UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

ADR ASSIGNMENT
TOPIC:
FAMILY COURTS

SUBMITTED TO: - SUBMITTED BY:-

DR. SUPREET GILL DHRUV KHEPAR

PROFESSOR B.A.LLB

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 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my ADR teacher
DR. Supreet Gill for their able guidance and support in completing my project
Family court

Dhruv khepar
206/21
Section =C

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 INTRODUCTION
Indian Judiciary has the largest backlog of pending cases in the world.
According to National Judicial Data Grid (NJDG), around 3.7 million cases
are pending before the High Courts, District and Taluka Courts across India
or even more than 3.7 million for over 10 years. This statistic truly justifies
“justice delayed is justice denied”. The regular courts are burdened with as
many civil matters that no attention was given to the family-related disputes.
Also, there was pressure from several welfare organisations and individuals,
demanding for fast relief in the family-related disputes, by establishing the
special courts. The Law Commission in its 59th Report (1974) also
emphasised that there is a need of distinguishing the family-related disputes
from common civil proceedings and reforming efforts should be made to
settle the disputes between a family.

Therefore, to provide speedy settlement with fewer expenses and

formalities, in disputes relating to marriage and family and to make an
agreement between the parties for their conciliation, the Family Courts Act,
1984 was enacted by the parliament. Through this act, the Family Courts
were set up in the states through which reasonable efforts for an agreement
are made before beginning a trial in other Courts.

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 BACKGROUND
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.

Parliament had passed the Family Court Act, 1984. It was brought into force when
the Central Government issued a notification in the official Gazette, and different
dates had been appointed for different States. In some States, it had been brought
into force in some cities.

In M.P. Gangadharan v. State of Kerela1, the Hon’ble Supreme Court 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.
.

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IMPORTANT PROVISIONS OF THE
FAMILY COURTS ACT, 1984
The Family Courts Act, 1984 was enacted on September 14, 1984. This act
contains 6 chapters and 23 sections. The act was enacted with the main aim of
establishment of family courts for rapid and safe settlement in the disputes arising
in family and marriage and the matters related therewith.

ESTABLISHMENT OF FAMILY COURTS IN INDIA

Section 3 of the Act empowers the State governments after consultation with the
High Court, to establish, for every area in the State comprising a city or town,
whose population exceeds one million, a family court.

JURISDICTION

Section 7 of this act confers those power and jurisdiction on the family courts
which are exercised by the District Court or Subordinate Civil Courts in their suits
and proceedings. The Explanation of this section tells us about the nature of the
suits and proceedings, which are as follows:

o A suit or proceeding for the decree of nullity of marriage, or restitution of

conjugal rights, or for the dissolution of the marriage between the parties;

o A suit or proceeding for determining the validity of a marriage or

matrimonial status of a person;

o A suit or proceeding in the matter related to the properties between the

parties to a marriage;

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 o A suit or proceeding for an injunction or order arising out of a marriage; o
A suit or proceeding for declaring the legitimacy of a person; o A suit or
proceeding for maintenance; o A suit or proceeding for the guardianship
of the person, or custody of any minor.

PROCEDURE

CHAPTER IV of the act deals with the procedure of the Family Court in deciding
cases before it. The Family Court Act, it seems opts for a less formal procedure.
Although Section 10 makes the procedure laid down under the Civil Procedure
Code applicable to the family court, it is laid down that the family court has power
to evolve its own rules of procedure which will override the rules of procedure
laid down in the Civil Procedure Code and the Criminal Procedure Code
whenever made applicable. Sections 14, 15 and 16 of the Act provide for the
informality of the procedure. Thus, any document, statement, information
relevant for the trial will be admissible in the family court even though the Indian
Evidence Act makes such documents, etc. inadmissible. The family court judge
need not record the full evidence as is done in adversial system; he just prepares
a memorandum of substance of evidence. All formal evidence will may be
tendered by affidavits, though wherever necessary, a deponent may be orally
examined. Similarly, the judge need not render a detailed judgment, though it
should contain a concise statement of the case, the points for determination, the
decision and reasons for the decision.

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.

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 COMMON CASES HEARD IN

FAMILY COURT

• DISSOLUTION OF MARRIAGE

India is one of the countries with the largest population, due to which there are
many married couples in the country. While having this large number of married
couples, there will be more chances of having more cases of disputes between the
couples and their family. And for seeking remedy they will surely approach the
courts.

In India, the family court can accept the appeals for grant of decree of divorce
under various acts like Dissolution of Muslim Marriage Act, 1939, Muslim
Women (Protection of Rights on Divorce) Act, 1986, the Parsi Marriage and
Divorce Act, 1936, the, Divorce Act, 1869the Special Marriage Act, 1954,
Foreign Marriage Act, 1969 etc. For the dissolution of Hindu marriage, one can
file an appeal for divorce under Hindu Marriages (validation of proceedings) Act,
1960.

In the case of Reddy Anada Rao v. Ms Totavani Sujatha1, the appellant and the
respondent were living their life by following Christian religion but they got
married as per the Hindu rituals in a Hindu temple. The appellant i.e., the husband
claimed that he was forced to marry the respondent therefore, he appealed for the

1
2003 (1) ALD 713, 2003 (1) ALT 77

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dissolution of his marriage and to set aside his marriage certificate. The question
was raised by the office of the family court that the marriage was itself null and
void as per the provisions of Hindu Marriage Act, 1955 so there is no need for
the suit. The judge held that the appeal for dissolution of marriage is not

maintainable in the family court as Section 5 and Section 11 of the Hindu

Marriage Act has clearly laid down that the marriage is null and void if it has been
done with coercion or without the consent of any party. Later, the husband
appealed in the High Court for which the court held that as per the Explanation
(a) of Section 7 of Family Courts Act, 1984, the family court has jurisdiction in
the concerned matter. As per the provisions of this act, the family court has
jurisdiction over the disputes arising out of the marriage of any caste or creed.

• CHILD CUSTODY
The explanation (g) in Section 7(1) provides that the family court has jurisdiction
to grant the custody of the child to a proper person and to make that right person
the guardian of a minor. The cases related to the custody of the child are filed
before the family court where he usually resides. For example, if the father is
residing in Uttar Pradesh and the mother along with the minor child is residing in
Mumbai and the father wants to have custody of the child then he has to file the
case in Mumbai’s family court. Thus, the family court has exclusive jurisdiction
over child custody cases. The family court has also the power to accept the
petitions made under the Guardian and Wards Act, 1890 and the Hindu Minority
and Guardianship Act, 1956.

• SECURITY ORDERS- DOMESTIC VIOLENCE

The family courts act has not specifically mentioned the jurisdiction of the family
court in matters of domestic violence. And this is the area where family courts are

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lacking. Though the act hasn’t made any provision related to the matters of
domestic violence. However, there is a provision under the Protection of women
from Domestic Violence Act, 2005, according to which the family court can
entertain the matters related to domestic violence. The DV Act is not wholly a
criminal law; it has also granted powers to the civil and family courts. As per
Section 26 of the DV Act, the victim can not only claim relief from the Magistrate
but also from the family court and other civil courts.

• MAINTENANCE
Under the family court act, explanation(f) of Section 7(1) clearly provides that
the family courts have jurisdiction over the suits or proceedings for maintenance.
Also under Section 7(2), the family courts have the power to exercise a
jurisdiction which is exercised by a Magistrate of the first class under Chapter IX
of the Code of Criminal Procedure, 1973, which is related to maintenance of wife,
children and parents. This means the family courts can grant maintenance under
Section 125 of CrPC.

The Supreme Court in the case of Rana Nahid v. Sahisul Haq Chisti (2020), has
given a contrasting judgement over the jurisdiction of the family court under
Muslim Women (Protection of Rights on Divorce) Act, 1986. The facts of the
case are: a Muslim woman moved to the family court of Ajmer under Section 125
of CrPC for claiming maintenance from her husband as she was harassed for
dowry and was thrown out of the home. The family court accepted the application
made under Section 125 of CrPC, as an application under Section 3 of the 1986
Act. The family court ordered the husband to pay Rs 3 Lakh to his wife and Rs
2000 every month for the maintenance of his child.

The husband moved to the High Court against the order of the family court and
questioned the jurisdiction of the family court under the 1986 Act. The High

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Court held that the family court has no jurisdiction to pass such an order under
the 1986 Act. However, the petitioner can approach the Court of competent
Magistrate under Section 3 of the 1986 Act. The wife approached the Supreme
Court against the order of the High Court.
Justice Bhanumati was of the opinion that the family court has no jurisdiction for
accepting an application filed under Section 3 of the 1986 Act. She supported her
opinion by saying that Section 3 of the 1986 act confers exclusive power on the
Magistrate of First Class to entertain applications made under the said section.
She also made reference to the judgements passed by various High Courts.
However, Justice Indira Banerjee holds the position that the family court has the
jurisdiction for accepting applications made under Section 3 of the 1986 Act. She
held that the preamble of the Family Courts Act suggests that it is a secular statute
which means all the laws are applied in the matters irrespective of the religion.
Also, Section 7(1), of the act provides that the family court has the same powers
and jurisdiction as of a District or Subordinate Civil Court to entertain suits or
proceedings for maintenance. She also made a reference to the principle of
equality under Article 14 and Article 15 of the Indian Constitution and extended
the jurisdiction of the family court for the benefits of Muslim divorced women.

• PROPERTY DISPUTES
As per the explanation (c) of Section 7(1) of the family courts act, the family court
has jurisdiction over the disputes related to the property of the parties to the
marriage. Generally, the disputes between the parties to the marriage arise when
the decree of the divorce has been passed. The family court can entertain the suit
or proceeding related to the disputes of the property of the parties of the marriage
by satisfying two conditions:

• Such a dispute must have arisen between the parties to the marriage only;

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• Such a dispute must have arisen due to the property of either party.

In the case of Mrs Mariamma Ninan v. K.K. Ninan2, the petitioner i.e., the wife
approached the family court for the partition of the property and claimed her
separate possession as she also contributed Rs 3 lakh for the construction of the

property. The family court didn’t accept the petition and directed the petitioner to
file a Civil suit. However, the High Court set aside the order of the family court
and held that the said matter falls under the jurisdiction of the family court as per
Section 7(1) of the family courts act. The high court held that the family courts
have jurisdiction to entertain the disputes related to the partition of the property
of the parties to the marriage. Therefore, the high court resend the matter to the
family court and directed the court to entertain the matter and settle the dispute.

2
I (1997) DMC 570

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 CONCLUSION
Before 1984, all family matters were heard by the ordinary civil court judges
who used to take a long time to provide relief to the parties. In 1984, the
Family Courts Act was passed and came into force. The main objective of
the act was to take family and marital disputes out from the overburdened
and traditional courts of law and to bring them in the simple court where a
layman could also understand the procedure of the court. The main aim of
the act was to follow the conciliatory approach to promote a settlement
between the parties and provide them with speedy relief. But these aims
were not fulfilled. Nowadays the conclusion has been derived that the
speedy remedy is a myth. The family courts need to adopt various
appropriate steps for the smooth functioning of the family court.

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 BIBLIOGRAPHY
BOOKS:
1. THE FAMILY COURTS ACT, 1984

2. TRIPATHI, DR. S.C., ALTERNATIVE DISPUTE RESOLUTION

(CENTRAL LAW PUBLICATIONS, ALLAHABAD, THIRD EDITION,
2018)

WEBSITES:
1. https://www.legalserviceindia.com/article/l356-
FamilyCourts-in-India.html

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