Family Courts Act

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INTRODUCTION

For faster trial and quick disposal of matrimonial disputes, Family Courts are established in India. In view of an increase in the incidence of matrimonial disputes and increasing pendency of the cases in civil and criminal courts, Judges, women organizations etc. requested the Central Government to pass a special legislation to deal exclusively with matrimonial matters. The Law Commission vide its reports 54 and 55(1974) recommended the Government to pass a special enactment for the establishment of Court/Courts to deal with family matters. And thus, in 1984, so as to establish Family Courts in India, the Family Courts Act was passed.

In M.P. Gangadharan v/s. State of Kerala(2006 SC), the Supreme Court has held that Family Court should be established not only because it is provided in the Act state must be alive to the situation that it has a duty to provide all infrastructure to the forum of dispute resolution.

CONCEPT OF FAMILY COURT

  • In some western countries, family courts are already functioning. Now it is accepted by most, that litigation in respect of any matter concerning family, whether divorce, maintenance, custody of children and trial of juvenile offenders should not be viewed in terms of the failure of success of the legal action, but as a social therapeutic problem. No court which is engaged in finding out what is better for the welfare of the family, whether a marriage has broken down or not, who should have custody of children or which spouse needs maintenance, should rest content with the assertions and contentions of the parties and evidence led by them to prove or disprove their contentions and allegations. The court engaged in this task requires a less formal and more active investigational and inquisitional procedure. In short, this will imply that it is not litigation in which parties and their counsels are engaged in winning or defeating a legal action but parties, workers, welfare officers and psychiatrists, all are engaged in finding out problems engaging the attention of the court

The family court is marked by integrated broad-based service to matrimonial disputes. Essentially, the system is meant to stabilize marriage and preserve the family. Obviously, for such a system, the adversary litigation system is hardly appropriate. Such a system visualizes the assistance of the specialized persons and agencies.

Containing 23 sections, the legislation is progressive in nature. It empowers the States and High Courts concerned to frame necessary rules.  It aims to promote speedy settlement of disputes, also promoting mediation and conciliation. With the consultation of the State Government, the High Courts are empowered to establish courts in cities with a population that exceeds one million. Judges of the Family Courts are appointed by the State Government with the consent of the High Court.

Either a single judge or more than one judge can be consisted by A Family Court and it ranks lower than a high court but higher than a district court.

Qualifications for the appointment as Judge of the Family Court:

  • At least 7 years of experience required as Judicial Officer of High Court
  • Should be a member of a Tribunal etc.
  • Age of retirement: 62 years.
  • Women are preferred.

JURISDICTION OF THE FAMILY COURT

Section 7 of the Family Courts Act, 1984 provides for the jurisdiction of family courts:

  1. A suit or proceeding between the parties to a marriage for a decree of nullity. Restitution of Conjugal Rights, Judicial Separation and Divorce.
  2. A suit or proceeding as to the validity of a marriage or as to the Matrimonial status n person proceeding between the parties with respect to the property.
  3. Custody and financial support to the children.
  4. Maintenance of wives, children and old parents.

In Shyni v/s. George, (1997 Kerala), it was held that wife can implead a close relative of her husband or even a stranger on allegations that the husband had handed over the property to them in a suit for recovery the property. This would not oust the jurisdiction of the Family Courts.

In K.A. Abdul Jake/ v/s. TA. Sahida (1997 Kerala): The expression “parties to a marriage” was held to include a divorced wife and a petition filed by her for declaration and partition of property jointly acquired by them would be maintainable.

DECREE OF FAMILY COURT-CIVIL COURT’S JURISDICTION

A civil suit to declare the decree of family court as null and void is not maintainable (Shalmaz v. Shbin, 1995 Bombay). And thus jurisdiction of the family court has the power of precedence over matrimonial or family legislation.

By Maahi Mayuri

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