Family Courts (Amendment) Bill

Context

The Rajya Sabha has approved the Family Courts (Amendment) Bill, which aims to provide statutory protection to family courts established in Himachal Pradesh and Nagaland.

Relevance

GS Paper – 2: Government Policies & Interventions, Judiciary

Mains Question

What exactly are family courts? How do they work? Are they a good alternative dispute resolution forum? Examine. (250 Words)

Family Courts (Amendment) Bill:

• In July 2022, the Family Courts (Amendment) Bill was introduced and passed in Lok Sabha.
• The bill modifies the Family Courts Act of 1984.
• The Family Courts Act of 1984 empowers state governments to create Family Courts.
• The Central Government has the authority to announce dates for the Act’s implementation in various states.
• The governments of Himachal Pradesh and Nagaland have established Family Courts in their respective states under the Act; however, the central government has not extended the Act’s application to these states.

Family Courts Act, 1984:

• According to the 59th Law Commission Report (1974) and the Committee on the Status of Women (1975), it was recommended that family disputes be treated differently than traditional civil proceedings.
• As a result, the Family Courts Act was passed in 1984, allowing state governments to establish family courts to promote conciliation and ensure that disputes concerning family affairs and marriage are resolved as soon as possible.
• The establishment and operation of family courts is the responsibility of state governments in consultation with their respective high courts, according to the Act.
• The Act requires the state government to establish a family court in every city or town with a population of more than one million people.
• The family court judges are appointed by the state government with the approval of the high court.
• There are 716 Family Courts in operation across the country (February 2022).

Background:

• The late Smt. Durgabai Deshmukh was the first to stress the importance of setting up Family Courts.
• Following a trip to China in 1953 to study the operation of family courts, Smt. Deshmukh met with various Judges and legal experts and then proposed to Prime Minister Pt. Jawaharlal Nehru that Family Courts be established in India.
• Several women’s organisations, other organisations, and individuals have repeatedly advocated for the establishment of Family Courts for the resolution of family disputes, with an emphasis on conciliation and achieving socially desirable outcomes, and the elimination of adherence to rigid procedural and evidentiary rules.
• The Law Commission’s 59th Report (1974) also stressed that when dealing with family disputes, the Court should take a radically different approach than in ordinary civil proceedings, and that reasonable efforts at settlement should be made prior to the start of the trial.
• In 1975, the Committee on the Status of Women recommended that all family-related issues be handled separately.
• The Family Courts Act, passed in 1984, was part of a wave of legal reforms aimed specifically at women.
• The Family Courts Act was signed into law by President Ronald Reagan on September 14, 1984.

Functioning:

• Own rules– The Family Courts are free to develop their own procedural rules, which supersede the procedural rules contemplated by the Code of Civil Procedure.
• Conciliation- A special emphasis is placed on resolving disputes through mediation and conciliation; when the matter is resolved through an agreement between both parties, the chances of further conflict are reduced.
• Away from the legal system– The cases are kept away from the trappings of a formal legal system, which can be a very traumatic experience for families and lead to personal and financial losses, both of which can have a devastating effect on human relations.
• Without the express permission of the Court, a party is not entitled to be represented by a lawyer.
• Appointment of experts– Conciliators are court-appointed professionals.
• Method– Proceedings before the Family Court are first referred to conciliation, and only if conciliation fails to resolve the issue successfully is the matter brought before the Court for trial.
• Appeals- Once a final order is issued, the aggrieved party may file an appeal with the High Court.

Jurisdiction 

The Family Courts have exclusive jurisdiction over the following matters:

• matrimonial relief, such as nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a marriage or the matrimonial status of any person; the property of the spouses or either of them; a declaration as to a person’s legitimacy; guardianship of a person or custody of any minor; and maintenance of wife, children, and parents

What was the need for an amendment, and why is it limited to only two states?

• Notably, the Central Government must announce a date for the Act to take effect in a State where such courts have been established.
• If the government is not notified, it calls into question the jurisdiction and statutory powers of these family courts.
• While Himachal Pradesh established family courts in Shimla, Dharamshala, and Mandi, Nagaland established two such courts in Dimapur and Kohima, but these courts operated without legal authority because no central notification was issued.
• The problem was brought to light last year when a petition was filed in the Himachal Pradesh High Court (Omkar Sharma vs. State of Himachal Pradesh).

Act implementation in Himachal Pradesh and Nagaland:

• The Family Courts (Amendment) Bill seeks to extend the application of the Act to the state of Himachal Pradesh, with effect from February 15, 2019, and to the state of Nagaland, with effect from September 12, 2008.
• The establishment of Family Courts in both states will be deemed retrospectively valid from these dates, as will all actions taken under the Act in both states, including the appointment of judges and orders and judgments passed by the Family Courts.

Difficulties confronting Indian Family Courts:

• The fundamental goal of the family court was to provide a quick resolution of problems involving marriage and family and to reach an agreement between the parties for reconciliation; however, this goal has yet to be met. Some of the challenges that family courts face are as follows:
• “Family” is not defined in the Act – The term “family” is not defined in the Act.
• Only cases involving marriage, child support, and divorce are heard in family court.
• As a result, the family court does not address issues arising from economic implications that affect the family in a variety of ways.
• Inadequate law enforcement – The Act empowers state governments to create regulations for the operation of family courts in their jurisdictions.
• Nonetheless, most state governments have not used these powers effectively to create rules and set up family courts.
• Complicated law – Because the family court follows the principles of the Code of Civil Procedure in suits and proceedings, the average person finds it difficult to understand the complicated law.
• The act contains no simple rules that a layperson can understand