The need to establish the Family Courts was first emphasized by late Smt Durga Bai Deshmukh

after her visit to China in the year 1953, where she had the opportunity to study the working of
Family Courts. She discussed the subject with Honble Mr Justice M.C. Chagla of Bombay High
Court and also Honble Mr Justice P.B. Gajendragadkar, then the Judge, Bombay High Court.
She also discussed the matter of setting up of the Family Courts with the then Prime Minister
Pandit Jawahar Lal Nehru. Several women associations, welfare organizations and individuals
also mounted pressure for setting-up of the Family Courts to provide a forum for speedy
settlement of family relates disputes. The emphasis was on a non- adversarial method of
resolving family disputes and promoting conciliation and securing speedy settlement of dispute
relating to marriage and family affairs.
The Law Commission in its 59th report (1974) also recommended for setting-up of special courts
where rules of procedure would be simpler. The Law Commission also emphasized that such
courts may adopt and approach radical steps distinguished from the existing civil courts and that
such courts should make reasonable efforts for settlement before commencement of the trial. In
1975, the Committee on the Status of Women recommended that all matters concerning the
family be dealt with separately.
In 1984, the Family Courts Act was passed and it came into force on September 14, 1984. The
objective was to take family and marital disputes away from the overcrowded intimidating and
congested environment of traditional courts of law and bring them to congenial and sympathetic
surroundings. The aim was conciliation between the estranged family members and not
confrontation.
Family Court Mumbai was established with effect from 7th October 1989.it began with 5 Courts
initially and during May 1995 6th and 7th Court operations started.
[http://ecourts.gov.in/mumbai/family]

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 consideration.
Further, pertinent to note here is that Marriage as an institution has become the subject of great
judicial scrutiny. There are a number of judicial provisions dealing with marriage and its various
aspects. The result is that, in addition to the various advantages that these legal provisions may
provide; the privacy of this institution has been threatened. As per studies conducted in Mumbai
and Delhi, 40 % of marriages are heading towards divorce. There are also cases of misuse of
provisions like Section 498A of the Indian Penal Code, Protection of Women from Domestic
Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few. There
are issues like alimony which become the topic of great controversy and cause harassment to
families. What further becomes a problem is that personal issues get intertwined with the legal
issues and lead to the unnecessary prolonging of the disposal of these cases. The younger
generation, being made a scapegoat in the changing times due to the ensuing cultural war
between Conservatives and Liberals, wastes its useful youth in the precincts of the litigating
corridors of the family courts, criminal courts and magistrate courts waiting in long queues being
expectant of receiving justice.
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.
To this background, a significant development has been the recent setting up of the Family Court
in Delhi. Though such courts have been set up and are functioning in other states, the setting up
of a family court in the Capital is a significant development and a step which was necessary to be
taken. The main purpose behind setting up these Courts was to take the cases dealing with family

matters away from the intimidating atmosphere of regular courts and ensure that a congenial
environment is set up to deal with matters such as marriage, divorce, alimony, child custody etc.
As mentioned earlier, an effective way of tackling the problem of pendency is to improve the
efficiency of the system rather than changing the system altogether. A significant step is to make
use of the available human resource. These family courts at Delhi are equipped with counsellors
and psychologists who ensure that the disputes are handled by experts who do not forget that
while there may be core legal issues to be dealt with; there is also a human and psychological
dimension to be dealt with in these matters. The role of the counsellors is not limited to
counselling but extends to reconciliation and mutual settlement wherever deemed feasible.
Procedure followed by the family courts- advantages of a conciliatory approach.
The Family Courts are free to evolve their own rules of procedure, and once a Family Court does
so, the rules so framed over ride 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 shackles of a formal legal system and the regular process of adjudication causes
unnecessary prolonging of the matter and the dispute can worsen over time. This can be a very
traumatic experience for the families and lead to personal and financial losses that can have a
devastating effect on human relations as well. This again points to the importance of having
guidance counsellors and psychological experts to deal with such matters.
The Act stipulates that a party is not entitled to be represented by a lawyer without the express
permission of the Court. 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
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.
Issues of concern- are the Family Courts functioning towards fulfilling their purpose?
The Family Courts main purpose is to assist the smooth and effective disposal of cases relating
to family matters. However, like any other system there are certain issues which become a matter
of concern when it comes to the working of these courts. One such issue is that of continuity. For
example, in the family courts at Tamil Nadu, the counsellors are changed every three months.

Thus, when cases stretch for a period of time which is longer than this, the woman or the
aggrieved person has to adjust with new counsellors and their story has to be retold several
times.
A major drawback of the Family Courts Act happens to be that it doesnt explicitly empower
Courts to grant injunctions to prevent domestic violence. While there has been progress, viz the
enactment of the Protection of Women from Domestic Violence Act, 2005 which now extends to
punishing women for acts of violence as well; there are still issues of jurisdiction to be tackled. It
must be understood that the Family Courts Act has to be read in totality i.e. in accordance with
the provisions in other laws, for example, the Civil Procedure Code on matters of jurisdiction.
Since the Family Court has restrictive jurisdiction and does not have the power to decide issues
of contempt, people do not seem to take the court as seriously as they would a magistrate or a
city civil court. Further, it was laid down in the Family Courts Act that the majority of judges
should be women. However, this provision has not been complied with. In the course of the
workshop organised in March 2002 by the National Commission for Women, it was noted that
there were only 18 women judges till then in the Family Courts in India out of 84 judges in all
the 84 courts that existed at that time
Government is empowered to make rules prescribing some more qualifications. Apart from
prescribing the qualification of the Judges of Family Courts, the Central Government has no role
to play in the administration of this Act. Different High Courts have laid down different rules of
the procedure. However, this lack of uniformity could also be one of the reasons behind the fact
that family disputes are still being heard by civil courts. Family courts also need to align
themselves with womens organizations and NGOs dealing with the welfare of families, women
and children.
Another matter of confusion is that the Act, by virtue of Section 13 provides that the party before
a Family Court shall not be entitled as of right to be represented by a legal practitioner. However,
the court may, in the interest of justice, provide assistance of a legal expert as amicus curiae. This
is an example of which the objective behind the family court is defeated due to the procedural
lapses. The fact that the proceedings are conciliatory does not relieve them of the complicated
legal issues which may be involved in the family dispute. The question is whether a lawyer's
participation will be useful or detrimental to the performance of a family court. That is the
crucial issue. It was suggested at the workshop that the Women's Commission should consider
whether an amendment could be proposed to allow participation of lawyers subject to a proviso
giving power to the court to terminate his vakalatnama if he uses delaying tactics by unnecessary
adjournments. If such control is given to the court the lawyers will not be able to get
adjournments. Further, a lay person may be totally unaware of the legal jargon that invariably
comes into play during the proceedings.

Further, the substantive aspect of the law cannot be ignored because it is what cases are made of.
A practical example of a problem with the substantive law is that many times, the husband in a
divorce cases resorts to reconciliation mainly because he wants to escape the responsibility of
giving maintenance to his wife.
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
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.
Reference:
The Family Courts Act, 1984.
Memorandum to the Chairman, Karnataka Law Commission for Judicial Reforms, by the Public
Relations Officer, Save Indian Family Foundation, Bangalore.
Jamwal, N., Have Family Courts lived up to Expectations? Mainstream, Vol XLVII No 12,
March 7, 2009.
Mathew, P.O. and Bakshi, P.M., Family Courts. Indian Social institute. Delhi, 1986
http://www.blogcatalog.com/blog/voice-of-women india/e9ff5198e7da7b5e528e004799249bdf
[http://www.legalserviceindia.com/article/l356-Family-Courts-in-India.html]