Family Courts Act, Provisions, Jurisdiction, and Amendment of 2022

10 March, 2023

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The family is the fundamental social institution present in every society, it forms the basic unit of modern society. It is a globally recognized group forming an emotional connection among its members. Family can be defined as a group of people who are tied by social institutions like marriage or bound by blood. We will discuss the role of Family Courts, their provisions, and their jurisdiction in this article, along with recent amendments of 2022.

A family can be categorized into four types which are listed as follows:

Nuclear Family: A family group including a couple and their unmarried children living in one household dwelling.
Joint Family: A combination of two or more nuclear families sharing one household dwelling is known as a joint family.
Matriarchal Family: A family where power and property are passed through the female line, which means the rulers of the family are female members. After marriage, a couple resides in the bride’s home rather than the bridegroom's.
Patriarchal Family: A family group where the source of authority as well as succession is passed through the male bloodline. After marriage, the sons live in their parent’s home whereas the daughters have to leave to reside at their spouse's home.

In such families, there are various disputes either between the married couple, property-related issues, adoption, or guardianship of the child. In order to handle such issues, Family Courts are developed with the primary motive of resolving the legal issues between the families via reconciliation wherever possible.

What are Family Courts?

A court where legal issues are resolved that arise from family relationships. In Family Courts, various disputes are resolved related to the dissolution of marriage, parental rights and custody of children, juvenile cases, adoptions and termination of parental rights, guardianship, orders of protection against domestic violence, maintenance and alimony, property of married couples, and restitution of conjugal rights. The procedure in family court to deal with these issues or cases is less strict as compared to the Civil or Criminal Courts. All these cases are handled as per the personal law of their religion such as the Muslim Law applied to Muslims, the Parsi Personal Law to Parsis, the Hindu Marriage Act to Hindus, the Indian Divorce Act to Christians, and various others. Currently, there are 743 functional Family Courts across the country as of December 2020, mentioned on the website of the Department of Justice. The government wants to set up Family Courts in almost every city or town of the country where the same is not available. For completing the desire of setting up Family Courts, the Family Courts Act, of 1984, was passed.

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Family Courts Act, 1984

This Act was enacted in 1984, with a motive to establish Family Courts for promoting conciliation in, and secure speed settlement of, disputes regarding marriage and family affairs and other related matters. It applies to all of India except the State of Jammu & Kashmir. According to the provisions of this Act, it is mandatory for the State Government to establish Family Court for every town or city with a population of more than one million. In addition, other states, towns, or cities where a population is less than one million can set up Family Courts if the State Governments consider it essentially necessary. This establishment is completed with the concurrence of the High Court. In addition, the State government after consulting with the High Court can specify the area’s local limits to which the jurisdiction of the Family Court will be extended as well as they have the authority to increase, decrease or alter the defined limits at any time.

One or more persons are appointed as the judges of the Family Court by the State government after consulting with the High Court. The primary objective of the appointed judges should be protecting and preserving a marriage. Also, the judges should be promoting children's welfare and should be well-experienced to promote the settlement of disputes through counseling and conciliation. Moreover, while selecting the judges for Family Courts, preference should be given to the women. Also, no person above 62 years of age should be appointed as a judge of a Family Court. This Act provides power to the Central government to create additional rules for the appointment of judges of the family court.

Jurisdiction

According to Section 7 of this Act, the Family Court may adjudicate on various matters which are listed as follows:

A suit or proceeding between the parties to a marriage for judicial separation or for a decree of nullity of marriage or dissolution of marriage or restitution of conjugal rights.
A suit or proceeding between the parties to a marriage related to their property.
A suit or proceeding for declaring the legitimacy of any person.
A suit or proceeding related to the custody of, guardianship of, or access to, any minor.
A suit or proceeding declaring the validity of a marriage or matrimonial status of any person.
A suit or proceeding for maintenance.
A suit or proceeding for an injunction in a marital relationship.
Jurisdiction, exercisable by any subordinate civil court or district court under any law as well as by a Magistrate of the First Class under Chapter IX of the CrPC (Code of Criminal Procedure, 1973).

Exclusion of Jurisdiction

Under Section 8 of the Family Courts Act, 1984, When a Family Court is established for a particular area, no District Court, Subordinate Civil Court, or Magistrate has jurisdiction or power referred to in Section 7 (1) and Chapter IX of CrPC respectively.

Family Courts promoting reconciliation

As per Section 9 of the Family Courts Act, 1984, certain duties of the Court for reconciliation between the parties are prescribed.

Section 9(1): Initially, in every suit or proceeding, the Family court should make efforts to convince both parties to reconcile and settle the dispute with an agreement. For this, appropriate rules should be followed by the Family Court as mentioned by the High Court.
Section 9(2): At any stage of the proceeding, if there is a possibility of reconciliation, then the Family Court can adjourn the suit or proceeding until the settlement is reached.
Section 9(3): This Section illustrates that the power provided in sub-section 2 of the Section 9 is an addition to the powers already available for Family Courts.

Moreover, Section 12 of the Act also promotes reconciliation through assistance from medical and welfare experts. In addition, institutions or organizations related to social welfare, an individual working in the social welfare field, a professional working for the welfare of the Family Court, and any person ensuring the effectiveness of the Court is involved with the Family Court for better results. According to Section 6 of this Act, officers, counselors, and other employees helping the Family Court to perform its functions appropriately are provided by the State government after consulting with the High Court. It has been determined that various cases, disputes, or issues in the Family Court are resolved easily with effective counseling; therefore, a fair selection of counselors should be initiated for the Family Courts.

Family Courts (Amendment) Bill, 2022

In the Lok Sabha on July 18, 2022, the Family Courts (Amendment) Bill was introduced that amends the Family Courts Act, 1984. This amendment Act seeks the establishment of Family Courts in the State of Nagaland with effect from September 12, 2008, and in the State of Himachal Pradesh with effect from February 15, 2019. According to this Amendment, every action taken within the Family Court including the appointment of judges or judgments passed by them will be considered to be valid from the dates afore-mentioned. In addition, this Act also introduces a new Section (Section 3A) to retrospectively validate all the actions taken by the State Government of Nagaland and Himachal Pradesh.

Conclusion

The main motive behind the Family Court (Amendment) Bill, 2022 was the lack of jurisdiction of Family Courts in the States of Nagaland and Himachal Pradesh. It was determined that no notification was issued by the Central government for extending the jurisdiction of the Family Courts of both states. The Family Courts of the State of Himachal Pradesh and the State of Nagaland were functioning without any jurisdiction and any action taken under the provisions of this Act was considered to be null and void.

The Hon’ble Supreme Court has held in M.P. Gangadharan V. State of Kerala (2006) that a Family Court should not be established only because of the requirement of the Act, but also because the state must be aware of the fact that it has a responsibility to provide all the necessary infrastructure to the forum for dispute resolution.

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