CHAPTER - II

Family Court: Origin and development

India is proud of its ancient heritage of a united and stable family system.

A gradual trend of change from extended families to nuclear families, and the fast

changing trends in the social, cultural, economic and industrial scenario is the

growing challenges to the institution of family in India. India maintains a

common legal system inherited from the colonial era, and various legislations by

the British are still in effect in modified forms. In family disputes, religion and

personal laws are largely interlinked. Thus, this chapter deals with the origin of

family, family law and family courts. It discusses the Family Courts Act of1984

and the salient features of the Act. This chapter also explains the development of

family law in India and it includes the various family law legislations related to

family courts in India.

2.1 Family

The word ‘Family’ is derived from the Latin word ‘Famulus’ which

means a servant. In Roman Law the word denoted a group of producers and

slaves and other servants as well as members connected by common descent or

marriage.1 Thus originally, family consists of a man and a woman with a child or

children and servants.

According to Burgess and Locke, “Family is a group of persons united by

ties of marriage, blood or adoption constituting a single household interacting and

1
Sanjay Bhattacharya, Social Work: Interventions and Management, Deep and Deep
Publications, New Delhi, 2008, p.3.

9
intercommunicating with each other in their respective social roles of husband

and wife, father and mother, son and daughter, brother and sister, creating a

common culture.”2 The Universal Declaration of Human Rights in its Article 16

item 3 proclaimed that the ‘family’ as the natural and fundamental group unit of

society and is entitled to protection by society and state.”3

Thus the family is the most important primary group in society. It is the

simplest and the most elementary form of society. It is the first and the most

immediate social environment to which a child is exposed. So the family is

considered as the basic unit of the society to meet the needs of individuals and

those of other social institutions.4 Traditionally, the family has performed a

variety of functions such as economic, reproductive, social, recreational,

protective, judicial and religious. For all these the family is called “the cradle of

human nature.5

Family always contains both continuity and change. It supports and

dominates the development of the individual which is the major source of

emotional bonding and socialisation. It has the potential to provide stability, and

the support to face the problems from the family environment. A gradual trend of

change from the extended family to nuclear family is emerging due to the growing

urbanisation and industrialisation. Therefore, the basic dynamics in the family,

such as interaction pattern, communication, social support system, role functioning

2
C. N. Shankar Rao, Sociology: Principles of Sociology with an Introduction to Social
Thoughts, 4th ed, S. Chand & Company Ltd, New Delhi, 2005, p.349.
3
Gillian Douglas, An Introduction to Family Law, Oxford University Press, New York, 2001.
p.20.
4
Goode Williams. J, The Family, 2nded, Hall of India Pvt. Ltd, New Delhi, 1987, p.32.
5
Chakraborthy Krishna, Family in India, Rawat Publications, Jaipur & New Delhi, 2002, p. 11.

10
and reinforcement patterns have been seriously affected leading to the

disintegration of the relationship between husband and wife.6

Family, as the world’s oldest human relationship, the primary agent of

social integration and of behaviour, is adapting constantly to changing

socioeconomic conditions and the progress of humanity. It has always been

recognized as the basic unit of society that performs essential functions and that

serves as sources of stability, continuity and development. Therefore, families are

essential for achieving peace, safety, justice, unity and prosperity.7

The meaning of "Family" is described under the Order XXXII-A, Rule 6

of Civil Procedure Code 1908:8 For the purposes of this Order, each of the

following shall be treated as constituting a family, namely:

(a) (i) A man and his wife living together,

(ii) Any child or children being issue of theirs; or of such man or such

wife,

(iii) Any child or children being maintained by such man and wife;

(b) A man not having a wife or not living together with his wife, any child or

children, being issue of his, and any child or children being maintained by

him;
6
Lissy James, Family Counselling in Family Court: An Analysis of Phycho-Socio Dynamics of
Families of Litigants (Thrissur Family Court), Discussion Paper No. 13, Kerala Research
Programme on Local level Development, CDS, Thiruvananthapuram, 1999. p. 3.
7
“Achieving the Millennium Declaration With and For the Family”, The World Declaration for a
Comprehensive Family Policy, Sanya, China, December 8, 2004.http://www.worldfamily
organization.org/ wfs/Summit/Declaration_ofSanya.htm,Accessed on 10-01-2013.
8
Oder XXXII-A, Rule 6 Ins.by Section 80 by Act No.104 of 1976(w.e.f.1977), For suits
relating to matters concerning the family are concerned, byan amendment made in 1976, the
Indian Parliament in its wisdom added OrderXXXIIA to the Code of Civil Procedure to
provide for mandatory settlement procedures in all matrimonial proceedings specifically.

11
(c) A woman not having a husband or not living together with her husband

any child or children being issued of hers, and any child or children being

maintained by her;

(d) A man or woman and his or her brother, sister, ancestor or lineal

descendant living with him or her; and

(e) Any combination of one or more of the groups specified in clause (a)

clause (b) clause (c) or clause (d) of this rule.

Explanation-For the avoidance of doubts, it is hereby declared that the

provisions of rule 6 shall be without any prejudice to the concept of "family" in

any personal law or in any other law for the time being in force.

A reading of the above clearly establishes the statutory mandate laid down

by the Civil Procedure Code to make an endeavour to describe the different

aspects of constituting a family.

Marriage and family are the oldest and most resilient institutions in the

society.9 From the beginning of human life people have grouped themselves into

families to find emotional, physical and community support. Families are the basic

fundamental social units in all human communities around the world, and healthy

individuals within healthy families are the core of a healthy society.10 Family is a

major source of nurture, emotional bonding and socialisation. In family, marriage is

a governmentally, socially, or religiously recognized interpersonal relationship,

9
John DeFrain, "Creating a Strong Family: Why Are Families So Important?” Historical
Materials from University of Nebraska-Lincoln Extension. Paper 343,2001,
http://digitalcommons.unl.edu/extensionhist/343, Accessed on 01-01-2013
10
Ibid.

12
usually intimate and sexual, that is often created as a form of contract.11 It provides

stability and support while facing problems from the other family members and the

social environment.

Today, marriage is becoming unstable and its core functions are being

performed only inadequately. The basic dynamics within the family, such as

interaction pattern, communication, social support system, role functioning, and

reinforcement patterns have been seriously affected leading to the disintegration

of the relationship between husband and wife. Unfortunately, in many

communities in India, the family is one of the important social institutions, has

lost its sanctity and fellowships due to the fast-changing trends in the industrial

age, and globalisation culture has created a growing challenge to the institution of

family in India. Industrialisation together with technological development and the

force of a market economy has brought several new challenges to the Indian

family. The new global challenges and the deep changes in the developments led

to a new world vision, and more adapted economic, social, and political

structures and institutions are reflected in the family dynamics.12

As a result, there are marital break-ups with its concomitant problems like

illicit or socially unacceptable alliances, neglected children, vagrancy, delinquency

and destitution. If the family breaks, it will certainly have repercussions on the

society itself. The broken families create many problems in the society, especially in

11
“Marriage and Responsibility.” Boundless Sociology,Boundless, https://www.boundless.
com/sociology/textbooks/boundless-sociology-textbook/socialization-4/socialization-
throughout-the-life-span-48/marriage-and-responsibility-305-9605/,Accessed on 10-09-2014
12
PoornimaAdvani, Family Courts, Report on Working of Family Courts and Model Family
Courts Report of the Workshop Held on 20 March 2002,National Commission for Women,
New Delhi, 2002, p. (i)

13
the life of the children. Therefore, it is imperative to preserve stability and continuity

within the family and to maintain the spirit of good faith and confidence among its

members. When faith, stability and confidence are threatened by disputes among the

family members, law comes into play. In this context, courts play a vital role in the

family disputes.

2.2 Family Law

Family law is a law concerned with the formation or dissolution of family

relationship and that of governing the rights and obligations, both personal and

proprietary, of members of the family, that flow from these relationships.13 By

controlling the institution of marriage, adoption, guardianship and property rights

of members, it determines the very course of human life. Love, harmony and

affection are the foundation of family life, finding the perfect solution to the family

problems in the legal instrument is a difficult task. ‘State cannot compel a husband

to love his wife or a wife to her husband or a child to its parents.’14 To the thickest

of sentiments and emotions, traditions and strong mind sets, it can penetrate only

minimally. But it can remedy exploitations on injustices in intra-familial relations.

In spite of being a law of imperfect obligation, family law's significance is in

keeping the family structure intact, and in keeping fair family relationships, and it

is great from the perspective of social utility.

As a unique social institution, omnipresent and indispensable, family has

the dimensions of human right, social use, economic security, cultural base and

13
Judith Areen, Cases and Materials on Family Law, 3rded, Foundation Press, Westbury, 1992.p. 5
14
P. Eshwara Bhat, Law and Social Transformation, Isted, Eastern Book Company, Lucknow,
2009, p. 701.

14
moral foundation. When its roots are deeply spread over these domains and in the

community’s character and feelings, its governance through ‘living law’ of the

people is admirably effective. In such situations building the block of family law

through duties rather than rights has yielded results.15 Family law is really the

meeting place of so many disciplines - Anthropology, Law, Ethics, Psychology

and Religion.16

The law based on customs and traditions had formed the foundation of

family law in India. Because of distinct link with customs and legal norms

initiated and followed by religious community of this matter, it is with reference

to specific religious communities that family law developed. During the historical

development, pluralist traditions got developed to govern the norms within the

family. Religious communities and ethnic groups converted their social morals

relating to family relation into binding legal norms. The system of Hindu Law,

Mohammedan Law, Christian Law, Parsi Law and varieties of Tribal Laws on

family customs have built up profound diversity in family law or personal law.

Each personal law has sub schools within. The state-enacted laws governing

inter-religious marriages and succession contributed to the factor of

multiplicity.17 Changes in the social philosophy that has emphasized protection of

human rights of individuals, profound social transformation in the economic

15
William Seagle, Family Law: Encyclopeadia of Social Sciences, vol. V-VI, p. 86; Ancient
Hindu law provides great amount of emphasis on duties of members of family. See Atharva
Veda Vol.3, pp1-3.
16
PD Mathew, P.M. Bakshi, Family Courts, Legal Education: Personal Laws-2, Indian Social
Institute, New Delhi, 1994, p. 2.
17
P. Ishwara Bhat, Law & Social Transformation, Isted, Eastern Book Company, Lucknow,
2009, p. 702.

15
status of the family, modern scientific development and the growing claims of the

modern welfare state have cast their own impact upon the content of family law.

2.3 Nature of family law in India

India has a recorded legal history, starting from the Vedic ages. The civil

law systems were developed during the Bronze Age and the Indus Valley

civilization. In India, law is a matter of religious prescriptions and philosophical

discourse in the illustrious history. Emanating from the Vedas, the Upanishads

and other religious texts, it was a fertile field enriched by practitioners from

different Hindu philosophical schools and later by Jains and Buddhists.

2.3.1 Ancient Period

In ancient India there was a distinct tradition of independent school of

legal theory and practice. The Arthashastra,18 and the Manusmriti19 were

influential treatises in India, texts that were considered authoritative legal

guidance.20 These texts indicate that ancient India had a fairly well-developed

and sophisticated system of administration of justice. In Manusmriti, Manu's

central philosophy was tolerance and pluralism, and was cited across Southeast

18
The Arthashastra is an ancient Indian treatise on statecraft, economic policy and military
strategy, written in Sanskrit. It identifies its author by the names "Kauṭilya" and
"Vishnugupta"; both names are traditionally identified with Chanakya (c. 350–283), who was
a scholar at Takshashila and the teacher and guardian of Emperor Chandragupta Maurya,
founder of the Mauryan Empire. The text was influential until the 12th century, when it
disappeared. It was rediscovered in 1904 by R. Shamasastry, who published it in 1909. The
first English translation was published in 1915.
19
The Manu smṛti ("Laws of Manu’) is the most important and earliest metrical work of the
Dharmaśāstra textual tradition of Hinduism. This Sanskrit text was edited in 1913 by P.H.
Pandya and in 1920 by J.R. Gharpure. The text was first translated into English (from
manuscripts) in 1794 by Sir William Jones.
20
S.D. Sharma, Administration of Justice in Ancient India, Harman Publishing House, New
Delhi, 1988, p.72

16
Asia. The Indian autochthonous legal tradition is Hindu21or Dharma. The

Sanskrit word Dharma, means right or proper conduct, and covers the concepts

such as law, morality, duty, and obligation. Hindu law knew no hierarchy of legal

agencies.

There were innumerable overlapping jurisdictions; many groups enjoyed

a degree of autonomy in administering law among ancient traditions. Each caste

had its own tribunals, sometimes advised by Brahmans, markets, villages, and

guilds had councils to decide disputes. These bodies decided cases, according to

caste or local custom as well as, or instead of, rules derived from the

dharmashastra. The dharmashastra not only established different rules for

different kinds of persons, but it incorporated and certified many bodies of rules

not found within its pages. Every aggregation of people-castes, bodies of traders,

guilds of artisans, families, sects, villages-was entitled to formulate and apply its

own customs and conventions.22

2.3.2 Medieval Period

Since the medieval period, starting from the eighth century, two major

schools of personal laws have been followed such as Mitakshara23 and

Dayabhaga.24Mitakshara by Vijnaneshvara, an authority on issues of family law,

was widely followed both in south and North India. It had a further sub-schools in
21
Ainslie T. Embree; (Ed), Encyclopedia of Asian History Vol.2, Coller Macmillan publishers,
London, 1988, p. 411.
22
Ibid.
23
The Mitākşarā is a vivşti (legal commentary) on the YajnavalkyaSmriti best known for its
theory of "inheritance by birth." It was written by Vijñāneśvara, a scholar in the Western
Chalukya court in the late eleventh and early twelfth century. It was considered one of the
main authorities on Hindu Law from the time the British began administering laws in India.
24
The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhana which primarily focuses on
inheritance procedure. The digest is most notable for being based on Śāstric doctrines.

17
four areas-Dravida (South India), Mithila, Bombay, and Banaras. The personal law

of Dayabhaga was used in the region of Bengal.

The Muslims largely followed the Sunni and the Hanafite25 type of laws.

Hanafite types of laws originated from a Persian scholar Abu Hanifa. For both Hindu

and Muslim legal systems, there were other variations based on sectarian divisions

(like the Sunni and Shi'a among Muslims), regional specifics, and the local customs

and practices. The Tughlaq period saw the compilation of the code of civil

procedure. It was called Fiqha-e-Feroze Shahi. The code prescribed details of the

procedure and the law in several matters. It was written in Arabic and was translated

into Persian under the orders of Feroz Shah Tughlaq.26 The procedure was followed

till the reign of Aurangzeb when it was replaced by Fatawa-I-Alamgiri written in

1670.

The diverse, decentralized system became even more complex with the

conquest of much of India by Muslim invaders. Muslim rulers had royal courts in

cities and administrative centres that exercised general criminal (and sometimes

commercial) jurisdiction and also decided civil and family matters among the

Muslim population.

The Hindu law and the Muslim Shari'at covered all aspects of life and did

not differentiate much between moral, custom, and law. Even during the Mughal

Empire in the Indian subcontinent, between the 16th and 18th centuries, Hindus

25
The Hanafi school is one of the four Sunni madhhabs (schools of law) in fiqh (Islamic
jurisprudence). It is named after the scholar Abūşanīfa an-Nu‘manibnThābit. Among the five
established Sunni schools of legal thought in Islam, the Hanafischool is the oldest. It has a
reputation for putting greater emphasis on the role of reason.
26
R.C. Majumdar, The History and Culture of the Indian People: The Mughal Empire, Vol. VII,
Bhartiya Vidya Bhavan, Bombay, 1974, p.545.

18
and Muslims were ruled largely by their own sets of local customs and personal

laws. The tradition of Indian legal history shows an excellent secular court

system existed under the Mauryas (321-185 BC) and the Mughals (16th – 19th

centuries) with the latter giving way to the current common law system.

2.3.3 British-India

In the Indian subcontinent, British legal tradition has arrived in the early

seventeenth century. The East India Company's charter gave it the power to

discipline its own servants, and a 1618 treaty with the Mughal emperor

recognized this power for the company’s factory at Surat.27 In 1726 the courts in

the presidency towns were made royal courts of uniform structure, deriving their

power directly from the king.28

A new plan, put forth in Bengal in 1772 and later adopted in Bombay and

Madras, established in each presidency a hierarchy of courts empowered to hear

civil cases between all residents-both Indian and European-of the presidency.

They introduced the uniform criminal law with the idea of equality before the law

for both Hindus and Muslims.29

In suits regarding inheritance, succession, marriage, caste, and religious

endowments, the courts were to apply the dharmashastra to the Hindus and the

shari'a to Muslims. The British judges were assisted by brahman advisors in

ascertaining and applying the Hindu law, and moulavis for Islamic law.

27
Ainslie T. Embree (Ed.),“Law: Judicial and Legal Systems of India”,Encyglopedia of Asian
History, vol2, 1988, p.412
28
Ibid
29
Ibid

19
Presidency-wide hierarchies of criminal courts were established in the 1790s.

Thus, by the end of the eighteenth century British courts had completely

supplanted those of the Indian rulers throughout the territory of the presidencies.

This process continued through the nineteenth century, with new British courts

being created as the territory of British India expanded.

The Anglicisation of the law in India increased after 1858, when the

British Crown replaced the administration of the East India Company. During the

next quarter century a series of codes based more or less on English law and

applicable throughout British India were enacted.30 There was virtually complete

codification of all fields of commercial, criminal, and procedural law.

As the British Indian courts became increasingly anglicised, the

traditional legal institutions were largely displaced. The British courts quickly

attracted large numbers of cases. Some indigenous judicial institutions,

particularly caste councils, remained active, but in the course of the late

nineteenth and early twentieth centuries, most of' these bodies became

moribund.31

In the advent of the British Raj, there was a break in tradition, and Hindu

and Islamic law was abolished in favour of British common law. As a result, the

present judicial system in India has derived largely from the British system and

has few connections to Indian legal institutions of the pre-British era. The system

of administration of justice and laws is the product of the British Government.

30
Ainslie T. Embree, (Ed), “Law: Judicial and Legal Systems of India”, in Encyclopedia of
Asian History, Vol.2, Coller Macmillan publishers, London, 1988, p.412.
31
Ibid., p.413.

20
The four Law Commissions32 and other committees during the years 1834 to

1947 gave shape to the Indian legal system. Thus the common law system, a

system of law based on recorded judicial precedents, came to India with the

British East India Company.

2.3.4 Post-independence

After independence in 1947, the Constitution of India that came into

effect in 1950, created a unified, hierarchical judiciary headed by a Supreme

Court. In effect, the Constitution preserved most of the court system created by

the British, but made the Supreme Court rather than the Privy Council, the

highest court of appeal.

The Constitution of India is the fountainhead of the Indian Legal System.

It demonstrates the Anglo‐Saxon character of the judiciary, which is basically

drawn from the British Legal System because of the long period of British

colonial influence during the British Raj. During the drafting of the Indian

Constitution, the laws of Ireland, the United States, Britain, and France were all

synthesised to get a refined set of Indian laws as it currently stands. Indian laws

also adhere to the United Nations guidelines on human rights law and

environmental law. Certain international trade laws, such as those on intellectual

32
Law Commissions were constituted by the Government from time to time and were
empowered to recommend legislative reforms with a view to clarify, consolidate and codify
particular branches of law where the Government felt the necessity for it. The first such
Commission was established in 1834 under the Charter Act of 1833 under the Chairmanship
of Lord Macaulay which recommended codification of the Penal Code, the Criminal
Procedure Code and a few other matters. Thereafter, the second, third and fourth Law
Commissions were constituted in 1853, 1861 and 1879 respectively which, during a span of
fifty years contributed a great deal to enrich the Indian Statute Book with a large variety of
legislations on the pattern of the then prevailing English Laws adapted to Indian conditions
M.Laxmikant, Governance in India, McGraw Hill, Noida, p.143.

21
property, are also enforced in India. Thus the Constitution of India is the guiding

light in all matters, such as executive, legislative and judicial.

The Constitution of India is the fundamental authority of law in India. The

Constitution gives due recognition to statutes, case-law and customary law with

its dispensations. A single unified judicial system is a unique feature of the Indian

judiciary. The Supreme Court as the apex of the entire judicial system is followed

by high courts in each state or group of states.33 Below the High Courts exists a

hierarchy of civil and criminal subordinate courts comprising of the District

Courts at the district level and other lower courts. The District Courts are at the

top of all subordinate or lower courts. They are, however, under the

administrative control of the High Court of the State to which the district court

belongs to.

Their jurisdiction is confined to the districts they are responsible for,

which could be just one or more than one. The original jurisdiction of the District

Courts in civil matters is confined by not just the territorial limitations, but by

pecuniary limitations as well as the subject matter. The pecuniary limitations are

laid down by the legislature and if the amount in dispute in a matter is above the

pecuniary jurisdiction of the District Court, then the matter will be heard by the

concerned High Court of that State.34 In case of criminal matters, the jurisdiction

of the courts is laid down by the legislature. The decisions of the District Courts

are of course subject to the appellate jurisdiction of the High Courts. Panchayat

33
Tribhuwan Chandra Pandey, “The Indian Legal System”,http://www.lawyersclubindia.com/
articles/print_this_page.asp?article_id=3100, Accessed on 14-02-2014.
34
SILF – “Indian Judicial System”, http://www.silf.org.in/16/indian-judicial-system.htm,
Accessed on 03-01-2014.

22
courts also function in some states under various names like Nyaya Panchayat,

Panchayat Adalat, and Grama Kachheri to decide civil and criminal disputes of

petty and local nature. These grassroots level petty courts are meant to decide

small disputes at the lowest levels. Thus, the Indian Judicial System is a mix of

Courts, Tribunals& Regulators, and all these entities working together as part of

an integrated system for the benefit of the society and of the nation.

Part IV of the Indian Constitution lays down “Directive Principles of State

Policy” which are not enforceable by any court. But in the governance of the

country, it shall be the duty of the state to apply these principles while making

laws. After India's independence, efforts were made to develop a uniform civil

code for dealing with matters of personal law. Under Article 44 of the

Constitution in this part, the state shall endeavour to secure for the citizens a

uniform civil code throughout the territory of India.35 However, to this date a

uniform civil code remains an aspiration which India has yet to achieve and

enact. It is seen that the Indian legal system has grown and evolved with the lives

and aspirations of its people and its varied cultures, religious practices and

personal laws. The Indian legal system is founded and fortified by age-old

concepts and precepts of justice, equity and good conscience, which are, indeed,

the hallmarks of common law.

2.4 Family Court

The establishment of Family Courts is described in section 3 of the Family

Courts Act, 1984. “Family Court” means a family court established under section

35
V.S Deshpande, “Nature of the Indian Legal System” in Joseph Minattur, Indian Legal
System, 2nded, The Indian Law Institute, New Delhi, 2006, p. 19.

23
3.36 The family courts are specialised courts, which were established with the

objective of maintaining the welfare of the family by utilizing a multidisciplinary

approach to resolve family problems within the framework of law.37 The family

courts aims at securing the legal rights of the individuals on the one hand, and

undertake the role of a guide, a helper and a counsellor on the other, to enable

families to cope with their problems, and establish family harmony, following the

principle of dignity of the individual and equality of the status of both the sexes.

Family courts have been established to provide facilities of a legal and non legal

nature, so that all the issues can be resolved in one forum.38

2.4.1 Concept of Family Courts

Marriage is a social institution through which a man and a woman come

closer to each other and start living together. Both the spouses act as

complements to each other’s dependency needs. Harmonious marital

relationships between the spouses are required not only for the welfare of the

family, but also for the society at large. However unsatisfying and stressful

marital relations lead to family problems.

Litigation in regard to any matter concerning family, whether divorce,

maintenance, custody, education and financial support for children or a trial of

juvenile offenders should not be viewed in terms of failure or success of legal

36
Section 2 (d) of the Family Courts Act, 1984, establishment of family court is described in
section 3 of the Family Courts Act, 1984.
37
Ratna Varma (Ed.,) Family Courts in India: An Appraisal of Strength and Limitation, Inter
India Publications, New Delhi, 1997, p. 14.
38
Gillian Douglas, An Introduction to Family Law, Oxford University Press, New York, 2001,
p. 20.

24
actions, but it is treated as a social therapeutic problem needing a solution.39 In

resolving these family conflicts, human consideration should be given prior

importance. For that, the traditional adversarial procedure has to be modified and

replaced by an informal procedure, which is designed to help people in trouble, to

reconcile and resolve their differences, and where necessary, to provide assistance.

It is realized that adjudication of family is entirely a different matter, and a

different culture. It has a different jurisprudence.40 The court adjudicating family

disputes should function in a manner that it may tend to conserve and not disrupt

the family life that it should be helpful to individual parties and their children,

and also that it is preservative rather than punishment to family and marriage. It

is, therefore, accepted that the adversary system promotes ritualistic and

unrealistic response to family problems. The fact is that the adversarial process

precludes reconciliation and conciliation of inter-spousal and inter-parental

conflicts.41In this system consideration is given to the contentions and assertions

of the parties and evidences led by them to prove or disprove their assertions and

contentions. The court engaged in family problems requires a less formal and

more active investigations and inquisitorial procedure. In other words, it is not a

litigation, in which parties and their counsel are engaged in winning or defeating

a legal action, but an inquisition in which parties, social workers, lawyers,

welfare officers, and councillors are engaged in finding out a solution to family

problems. Providing punishment for the wrong-doer and reward for the wronged

39
Paras Diwan, Law of Marriage & Divorce, 4thed, Universal Law Publishing Co. Pvt. Ltd,
Delhi, 2002, p.821.
40
Ibid.
41
Ibid.

25
is what legal systems usually do, but the system followed in the family court is

inquisitional in character and conciliatory in final disposal.42 Indeed the family

courts provide some human services to the family in trouble.

2.4.2 Objects and Rationale of Family Courts

The basic purpose of the Family Courts as embodied in the preamble to

the Family Courts Act is:

To promote conciliation in, and secure, speedy settlement of disputes

relating to marriage and family affairs and matters connected therewith. The

basic objects and rationale are:

1. Family unity, which is being progressively undermined by a diversity of

forces in modern society, needs to be strengthened. The intent of the law

is to preserve marriage whenever practicable and not to permit families to

be split up by matrimonial disputes. In case any disputes arise, they

should be resolved quickly.

2. The ordinary courts and legal procedures established on the adversarial

model are not fit for the amicable solution of family conflicts. The

matrimonial litigation under the existing laws is too time-consuming.

Cases take too long to decide. Hence, the need for a speedy settlement

gave rise to the family court.

42
N.R. Madhava Menon, David Annoussamy, Judicial Education and Training: A Primer,
S.C. Sarkar & Son Pvt. Ltd, 2000

26
 3. Conciliation, counselling and individualised treatment based on case

study approach with expertise from law, medicine, psychiatry and social

work are put together for handling family conflicts.

4. Involvement of more women as judges in the family court is necessary. In

addition, the association of women as counsellors and trained social

workers are desirable in the long run.

5. The successful settlement of family problems demands understanding and

co-operation between a number of professionals and involvement of well-

meaning people in the community.

6. The pledge of a fair trial, which the family court is thought to insure does

not ordinarily result from watching the procedure and evidence that

obtains in the regular court. Suitable modifications in the interest of

justice and expeditious administration of family disputes are, therefore,

desirable in the relevant law and regulations.

7. There has to be a sure amount of uniformity in the makeup of the court,

training of personnel and procedures followed for the successful

development of family Courts throughout the state. This may need a

responsible body at the central and state levels to supervise, organise,

report and reform the scheme on a regular basis.

2.4.3 Genesis of Family Courts

In many nations there were special courts for family disputes and its

settlements with religious and sociological objectives, which includes the

27
Christian, Muslim and Jewish ecclesiastical courts. Another approach has been to

establish social courts that have a functional relation to the legal problems

affecting families. Such problems include marriage, divorce, annulment,

maintenance of spouses, adoption, custody of children, legitimacy, juvenile

delinquency, care and protection of children, marriage contracts, and judicial

separation. Although these are the problems that produce the largest volume of

private law litigation in many countries, family law has not in many countries,

been given a corresponding priority by the regular courts. The movement for

family courts in the modern form is understood to have begun in the West in the

wake of the realisation that disputes concerning the family need an approach

different from that generally adopted in traditional courts.43A number of countries

have established special courts for cases relating to children and young people

and special procedures for the disposal of such cases.

In the context of family matters, the family law is concerned with human

relationship that require a judicial environment different from that of ordinary

civil courts.44 The fact of the dispute in a family may not be as significant as the

problem projected in the issue.45 Moreover, since the children and young people

are often involved, the court may need ancillary service of effective social

workers, counsellors, spiritual leaders and various social agencies.

The nature and functions of family courts are varying from nation to

nation. Normally it operates according to lesser procedure than ordinary civil and

43
P. D. Mathew & P. M. Bakshi, Family Courts, Indian Social Institute, New Delhi, 2006,p.3.
44
Mamata Rao, Law relating to Women &Children, 2nded, Eastern book Company, 2008, p.380.
45
Eg: Financial difficulties, health, addiction of drug, alcohol or sex etc.

28
criminal courts. The family court is usually a consolidation of several types of

courts such as children's courts and orphans' courts.

In the 19thcentury, the courts for divorce and matrimonial cases was

established in England to relieve ecclesiastical courts. The family court has been

functioning in the United States of America since 1910.46 It was called ‘domestic

relations courts’. In Japan it was established in 1949. In some countries,

particularly in communist countries, people’s court and conciliation courts are

established for such disputes. The supporters of family court maintain that family

law is concerned with human relationship and requires a judicial environment

different from that of ordinary civil courts. Another argument of family court is

that a high proportion of family proceedings concerning adoption and children in

need or care require not so much application of law.47

Family Court of Eastern Europe and the Peoples Republic of China have

been given wide discretion48 to the judges. Their family courts do what they think

just, having regard to the history of marriage and behaviour of spouses and are

constructed with statements of politico-legal principles and leave much leeway to

the judges or conciliators. In Australia and New Zeland, the family courts are

successfully functioning since the last decade. In the legal system of France and

Norway, judges themselves try for reconciliation between the parties.49 In Japan,

there is a separate infrastructure to deal with disputes in personal laws. In India,

46
Encyclopedia Britannica, Micropaedia, Vol.II , Helen Heming Way Benton, Chicago, 1913,
pp.45-46
47
Ibid.
48
Mamata Rao, Law Relating to Women & Children, 2nd ed, Eastern Book Company, 2008,
p.380.
49
Ibid.

29
the Parsi Matrimonial Courts functioning under the Parsi Marriage and Divorce

Act, 1936, have some elements of a family court, since non lawyer Parsis sit on

the court with the presiding judge.50

Family courts are courts of emotions and sensitivity. Litigations

concerning marriage, maintenance, divorce, guardianship and the property of the

spouses are dealt with by them. Naturally, the jurisdiction of the ordinary courts

is excluded and these courts have been entrusted to deal with the family disputes

charged with emotions.

2.4.4 Family Court Act of 1984

In India, the Family Courts Act was enacted on 14 September 1984 to

provide for the family courts with a view to promoting conciliation in and secure

speedy settlement of disputes relating to marriage and family affairs. According

to Section 2 (d) of the Family Courts Act, “Family Court” means a family court

established under section 3. It describes the establishment of Family Courts and

says that the State Government after consultation with the High Court and by

notification shall establish a Family Court for every area of the state consisting of

a city or town whose population exceeds ten lakhs and for other areas in the state

as it may deem necessary.

Family courts are a specialized type of courts entrusted with the disposal

of cases concerning disputes relating to the family and to decide matters to make

orders in relation to family law. However, Family courts hear all cases that relate

to family and domestic relationships. The matters which are dealt within the

50
P.D. Mathew & P. M. Bakshi, Family Courts, Indian Social Institute, New Delhi, 2006, p.3

30
family court in India are matrimonial relief, which includes nullity of marriage,

judicial separation, divorce, restitution of conjugal rights, declaration as to the

validity of marriage and matrimonial status of the person, property of the spouses

or any of them and a declaration as to the legitimacy of any person, guardianship

of a person or custody of any minor, maintenance including the proceeding under

the Cr. P.C.51 In particular, the court deals with litigation concerning marriage

and divorce, maintenance, guardianship and the property of the spouses. The

family court's 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 a 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 complex nature of the family disputes requires speedy conciliation

with speedy, simple and low cost procedures. The most unique aspect regarding

the proceedings before the family courts are that they are first referred to

conciliation and only when the conciliation proceedings fail to resolve the issue

successfully, the matter is 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.

51
P.D. Mathew & P.M. Bakshi, Family Courts, Indian Social Institute, New Delhi, 2006,p.7

31
2.4.4.1 Salient features of the Act

The title of The Family Courts Act, 1984 reveals its main purpose and

scope in the family disputes. It indicates the speedy settlement of family disputes

relating to marriage and other matrimonial affairs and the need to the

establishment of Family Courts in different parts of the nation.52 The purpose of

this Act is to resolve the family disputes and emphasises on the conciliation to

family disputes. Though the Act itself does not contain any specific provision

which may ensure speedy settlement of matrimonial disputes, it is perhaps

assumed that the setting up of family courts itself will promote speedy settlement

of matrimonial cases. The success of the family court therefore depends upon the

type of personnel, namely judicial and non judicial, staff associated with such

courts.53

Under this Act, the family courts have been given exclusive jurisdiction to

deal with matters relating to matrimonial disputes, including the disputes relating

to the property of the spouses, the legitimacy of any person, guardianship or the

custody of minor and maintenance under the Criminal Procedure Code. The

preamble also suggests that the family courts should endeavour either by

settlement or by providing a scope to effect reconciliation between the couple. In

this pursuit family courts can secure the services of medical, social welfare

agencies and their experts to participate in the proceedings to settle matrimonial

52
K. Panduranga Rao, Commentary on the Family Courts Act, 1984, Gogia Law Agency,
Hyderabad, 2010, p.3.
53
Ratna Varma (Ed), Family Courts in India: An Appraisal of Strength and Limitation, Inter-
India Publications, New Delhi, 1997, p. 15.

32
disputes.54 Since this enactment is made in the public interest, for the expeditious

settlement of family disputes, the procedure for conducting cases in the family court

has been simplified. Application of Indian Evidence Act is not followed in its strict

sense and the proceedings are conducted in an informal way to arrive at speedy

settlement.55 As a measure of simplification, procedure engaging legal practitioners

for conducting cases of the parties on their behalf is restricted in the Act. To

minimise the time in litigation, the Act provides for only one appeal to the Division

Bench of High Court of the state against the order of the Family Court.

The Act was challenged in various High Courts on constitutional validity.

The Division Bench of Bombay High Court while disposing of a batch of writ

petitions challenging the views of the Act, held that the Act is not illegal,

discriminatory or violative of Fundamental Rights envisaged in the Constitution

of India56 and the procedure prescribed under the Act does not suffer from

arbitrariness at all. It was also held that the family courts have been established in

many metropolitan cities of various states to achieve the aims and objectives of

the Act.57So the concept of Family courts implies an integrated, broad based

service to families in trouble.

2.5 Family Law Legislations in India

India is a land of diversities with several religions such as Hindus,

Buddhists, Jains, Christians, Muslims, Parsees, Sikhs and Jews. Each community

54
K. Panduranga Rao, Commentary on The Family Courts Act, 1984, Gogia Law Agency,
Hyderabad, 2010, p.3.
55
Ibid.
56
Latapimple v. Union of India, AIR. 1993, Bom. 255.
57
Ibid.

33
has its own personal laws governing marriage, divorce, minors, adoption,

wills, intestacy and succession.58 The oldest part of the Indian legal system is

the personal laws governing these different communities. The Hindu personal

law has undergone changes by a continuous process of codification. The

process of change in society has brought changes in law reflecting the

changed social conditions and attempts the solution of social problems by new

methods in the light of experience of legislation in other countries of the

world.

The Indian legal system is basically a common law system. The Indian

Parliament has enacted the following family laws which are applicable to the

religious communities defined in the respective enactments themselves.

The laws that govern them include: the Indian Divorce Act of 1869, as

amended in 2001, is an Act to amend the law relating to divorce and

matrimonial cases relating to Christians in India. The Indian Christian

Marriage Act of 1872, was enacted as an act to consolidate and amend the law

relating to the solemnisation of the marriages of Christians in India

In respect of issues relating to guardianship, the Guardian and Wards

Act, 1890 applies to non- Hindus. The Marriage Validation Act of 1892,

validate certain marriages solemnised under Part VI of the Indian Christian

Marriage Act of 1872.

58
V.S Deshpande, “Nature of the Indian Legal System” in Joseph Minattur, Indian Legal
System, 2nd ed, The Indian Law Institute, New Delhi, 2006, p. 17.

34
 The Anand Marriage Act of 1909, an Act to remove doubts as to the

validity of the marriage ceremony common among the Sikhs. It extends to the

whole of India except to the State of Jammu and Kashmir. All marriages

which may be or may have been duly solemnised according to the Sikh

marriage ceremony called Anand, commonly known as Anand Karaj.

It may be pertinent to point out that the Indian Succession Act, 1925, is

an Act to consolidate the law applicable to intestate and testamentary

succession in India unless parties opt out and choose to be governed by their

respective codified law.

The Parsi Marriage and Divorce Act of 1936, as amended in 1988, is

an Act to amend the law relating to marriage and divorce among the Parsis in

India. The Muslim Personal Law (Shariat) Application Act of 1937, The

Dissolution of Muslim Marriages Act of 1939, applicable to Muslims.

The Indian Parliament also enacted the Special Marriage Act, 1954, an

Act to provide a special form of marriage in certain cases, for the registration

of such and certain other marriages and for divorces under this Act. This

enactment of solemnising marriage by registration is resorted to by Hindus,

non-Hindus and foreigners marrying in India who opt out of the ceremonial

marriage under their respective personal laws. Registration is compulsory

under this enactment. Divorce can also be obtained by non-Hindus under this

Act. This legislation governs people of all religions and communities in India,

irrespective of their personal faith.

35
 The main marriage law legislation in India applicable to the majority

population constituted of Hindus is known as the Hindu Marriage Act, 1955,

which is an Act to amend and codify the law relating to marriage among

Hindus. Ceremonial marriage is essential under this act and registration is

optional. It applies to any person who is a Hindu, Buddhist, Jain or Sikh by

religion and to any other person who is not a Muslim, Christian, Parsi or Jew

by religion. The Act also applies to Hindus residing outside the territory of

India. Nothing contained in this Act shall be deemed to affect any right

recognized by custom or conferred by any special enactment. Likewise, in

other personal law matters, Hindus are governed by the Hindu Succession Act,

1956 which is an Act to amend and codify the law relating to intestate

succession among Hindus. The Hindu Minority and Guardianship Act, 1956 is

an Act to amend and codify certain parts of the law relating to minority and

guardianship among Hindus and the Hindu Adoptions and Maintenance Act,

1956 is an Act to amend and codify the law relating to adoptions and

maintenance among Hindus.

The Dowry Prohibition Act of 1961, prohibits the giving or taking of

dowry. It was enacted by Parliament in the twelfth year of the Republic of

India.

Under the Foreign Marriage Act, 1969, a person has only to be a

citizen of India to have a marriage solemnised under this Act outside the

territorial limits of India. The Section 125 of the Code of Criminal Procedure

1973, provides that irrespective of religion, any person belonging to any

36
religion can approach a magistrate to request maintenance. Therefore, apart

from personal family law legislations, both Hindus and non-Hindus have an

independent right of maintenance under the general law of the land, if he or

she is otherwise entitled to maintenance under this code.

The Indian Parliament has enacted The Family Courts Act of 1984 to

provide for the establishment of family courts. The Muslim Personal Law

(Shariat) application Act of 1937, the dissolution of Muslim Marriage Act of

1939.The Muslim Women (Protection of Rights on Divorce) Act of 1986 and

The Muslim Women (Protection of Rights on Divorce) Rules of 1986, are also

applicable to Muslims living in India.

In The Indian Divorce Act, comprehensive amendments were made

through the Indian Divorce (Amendment) Act, 2001 to remove discriminatory

provisions against women in the matter of divorce. Provision has also been

made for dissolution of marriage by mutual consent. This is on the lines of

section 13B of the Hindu Marriage Act and section 28 of the Special Marriage

Act. The Parsi Marriage Act, which governs the matrimonial relations of

Parsis was amended in 1988 and 2001 to enlarge its scope so as to bring it in

line with the Hindu Marriage Act. By the Hindu Succession (Amendment)

Act, 2004 a daughter has been made the member of the coparcenary, entitling

her to an equal share in the agricultural property.

The protection of Women from Domestic Violence Act of 2005,

provides safeguards to the wife or female live-in partner against domestic

violence by husbands or male live-in partner or his relatives. This law also

37
provides protection to other women living in a household including sisters,

widows or mothers.

There is an organized system of designated civil and criminal judicial

courts within every state in India which works under the overall jurisdiction of

the respective high court in the state. It is in the hierarchy of these courts that

all family and matrimonial cases are lodged and decided. Despite the

existence of an organised, well regulated and established hierarchy of judicial

courts in India, there are still an unrecognised parallel community and

religious courts in existence without the authority of law and are not parts of

the judicial system.59 For enforcement and adjudication of all matrimonial and

other related disputes, of any person in any of the different religious or non-

religious communities under the respective legislations mentioned above, the

designated judicial forum or court where such petition is to be lodged is

prescribed in the respective enactments themselves.

2.6 Conclusion

The family is considered as the basic unit of social system. Hence, for

the protection of society, the families are to be protected. The success in

marriage and family relationship will strengthen the stability of the

community and it enrich the future generations. But the modern family

concepts drastically transforms by the information technology and mass

media. It creates consumerism and cultural breakdown of families. The social

59
Anil Malhotra and Ranjit Malhotra, “Family Law and Religion- The Indian Experience,”
https://www.iaml.org/cms_media/files/family_law_and_religion_the_indian_experience.pdf,
Accessed on 10- 01-2015.

38
evils such as drug and media addiction, alcoholism, etc. are affected in the

essential functions of the family life. But social stability is the most important

factor in a healthy family. In a stable family people are living together in

harmony, peace and justice. So the family court structure, process and

functions are preserving the marriage where a marriage has broken down

irretrievably, to dissolve it with maximum fairness and minimum bitterness,

distress and humiliation.

39