such inter-spousal assaults, familial assaults, inter-familial torts and contract. Parliament
has favoured the former view1. The legal jurisdiction of Family Courts extends to all matters that
pertain to matrimonial issues, maintenance, alimony and custody of children in a marital dispute
or a divorce. Further, Family Courts deal with the following2:

• Suits or proceedings between parties to a marriage for a decree of restitution of conjugal

rights, judicial separation, nullity of marriage or divorce.
• Maintenance related issues.
• For an order of injunction in certain circumstances arising in a matrimonial relationship.
• For declaring legitimacy of any person.
• Suits or proceedings between parties regarding dispute about the property. Guardianship or
custody of any minor or child.

FEATURES OF THE ACT

• Family courts are empowered to formulate their own procedures but till then they have to
follow the Civil Procedure Code.
• Evidence need not be recorded.

1
Convention on the Rights of the Child,1989, art 3.
2
Family Dispute Conciliation, available at: https://www.mainstreamweekly.net/article1205.html (Visited on 22
November 2023).

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• Judgment can be concise with statement of the case, points for determining decision and
reasons.
• Appeal to the High Court can be filed within thirty days from the date of judgment, order
or decree of the Family Court.
• If the party desires, in camera proceedings can be conducted.
• No party to a suit or proceeding under the Family Court shall be entitled to be represented
by a legal practitioner but the court may requisition the services of a legal expert as amicus
curiae.

CAMERA PROCEEDINGS AND EXCLUSION OF LAWYER

It is now accepted in most countries as well as India that matrimonial proceedings should be in
Camera and the confidentiality of the court record should be maintained. Section 11 of the act
makes it obligatory on the part of the court to hold the proceedings in camera if any party so wishes.
In a given case, they may be held in camera if the family court so desires. One should not confuse
confidentiality of the proceedings with secrecy. In any democratic system, the public is entitled to
know the way justice is administered. 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 courts operate. And this is precisely what Section 111 lays down.

In some countries, there is a strong opinion for the exclusion of the lawyer’s service from the
family court and „do-it-yourself‟ divorce is being propagated. In undefended cases and in cases
where parties are in a mood to settle issues, the services of a qualified lawyer will hardly be needed.
But in complicated and hotly contested cases, dispensation of lawyer’s service will undermine the
rights of the parties and may harm them. Most of the people are so upset in a crisis, particularly in
marriage-crisis, as to not be able to file any papers methodically, even to think clearly and would
gratefully employ the lawyer to relieve themselves of another burden 2 . Section 13 of the Act
favours dispensation of the service of the lawyer, though the family court may seek the assistance
of a legal expert as amicus curiae whenever it considers to do so is necessary in the interest of

1
The Family Courts Act 1984, s. 11 (Act 66 of 1984).
2
Flavia Agnus, Family Law: Marriage, Divorce and Matrimonial Litigation ( Oxford University Press, New Delhi,
2011).

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justice. The Bombay High Court has expressed the view that the section does not bar the presence
of the advocate and wherever necessary, the court should freely make available the presence of the
advocate1.

In Kailash Bhansali, v. Surender Kumar2, husband filed an application to be represented by legal

practitioner and the wife was claiming harassment on the part of the husband. Order appointing
legal practitioner for both was passed which was held by the High Court to be improper.

SCOPE OF INTERFERENCE IN APPEAL IN ORDER OF FAMILY

COURT
No specific procedure has been prescribed by the statute to be followed by Family Court
deciding application for custody of minor child. The only thing to be considered by Court is
whether the procedure adopted by Family Court was natural justice. Paramount consideration
was welfare of the child3.

CONCLUSION

It is evident that the setting up of these family courts was a dynamic step so far as reducing the
backlog and disposing off cases while ensuring that there is an effective delivery of justice goes.
However, as aforementioned, there are still matters of concern which plague these courts. The
issues relating to the functioning of these courts is to be seen in total, as quoted in the examples
relating to the procedural as well as substantive aspects of the problems. There are many
controversial and debatable issues such as engaging a lawyer due to the specific provisions of the
Family Courts Act.

Furthermore, the lack of uniformity regarding the rules laid down by different states also leads
to confusion in its application. Merely passing a central legislation is not in itself a complete step;
for implementation in its spirit, it is to be ensured that some level of uniformity is maintained, at
least in the initial stages of its coming into effect. Further, the need to amend certain laws is also
to be examined and implemented effectively in order to ensure that these courts do not face any

1
Leela v. Mahadeo, 1991 Bom. 105.
2
2000 Raj. 390
3
Dr. Rohit Dandekar v. Dr. Raj Kavitha, (2004) 1 DMC 216 (Kant.)(DB)

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hindrance in their working. These small steps, if examined and implemented within time, will go
a long way to ensure that the Family Courts are successful, to a greater degree, to fulfil the noble
purpose for which they were created.

The lack of uniformity regarding the rules laid down by different states also leads to confusion
in the proper application of the Act. Though the Act was aimed at removing the gender bias in
statutory legislation, the goal is yet to be achieved. The frequent changing of marriage
counsellors is causing hardship to women who has to explain her problems afresh to the new
counsellors each time.

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BIBLIOGRAPHY

PRIMARY SOURCES
1. THE CONSTITUTION OF INDIA, 1950.
2. THE FAMILY COURTS ACT,1984
SECONDARY SOURCES
Books
1. John D. Mayne: Treatise on Hindu Law & Usage, Bharat Law House.
2. Dr. Paras Diwan & Pyushi Diwan: Family Law, Allahabad Law Agency, Faridabad
3. Dr. S. R. Myneni: Hindu Law (Family Law I) Asia Law House, Hyderabad.
4. H. S. Gaur: The Hindu Code, Allahabad Law Agency, Faridabad.
5. R. K. Aggarwal: Hindu Law, Central Law Agency, Allahabad.
6. Ranganath Misra: Mayne’s Treatise on Hindu Law & Usage, Bharat Law House, New Delhi.
Articles
1. Lekshmi Gireesh, Analysis of the family courts in protecting the rights of children, available
at: https://ijirl.com/wp-content/uploads/2022/04/ANALYSIS-OF-THE-FAMILY-COURTS-
IN-PROTECTING-THE-RIGHTS-OF-CHILDREN.pdf
2. Anupama Gupta & Ghulam Yazdani, Legal issues on advocates’ right to legal representation
before family courts in India, ILI Law Review Summer issue 2020, available at:
https://ili.ac.in/pdf/agg.pdf.
3. Salient Features of the Family Courts Act by Social laws today available at:
https://sociallawstoday.com/salient-features-of-the-family-courts-act/.