HISTORY OF ESTABLISHMENT OF FAMILY COURTS IN INDIA
Marriage as an institution has become the subject of great judicial scrutiny. There are a number of judicial provisions dealing with marriage and other matrimonial aspects. The result is that, in addition to the various advantages that these legal provisions may provide; the privacy of this institution has been threatened. As per studies conducted in Mumbai and Delhi, 40 % of marriages are heading towards divorce. There are also cases of misuse of provisions like Section 498A of the Indian Penal Code, Protection of Women from Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few. There are issues like alimony which become the topic of great controversy and cause harassment to families. What further becomes a problem is that personal issues get intertwined with the legal issues and lead to the unnecessary prolonging of the disposal of these cases. The younger generation, being made a scapegoat in the changing times due to the ensuing cultural war between Conservatives and Liberals, wastes its useful youth in the precincts of the litigating corridors of the family courts, criminal courts and magistrate courts waiting in long queues being expectant of receiving justice. The channelling of these cases to different courts set up specially for this purpose not only ensures their speedy disposal, but also ensures that the cases, being dealt by with experts in courts specially set up for this purpose; are dealt with more effectively. The saying that “justice delayed is justice denied” then becomes relevant to take into consideration.
The need to establish the Family Courts was first emphasized by the late Smt. Durgabai Deshmukh (an Indian freedom fighter, lawyer, social worker and politician. She was a member of the Constituent Assembly of India and of the Planning Commission of India). 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. Later on there was mounting pressures from several women’s associa tions, welfare organisations and individuals for establishment of special courts with a view to providing a forum for speed settlement of family-related disputes. Emphasis was laid on a non-adversaria method of resolving family disputes and promoting conciliation and securing speedy settlement of disputes relating to marriage and family affairs.
In 1975, the Committee on the Status of Women recommended th at all matters concerning the family’ should be dealt with separately. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family, the court ought to adopt and approach radi-cal steps distinguished from the existing ordinary civil proceedings and that these courts should make reasonable efforts at settlement before the com-mencement of the trial. Gender-sensitized personnel including judges, social workers and other trained staff should hear and resolve all the family-related issues through elimination of rigid rules of procedure. The Code of Civil Procedure was amended to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. Hence a great need was felt, in the public interest, to establish family courts for speedy settlement of family disputes.
Thus, the Family Courts Act was passed in the year1984 as a part of the trend of legal reforms concerning women to promote reconciliation and se-cure speedy settlements of disputes relating to marriage and family affairs. The underlying idea is to provide an amicable atmosphere for settlement. The President gave his assent to the Family Courts Act on September 14, 1984.
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. Family Courts function under the administrative control and superintendence of the State Government or Union Territory Administration along with the relevant High Court. The Act has 6 chapters under various heads such as Preliminary, Family Courts, Jurisdiction, Procedure, Appeals and Revisions and Miscellaneous.
The first ever family court in the world was established in the United States in 1910, and they were referred to as domestic relations courts.
