The Judiciary of India, even though it is efficient and thorough in its decisions, has the largest backlog of pending cases in the whole world.
On accessing a statistical report from National Judicial Data Grid (NJDG), the information available is that around 5.75 million cases are pending in the High Court of various states across the country, and 38.15 million cases are pending in the district courts.
The total is an overwhelming 43.90 million cases. These statistics are a perfect example of the legal maxim ‘Qui iustitiam moratur iustitiam negat’ or as we commonly know it ‘Justice delayed is justice denied.’
This was the reason why both the 59th Law Commission and the Committee on the Status of Women (1975), were stepped in that family disputes should be dealt with in different courts. They should be treated in a different way than we treat the civil proceedings.
Also, the courts were already overburdened with various civil and criminal matters and this could be a relief for them. The report also suggested that there should be the establishment of family courts by States and selection of Judicial Officers.
This selection of JO should be done based on their experience and expertise in handling such legal matters.
In M.P. Gangadharan v. the State of Kerala, The Supreme Court held that Family Courts should be established not only because it is provided in the Act but also the state must be alive to the situation that it must provide the entire infrastructure to the forum of dispute resolution.
The Code of Civil Procedure was amended in 1976 to adopt a special procedure for the handling of disputes concerning family; however, still many cases were treated as ordinary civil proceedings.
Hence in 1984, the Family Courts Bill was passed and made into an Act. Through this Act, the Family Courts were set up in States, and reasonable efforts were made for an agreement and settlement before a trial was started in other Courts.
The Act contains 6 chapters and 23 sections. According to Section 3 of this Act, the Family Courts will be established by the State after due consultation with the High Court.
These courts should be established in every city or town which has a minimum population of 1 million or in any area, the State Government deems fit. The local limits and jurisdiction of this court should be specified by the state to the High Court.
The states and High Courts are free to make amendments to the Act if the need arises. This is why the state of A.P. framed the Andhra Pradesh Family Courts (High Court) Rules, 1995.
Appointment of Judges
The provisions related to the appointment of judges in the Family Court are outlined in Section 4 of the above mentioned Act.
The State Government has the power to appoint one or more Judges in the Court, but this decision should be made only after consultation is done with the High Court. One Judge can also be appointed as the Principal Judge and another one can be appointed as Additional Principal Judge.
The Principal Judge must delegate various duties to the other Judges of the Court and the Additional Principal Judge is required to fill in as Principal Judge when the latter is on a leave of absence or is ill for any other such reason.
Qualifications of the Judges
- He must have worked for a term not less than 7 years in any Judicial Office in India.
- He could have either worked in the office of member of tribunal or any post under State or Central Government which requires special knowledge of law.
- He must have worked as an advocate of a High Court or two or more courts of succession of a term for not less than 7 years
- He must not have attained the age of 62 years.
It is also necessary that the person appointed should have an in-depth knowledge of conciliation and counselling as well as he should be able to act as a mediator between the two parties.
The preference should be given to women. The salary of the Judges is decided by the State Government after a discussion with the High Court about the same.
The following are the areas where the jurisdiction of Family Courts lies,
- A suit for the decree of nullity of marriage, restitution of conjugal rights or for the dissolution of marriage,
- A proceeding for the determination of the validity of marriage or matrimonial status of a person,
- A suit related to the properties between the parties of the marriage,
- A proceeding for an injunction or order arising out of a marriage,
- A suit for declaring the legitimacy of a person,
- A proceeding for attaining or contesting the custody of minor,
- A suit for maintenance of wives, children and old parents.
In Shyni v. George, it was held that the wife can plead a close relative of her husband or even a stranger on allegations that the husband had handed over the property to them in a suit for recovery of the property. This would not oust the jurisdiction of Family Courts.
According to Shahnaz v. Shirin, it was decided that the decree of the family court can not be declared null or void. It is not maintainable as this court has precedence above matrimonial and family law statutes.
According to Section 7 (2), the Family Courts can also exercise the power which is normally exercised by a Magistrate of the first class under Chapter IX of the CCP, 1973.
Challenges faced by the Family Courts
The Family Courts were set up for speedy decisions on matters related to matrimony or family, however, it also had to face a lot of backlash and challenges, some of which are:
- The term ‘family’ has not been defined in Section 2 of the Act, among other definitions.
- The Act has empowered the State Government to make rules for the working of the Court but these powers have not been effectively used by many States.
- Many times the counsellor or the mediator changes in between the ongoing suit. This causes a lot of psychological damage to both the parties as they have to start over.
- The gender justice and equality has not been really ensured in the proceedings of many cases.