Such courts should endeavour to save and stabilise the institution of marriage, rather than destroy it. It was with these social objectives in mind that India opted for the establishment of family courts by passing the Family Courts Act in 1984.

The Family Courts Act, 1984, extends to the whole of India, except the State of Jammu and Kashmir. 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. (S. 20)

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Establishment of Family Courts in India:

The Act envisages the establishment of Family Courts by the State Government by a Notification in the Official Gazette, after consultation with the High Court of the State. As observed by the Supreme Court, 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. (Gangadharan v. State of Kerala, AIR 2006 SC 2360)

Under the Act, the State Government must establish one Family Court for every area in the State comprising of a town or city which has a population of one million or more. Family Courts may also be established for other areas in the State as the State Government may deem necessary.

The appointment of the Judges of Family 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. However, no person can be so appointed if he has attained the age of sixty-two years. When a Family 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.

Jurisdiction of Family Courts:

S. 7 of the Act lays down that Family Courts shall have and exercise all the jurisdiction which is exercised by any District Court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings relating to the following matters, namely:

(a) A suit or proceeding between the parties to a marriage for a decree of nullity of marriage (that is, 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;

(b) A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) A suit or proceeding for a declaration as to the legitimacy of any person;

(f) A suit or proceeding for maintenance; and

(g) A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

In addition to the above, a Family Court also has jurisdiction which can be exercised by a Magistrate of the First Class under Ch. IX of the Code of Criminal Procedure, 1973, in matters relating to maintenance of wives, children and parents.

Procedure to be followed by Family Courts:

Procedural matters relating to Family Courts may be summed up as under:

i. A Family Court is deemed to be a ‘civil court’ and has all the powers of a civil court. The provisions of the Code of Civil Procedure, 1908, apply to all suits and proceedings before a Family Court.

ii. In every suit or proceeding, the Family Court must, whenever it is possible to do so, endeavour to assist and persuade the parties to the litigation to arrive at a settlement.

iii. All suits and proceedings may be held in camera if the Family Court so desires, and shall be so held if either party so desires. (Proceedings are said to be held in camera when members of the public are not allowed to attend such proceedings.)

iv. In every suit or proceeding, the Family Court may take the assistance of medical and welfare experts, in discharging its functions under the Act.

v. No party to the suit or proceeding before a Family Court can engage a lawyer as a matter of right. He can do so only if the Court considers it necessary, in the interest of justice, to allow him to be represented by a lawyer.

vi. A Family Court may receive as evidence, any report, statement, document, information or other matter which, in its opinion, would assist it in effectively dealing with a dispute before it – whether or not the same would be relevant or admissible under the Indian Evidence Act, 1872.

vii. A Family Court need not record the evidence of witness at length. It would be sufficient if the Judge records, or causes to be recorded, a memorandum of the substance of the deposition of the witness. The Judge and the witness must sign such a memorandum, which then forms part of the record of the case.

viii. If evidence is of a formal nature, it may be given by way of an affidavit.

ix. The judgment of the Family Court must contain a concise statement of the case, the points for determination, the decision of the Court and the reasons for the decision.

x. All decrees and orders of a Family Court can be executed under the relevant provisions of the Code of Civil Procedure, 1908.

xi. Appeals from judgments and orders of a Family Court can be filed, both on points of law and of facts, before the High Court, within thirty days of the date of the judgment or order. No appeal can, however, be filed:

a. Against an interlocutory order of the Court, or

b. Against an order or decree passed with the consent of the parties.

All such appeals are to be heard by a Bench of the High Court consisting of two or more Judges.

Case law:

1. A wife can implead a close relative of her husband – or even a stranger – to support her claim that the husband had handed over his property to them to avoid recovery of such property. This fact would not have the effect of depriving the Family Court of its jurisdiction. (Shyni v. George, AIR 1997 Ker 231)

2. The expression “parties to a marriage” would include a divorced wife, and therefore, such a person can file proceedings in a Family Court. (Ê. A. Abdul v. T. A. Sahida, AIR 1997 Ker 269)

3. The Bombay High Court has observed that the Act does not contain any absolute bar to the appointment of advocates to represent the parties, and wherever necessary, the Court must freely make available the service of an advocate to the party before it. (Leela v. Mahadeo, AIR 1991 Bom 105)

4. A civil suit cannot be filed to declare as null and void, a decree passed by a Family Court. (Shahnaz v. Shirin, AIR 1955 Bom 30)

5. As no specific procedure has been prescribed by the Act for deciding applications for custody of minor children, the only points to be ensured in appeal are whether the procedure which was followed by the Court conformed to the rules of natural justice and whether the paramount consideration in the mind of the Family Court was the welfare of the child. (Dr. Rohit Dandekar v. Dr. Raj Kavitha, (2004) 1 DMC 216)

6. The jurisdiction of Family Courts have precedence over matrimonial and family laws statutes in force in India. (Rajan v. Shobha, AIR 1995 Bom 246)

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