Indian Legal System > Civil Laws > Family Laws > The Family Courts Act, 1984 > Establishments of Family Courts
India has one of the oldest legal systems and practices in the world. Its law and jurisprudence stretch back to many centuries, forming a living tradition which has grown and evolved with the lives of its diverse people. India is a land of diversified culture, local customs, and various religions. People of different religions, as well as traditions, are regulated by all the different sets of personal laws in order to relate to family affairs. Due to a high number of married persons, marital disputes increase. Family courts have a very crucial role to play in reducing the load of disputes on an overburdened judicial system, providing relief to litigants, who are forced to suffer prolonged delays in getting justice. Counseling and conciliation are the two pillars on which the whole structure of family courts is built. In this article, we shall deal with the origin and development of family courts in India. Family Court of Mumbai in Maharashtra is at BKC Bandra.
Family courts are specialized courts that were established with the goal of preserving the welfare of the family through the use of a multi-disciplinary approach to resolving family problems within the framework of the law. These courts aim to protect individuals’ legal rights on the one hand, and to serve as a guide, helper, and counselor on the other, to help families deal with problems and restore family harmony.
The environment of family courts expected to be different from regular courts. The atmosphere is supposed to be quiet informal and relaxed. And the judges need not put on robes and judges need not set on raised platform.
Historical Background:
The need to establish the family courts was first emphasized in India by the late Smt. Durgabai Deshmukh, after a tour of China in 1953, where she had an occasion to study the working of family courts. She discussed the subject with certain judges and legal experts and then made a proposal to set up family courts in India to Prime Minister Jawaharlal Nehru. Another reason for setting up of family courts was the mounting pressures from several women’s associations, welfare organizations, and individuals for establishment of such courts with a view to provide a forum for speedy settlement of family-related disputes. Importance was laid on a non-adversarial method of resolving family disputes and promoting conciliation and securing speedy settlement of disputes relating to marriage and family affairs.
Before the establishment of family courts, the family matters fell within the jurisdiction of the ordinary civil courts of the country. Where other civil matters were also litigated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family, the court ought to adopt and approach radical steps distinguished from the existing ordinary civil proceedings and that these courts should make reasonable efforts at settlement before the commencement of the trial. Gender-sensitized personnel including judges, social workers and other trained staff should hear and resolve all the family-related issues through elimination of rigid rules of procedure. The Code of Civil Procedure was amended to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family.
After a lot of debate and discussion, the Family Courts Act came into force on 14.9.1984. The whole idea behind the Act is to ensure speedy and inexpensive relief with the least formality and technicalities.
The Family Courts Act, 1984:
The Family Courts Act, 1984 extends to the whole of India. The President gave his assent to the Family Courts Act on September 14, 1984. Under Section 20 of the Act, the Act has been given an overriding effect and its provisions are to have effect notwithstanding anything inconsistent therewith contained in any other law in force in India. The declared aim of the Family Courts Act was ‘settlement of disputes relating to marriage and family affairs and for matters connected with it’, the disputes other than the categories of proceedings relatable to matrimonial affairs, such Court will have no jurisdiction. The concept of adoption is outside the purview of the Family Courts Acts.
Purpose of Setting Up of Family Courts:
The immediate reason for setting up of family courts was the mounting pressures from several women’s associations, welfare organzsations and individuals for establishment of special courts with a view to providing a forum for speedy settlement of family-related disputes. Emphasis was laid on a non-adversarial method of resolving family disputes and promoting conciliation and securing speedy settlement of disputes relating to marriage and family affairs.
Establishment of Family Courts:
Section 3 of the Act lays provision for the establishment of one Family Court. The State must establish a Family Court for every area in the State comprising a city or town whose population exceeds one million in consultation with the High Court by giving notification in Official Gazette. Similarly, the State Government, after consultation with the High Court, must specify, by notification, the local limits of the area to which the jurisdiction of such Court shall extend and may, at any time, increase, reduce or alter such limits. State Government can establish Family Court for other areas in the State as the State Government may deem necessary.
In Gangadharan v. State of Kerala, AIR 2006 SC 2360 case, the Supreme Court observed that the State Governments should establish Family Courts not only because it is so provided in the Act, but also to discharge its social obligation to provide a less formal platform for resolving family disputes.
Appointment of Judges in Family Courts:
Section 4 of the Act provides for the appointment of judges of FamilyCourts. The appointment of the Judges in such Courts is made by the State Government, which may appoint one or more Judges for each such Court. Persons who are appointed Judges must have the necessary qualifications prescribed by the Act. Additionally, they must be committed to the need to protect and preserve the institution of marriage and to promote the welfare of children. Preference is to be given to women when making such appointments.
Qualification Required to Be Judge of Family Court:
- a person should have, for at least seven years’ experience as a Judicial officer in India or office of a Member of a Tribunal or any post under the Union or a State requiring special knowledge of law or
- the person has been an Advocate of a High Court or two or more such Courts in succession for seven years or
- the person possesses such other qualifications as prescribed by Central Government in consultation with Chief Justice of India.
- The person must be less than sixty-two years.
- The person is devoted to protecting and preserving: the institution of marriage, welfare of children and conciliation and counseling as techniques for settling disputes
However, no person can be so appointed if he has attained the age of sixty-two years. When such Court consists of more than one Judge, each Judge can exercise any or all of the powers conferred on the Family Courts by the Act.
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