CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT OF ALTERNATIVE DISPUTE RESOLUTION:FAMILY COURTS UNDER FAMILY COURTS ACT 1984
PRESENTED BY: - DEEPAK KUMAR
B.B.A. LLB, 6th SEMESTER, 3rd YEAR
ROLL NO: - 1015
SUBMITTED TO: - MR. HRISHIKESH MANU

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CHAPTERIZATION
I.
II.
III.

INTRODUCTION
PURPOSE OF FAMILY COURTS
STRUCTURE OF FAMILY COURTS
IV. PROCEDURE AND JURISDICTION OF FAMILY

COURTS
V. EFFECTIVENESS OF FAMILY COURTS
VI. CONCLUSION
VII.

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OBJECTIVE OF THE RESEARCHER

The objective of the researcher is to acknowledge about: The background for passing this act
Its purpose and procedure followed therein
Effectiveness of the courts established

HYPOTHESIS
The hypothesis of the researcher is that the family courts established under
Family Courts Act 1984 function as the traditional legal system in resolving
dispute or as different set up like arbitration or conciliation forums.

RESEARCH METHODOLOGY
The researcher has used doctrinal method to collect information about the given
topic. The researcher has confined his research to various articles, websites, and
online surveys to obtain information.

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ACKNOWLEDGEMENT
I am feeling highly elated to work on the topic Family
courts under Family Courts Act 1984 under the guidance
of my Alternative Dispute Resolution subject teacher
MR. HRISHIKESH MANU . I am very grateful to her
exemplary guidance. I would like to enlighten my readers
regarding this topic and hope that I have done my best to
pave the way for bringing more luminosity to this topic.
I want to thanks my friends because without their cooperation and knowledge it would have been difficult for
me to collect information for this project. I also want to
thanks our librarian who helped me in collecting every
relevant materials regarding to my topic available to me at
the time of my research work.
At last I am obliged to everybody who was part of my
project and helped me to make this project.

Deepak

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1. 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.
There are cases dealing with a broad spectrum of issues such as family matters and property
which continue for generations. 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 effectively1. 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 divorce2. 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 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 women3.

1 http://www.lawisgreek.com/why-we-have-family-law-courts-in-india, accessed on 26th April 2016.

2 http://dcw.delhigovt.nic.in/Family%20Courts.htm., Accessed on 26th April 2016.
3 http://www.legalserviceindia.com/article/l356-Family-Courts-in-India.html. accessed on 26th April
2016.
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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 Delhi4.
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. The 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 feasible5.

2. PURPOSE OF THE FAMILY COURTS

The Family Courts Act 1984 established the creation of 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 establishing it. One or more judges constitute the Family Courts but each judge is
competent to exercise all the powers of the court.
The Family Courts Act also covers areas of the following Acts:
i. Hindu Marriage Act, 1955
ii. Special Marriage Act, 1954
iii. Hindu Adoption and Maintenance Act, 1956
iv. Parsi Marriage and Divorce Act, 1936
v. Indian Divorce Act, 1869
vi. Christian Marriage Act, 1972
vii. Dissolution of Muslim Marriage Act, 1939
viii. Hindu Minority and Guardianship Act, 1956
ix. Criminal Procedure Code, 1973, Sec 125, 126, 127 and 128
4 http://www.legalserviceindia.com/article/l356-Family-Courts-in-India.html. accessed on 26th April
2016.
5 http://www.24dunia.com/english/search/objectives-of-family-court-act.html. accessed on 26th April
2016.
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x. Guardians and Wards Act, 1890.

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 therewith6.

Functions
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 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 Court7. 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.

6 The Family Courts Act 1984.

7 http://www.ektamadurai.org/public/pdf/Family_Court_Study_Book_let.pdf. accessed on 26th April
2016.
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It is the duty of the Family Court in the first instance to assist and persuade the parties in
arriving at a settlement in respect of the subject-matter of the suit or proceeding in consistent
with the nature and circumstances of the case and follow such procedure as it may deem fit8.
If at any stage, it appears to the Family Court that there is a reasonable possibility of a
settlement between the parties, the proceedings will be adjourned for such period as it thinks
fit to enable attempts to be made to effect such a settlement.
Legal Jurisdiction of Family Law Courts
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 following:
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.

3. STRUCTURE OF THE FAMILY COURTS

For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this
Act, the State Government, after consultation with the High Court, and by notification
establish for every area in the State comprising of city or town whose population exceeds one
million, a Family Court. The State Government shall, after consultation with the High Court
shall specify the total limits of the area to which the jurisdiction of a Family Court shall
extend and may, at any time, increase, reduce or alter such limits9.
APPOINTMENT OF JUDGES:
(1) The State Government may, with the concurrence of the High Court, appoint one or more
persons to be the Judge or Judges of a Family Court10.
(2) When a Family Court consists of more than one Judge,-(a) each of the Judges may exercise all or any of the powers
(b) the State Government may appoint any of the Judges to be the Principal Judge and any
other Judge to be the Additional Principal Judge;

8 http://ncw.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf. Accessed on 26th

April 2016.
9 The Family Courts Act 1984.
10 Section 4 The Family Courts Act 1984.
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(d) the Additional Principal Judge may exercise the powers of the Principal Judge in the event
of any vacancy in the office of the Principal Judge or when the Principal Judge is unable to
discharge his functions owing to absence, illness or any other cause.
QUALIFICATION OF JUDGES:
A person shall not be qualified for appointment as a Judge unless he11-(a) has for at least seven years held a judicial office in India or the office of a member of a
Tribunal or any post under the Union or a State requiring special knowledge of law; or
(b) has for at least seven years been an advocate of a High Court or of two or more such
Courts in succession; or
(c) possesses such other qualifications as the Central Government may, with the concurrence
of the Chief Justice of India, prescribe.
(d) The maximum age limit should be of sixty-two years.
In selecting persons for appointment as Judges, it must be made sure that
that persons committed to the need to protect and preserve the institution of marriage

and to promote the welfare of children and

qualified by reason of their experience and expertise to promote the settlement of

disputes by conciliation and counselling are selected; and

preference shall be given to women.
Association of social welfare agencies, etc.
The State Government may, in consultation with the High Court, provide, by rules, for the
association, in such manner and for such purposes and subject to such conditions as may be
specified in the rules, with a Family Court of12,(a) institutions or organisations engaged in social welfare or the representatives thereof;
(b) persons professionally engaged in promoting the welfare of the family;
(c) persons working the field of social welfare; and
(d) any other person whose association with a Family Court would enable it to exercise its
jurisdiction more effectively in accordance with the purposes of this Act.
Counsellors, officers and other employees of Family Courts13:
(1) The State Government shall in consultation with the High Court, determine the number
and categories of counsellors, officers and other employees required to assist a Family Court
in the discharge of its functions and provide the Family Court with such counsellors, officers
and other employees as it may think fit.
(2) The terms and conditions of association of the counsellors and the terms and conditions of
service of the officers and other employees, referred to in sub-section (1), shall be such as
may be specified by rules made by the state government.
11 Section 4 The Family Courts Act 1984.
12 Section 5 The Family Courts Act 1984.
13 Section 6 The Family Courts Act 1984.
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4. PROCEDURE OF THE FAMILY COURT

Procedure generally14
(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of
Civil Procedure, 1908 shall apply to the suits and proceedings before a Family Court and for
the purposes of this Code, a Family Court shall be deemed to be a civil court and shall have
all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of
Criminal Procedure, 1973 shall apply to the proceedings before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying
down its own procedure with a view to arrive at a settlement in respect of the subject-matter
of the suit or proceedings.
Other Proceedings:
The proceedings may be held in camera if the Family Court so desires and shall be so

held if either party so desires.

The Family Court is allowed to secure the services of a medical expert or such person
(preferably a woman where available), whether related to the parties or not, including
a person professionally engaged in promoting the welfare of the family for the

purposes of assisting the Family Court in discharging the functions.

No party to a suit or proceeding before a Family Court shall be entitled, as of right, to
be represented by a legal practitioner unless the Family Court considers it necessary

in the interest of justice it may seek the assistance of a legal expert as amicus curiae.
It may receive as evidence any report, statement, documents, information or matter
that may, in its opinion, assist it to deal effectually with a dispute, whether or not the

same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.
It shall not be necessary to record the evidence of witnesses, but the Judge shall,
record or cause to be recorded, a memorandum of the substance of what the witness
deposes, and such memorandum shall be signed by the witness and the Judge and

shall form part of the record.

The evidence of any person where such evidence is of a formal character, may be
given by affidavit and the court may summon and examine any such person as to the

facts contained in the affidavit.`

Judgment:
Judgment of a Family Court shall contain a concise statement of the case, the point for
determination, the decision thereon and the reasons for such decision. A decree or an order

14 Section 10 The Family Courts Act 1984.

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shall have the same force and effect as a decree or order of a Civil Court and shall be
executed in the same manner as is prescribed by the Code of Civil Procedure, 190815.
An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure,
1973 shall be executed in the manner prescribed for the execution of such order by that Code.
A decree or order may be executed either by the Family Court which passed it or by the other
Family Court or ordinary civil court to which it is sent for execution16.
Appeal and Revision17
(1) An appeal shall lie from every judgment or order, not being an interlocutory order, of a
Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of
the parties.
(3) Every appeal under this section shall be preferred within a period of thirty days from the
date of the judgment or order of family Court.
(4) The High Court may, call for and examine the record of any proceeding in which the
Family Court situate within its jurisdiction passed an order, for the purpose of satisfying itself
as to the correctness, legality or propriety of the order, not being an interlocutory order.
(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order
or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or
more Judges.
Power of High Court to make rules18:
The High Court may, make such rules as it may deem necessary for carrying out the purposes
of this Act. The rules may be made for:
(a) normal working hours of Family Courts and holding of sittings of Family Courts on
holidays and outside normal working hours;
(b) holding of sittings of Family Courts at places other than their ordinary places of sitting;
(c) efforts which may be made by, and the procedure which may be followed by, a Family
Court for assisting and persuading parties to arrive at a settlement.

JURISDICTION OF THE FAMILY COURT

15 Section 17 The Family Courts Act 1984.
16 http://www.legalhelpindia.com/family-courts-act/family-courts-section.html. accessed on 26th April
2016.
17 Section 19 The Family Courts Act 1984.
18 Section 21 The Family Courts Act 1984.
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A Family Court shall have jurisdiction and exercise same19:

(a) as the jurisdiction exercisable by any district court or any subordinate civil court under
any law for the time being in force in respect of suits and proceedings of the nature referred
to in the explanation; and
(b) be deemed, to be a district court or, subordinate civil court for the area to which the
jurisdiction of the Family Court extends.
Suits and proceedings of the following nature, namely:-

a decree of nullity of marriage (declaring the marriage to be null and void or, as the
case may be, annulling the marriage) or restitution of conjugal rights or judicial

separation or dissolution of marriage;

the validity of a marriage or as to the matrimonial status of any person;
the property of the parties or of either of them;
an order or injunction in circumstance arising out of a marital relationship;
for a declaration as to the legitimacy of any person;
for maintenance;
in relation to the guardianship of the person or the custody of, or access to, any minor.

(c) a Family Court shall also have and exercise the jurisdiction exercisable by a Magistrate of
the First Class in cases relating to order for maintenance of wife, children and parents.

Exclusion of jurisdiction and pending proceedings

Where a Family Court has been established for any area, no district court or any subordinate
civil court shall, in relation to such area, have or exercise any jurisdiction in respect of any
suit or proceeding of the nature referred to in the Explanation to that sub-section. No
magistrate shall, in relation to such area, have or exercise any jurisdiction or power under
Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
Every suit or proceeding of the nature referred to in the explanation to sub-section (1) of
section 7 which is pending immediately before the establishment of such Family Court before
any district court or subordinate court or, before any magistrate under the said Code; and
which would have been required to be instituted or taken before such Family Court if, before
19 Section 7 The Family Courts Act 1984.
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the date on which such suit or proceeding was instituted or taken, this Act had come into
force and such Family Court had been established shall stand transferred to such Family
Court on the date on which it is established.

EFFECTIVENESS
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 continuity20. 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.
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 court21.
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. 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 children22.
20 D Nagasaila (1992): Family Courts: A Critique, Economic and Political Weekly, Vol. 27, No. 33, Aug.
15, 1992.
21 Jamwal, N., Have Family Courts lived up to Expectations? Mainstream, Vol XLVII No 12, March 7,
2009.
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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.

5. CONCLUSION
The lack of uniformity regarding the rules laid down by different states also leads to
confusion in the proper application of the Act. 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. 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.
22 Mathew, P.O. and Bakshi, P.M., Family Courts. Indian Social institute. Delhi, 1986. P-146.
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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 have to explain her problems afresh to the new counsellors each time. 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.
The issue that whether it works as traditional legal system or as different setup when
resolving dispute is controversial because it is provided in the act that the court has to ensure
the settlement of dispute by mediation or conciliation method. But in order to do the
procedure applicable is same as used in any civil court or criminal court because there is
applicability of the Civil Procedure Code as well as Criminal Procedure Code also. Also the
provision that party to a suit or proceeding under the Family Court are not entitled to be
represented by a legal practitioner but the court may requisition the services of a legal expert
as amicus curae. Many other provisions like this highly criticizes the position of Family
courts as that whether it is better than court in Traditional legal system or same.

Bibliography
1. The Family Courts Act 1984.
2. D Nagasaila (1992): Family Courts: A Critique, Economic and Political Weekly, Vol.
27, No. 33, Aug. 15, 1992.
3. http://www.legalhelpindia.com/family-courts-act/family-courts-section.html.
4. http://www.legalserviceindia.com/article/l356-Family-Courts-in-India.html.
5. http://ncw.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf
6. http://www.lawisgreek.com/why-we-have-family-law-courts-in-india.
7. http://indialawyers.wordpress.com/tag/family-court.
8. http://dcw.delhigovt.nic.in/Family%20Courts.htm.
9. http://www.ektamadurai.org/public/pdf/Family_Court_Study_Book_let.pdf.
10. http://www.24dunia.com/english/search/objectives-of-family-court-act.html
11. Jamwal, N., Have Family Courts lived up to Expectations? Mainstream, Vol XLVII
No 12, March 7, 2009.
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12. Mathew, P.O. and Bakshi, P.M., Family Courts. Indian Social institute. Delhi, 1986.

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