Family Courts Act, 1984 : A Step in the Right Direction
Suman Jain, Advocate
Punjab & Haryana High Court, Chandigarh
Date : 18/03/2019 - Location : SJ & Associates #541, Sector 12-A, Panchkula - Phone No. 09216255775, 0172-2971222
Family Courts Act, 1984 : A Step in the Right Direction"From the beginning the objective of establishing family courts was to provide speedy disposal of cases involving problems faced by women who were traumatized by marriages that had turned bitter."
-National Commission for WomenThe 1980s were a period of great upheaval in the womens movement in India. The infamous Mathura rape case led to a consolidation of womens groups at the national level, with Parliament eventually enacting the Criminal Law (Amendment) Act, 1983 in response to the outcry. The issue of womens rights stayed very much at the forefront through the decade, with movements around Sati (subsequent to Roop Kanwars immolation), environmental concerns, and the issue of dowry inter alia. The Family Courts Act, 1984 ["1984 Act"] was enacted in this context, and was in keeping with the spirit of the times. The idea was to recognize the difference in the nature of family disputes and ordinary civil suits, and facilitate resolution of the former accordingly. In Abdul Jaleel v. Shahida, 2003 (3) SCR 498, ["Abdul Jaleel"]. the apex court expounded on the underlying principles based on which the 1984 Act was drafted. It opined that the Act brought in an approach which was "radically different from that adopted in ordinary civil proceedings". Further, it observed that the statute was enacted subsequent to insertion of Order 32A in the Civil Procedure Code, 1908 as the Order was unable to bring about palpable change. The primary positive change brought about by the 1984 Act is the introduction of conciliation in resolution of family disputes. When both parties come before the family court for the first time, they are usually referred to a counselor whose role is to carry out conciliation. In this manner, a non-adversarial procedure has been institutionalized through the 1984 Act. The report of the counselor is granted such importance, that in Perry Kansagara v. Smriti Madan Kansagara, Civil Appeal No. 1694 of 2019, decided on 15th February, 2019. the Supreme Court held that counselors report with respect to interaction with the child can be relied upon to determine custody issues. The counselor attached to the court functions on the basis of rules by the relevant state government of High Court. However, as noted by the National Commission for Women, there is no uniformity in the rules formulated by various states, thus giving rise to the potential of ad hocism. S. 9, 1984 Act also enjoins upon Family Courts the duty to make efforts for settlement and assist the parties in this regard. In R Durga Prasad v. Union of India, 1998 DMC 45, ["R Durga Prasad"]. it was observed by the Jharkhand High Court that this is a mandatory duty that is cast upon courts and case should only be posted for further steps if it is concluded that such settlement is impossible. Further, in K Srinivas Rao v. DA Deepa, AIR 2013 SC 2176, ["K Srinivas Rao"], the apex court dictated that under S. 9, mediation can be referred to (with parties consent) even if a failure report is submitted in the conciliation process. The above provision and its judicial interpretation aptly illustrate the renewed spirit that the 1984 Act has brought in the resolution of family disputes." It must be noted that rather than being a new substantive law, the 1984 Act is a new procedural approach for application of pre-existing substantive laws. Apart from the above procedural flexibilities, Family Courts have also been provided flexibility vis-a-vis evidentiary provisions. Further, civil and criminal jurisidiction have both been vested in such courts to enable resolution of all connected matters in a family dispute. Apart from purely legal aspects, Family courts also represent a step forward in accounting for the human angle in family disputes. For instance, the Childrens Complex set up in the Mumbai Family Court provides a comfortable environment for the child and the non-custodial parent to carry out meetings. This is unlike the traditional setup wherein parents are forced to meet their children for a brief duration in hostile courtrooms. A significant innovation is the inclusion of suits with respect to property between parties to a marriage, as provided in Expl (c), S. 7, 1984 Act. This ensures an expeditious method for resolution of property disputes which arise in the context of marriage. The relevance of Family Courts has now increased in light of an increased divorce rate in Indian society. A Family Court can be set up in any city or town whose population exceeds one million. As urbanization and an increased population have led to growth in residents of towns and cities, the potential areas for establishment of Family Courts have increased manifold. The state of Haryana recently decided to set up Family Courts in seven more districts, a reflection of the increasing importance of such courts. In light of the above situation, there are certain emerging issues vis-a-vis Family Courts which require a closer analysis. Firstly, the issue of privacy is a pressing one. Right to privacy is now included within the ambit of Article 21, as per the judgment in Justice K.S. Puttaswamy v. Union of India, 2018 (12) SCALE 1, ["Puttaswamy"]. This right could potentially be in conflict with the evidence presented in family courts, as it is often of a sensitive and private nature. For instance, subsequent to Puttaswamy, a family court in Delhi held that a recording of a private telephonic conversation is admissible in a Family Court even though it was collected by planting a recorder in the bedroom i.e. in clear breach of the right to privacy. The honorable Judge observed that consequences of violation on inadmissibility of evidence have not been discussed in Puttaswamy, thus enabling him to permit admissal of such evidence. Also relevant here are the 2015 guidelines with respect to privacy in family matters issued by the Delhi High Court. Herein, the court gave directions to ensure protection of information of a private nature even prior to the holding in Puttaswamy. This issue is being given conflicting interpretations by courts across the country and deserves dedicated attention of our higher judiciary." Secondly, there is the issue of inclusion of Domestic Violence proceedings in the jurisdiction of Family Courts. The jurisdiction clause i.e. S. 7 of the 1984 Act does not include proceedings under Protection of Women from Domestic Violence Act, 2005 ["DV Act"]. However, S. 26 of the DV Act enables parties to seek relief before a Family Court. In light of the above, the Bombay High Court in Ambreen Akhoon v. Aditya Paudwal, 2017 (3) RCR (Civil) 645, ["Ambreen Akhoon"]. held that even relatives of the husband can be made party to proceedings before Family Courts if they are under S. 26, DV Act even though they are not parties to the marriage. This beneficial interpretation seeks to widen the ambit of jurisdiction of Family Courts and must form a model for legislative inclusion of domestic violence under the 1984 Act. It has been seen that Family Courts have been an innovative addition to the Indian judicial system. However, emerging grey areas must be resolved to ensure their continued efficacy.  Para 13, supra note 1.
 National Commission for Women, Report on Working of Family Courts and Model Family Courts, (Mar. 2002), available at http://ncw.nic.in/sites/default/files/Working%20of%20Family%20courts%20in%20India.pdf (last visited on February 26, 2019).
 Order on June 11, 2016 in Mat. App. (F.C.) 78 of 2015 & CM APP No. 11008 of 2015, Del HC.
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