Have Family Courts lived up to Expectations?

The Family Courts Act 1984 was enacted with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs, based on non-adversarial and multi-disciplinary approach. The Family Courts (FCs) are expected to (i) adopt a radically different approach than that adopted in ordinary civil proceedings, and (ii) make reasonable efforts for conciliated settlement before the trial commenced, and during this stage the proceedings are to be informal. Gender sensitised personnel, including judges, social workers and other trained staff are expected to hear and resolve family related issues by eliminating the rigid rules of procedure. To preserve the informality of procedures, it was specifically laid down that the parties to a dispute were not entitled, as a matter of right, to be represented by legal practitioners. However the court, in the interest of justice, can seek the assistance of legal experts as amicus curiae. The FCs are supposed to follow simplified rules of evidence and procedure so as to effectively deal with the family disputes, and for achieving this purpose the Code of Civil Procedure was amended. Conciliation, speedy settlement, non-adversarial approach, multi-disciplinary strategy to deal with family disputes, informal and simple rules of procedures and gender justice were supposed to be the cornerstones of the philosophy of the FCs.

The Family Courts Act (FCA) was part of the trends of legal reforms concerning women. The Act was expected to facilitate satisfactory resolution of disputes concerning the family through a forum expected to work expeditiously in a just manner and with an approach ensuring maximum welfare of society and dignity of women.

We attempt a dispassionate and critical analysis of the actual functioning of FCs and examine whether FCs have lived up to their expectations.

Indifferent Counselling and Conciliation Services

Counselling and conciliation are the two pillars on which the whole structure of FCs is built. Counselling, in fact, is the foundation on which the philosophy of conciliated settlement rests. The counsellors, their skill and competence have a tremendously important role to play in the whole process. The role of the counsellors is not limited to counselling but extends to reconciliation and mutual settlement wherever deemed feasible. A good number of cases (by one estimate up to 50 per cent) can be resolved by way of proper counselling. In about three-fourths of the cases, except of course in cases of rape, adultery, etc, the quarrel starts on very simple issues. The initial fault may either relate to the husband or the wife. Such disputes and differences can be worked out with proper and competent counselling.

Notwithstanding the important role of the counsellors, it has been observed that some of the FCs do not even have any counsellors, and in good number of courts the counsellors keep on changing frequently. For example, in Tamil Nadu, the marriage counsellors keep changing every three months, and each time the woman meets a new counsellor she has to explain her problems all over again, with no continuity is discussion. Many of the counsellors are just part-time and are not properly trained. Proper selection and training of the counsellors is of crucial importance for efficient and competent delivery of justice. As is expected, it is the counsellors who take up the cases at the first stage. It has been seen that in many cases where counselling has failed at the initial stage, proactive role of the judge has helped in resolving the dispute. The present rules or practices, however, do not permit the judge to personally counsel the parties when the case has come up for trial.

Absence of Requisite Changes in Substantive Laws

The FCA is not a self-contained Act; it has to be read along with other applicable laws. The problems connected with substantive laws are formidable and continue to persist. The jurisdiction of the FCA extends to the problems that arise due to the breakdown of a marriage, divorce, restitution of conjugal rights, claims for alimony and maintenance and custody of children; it does not in any way alter the substantive laws relating to marriage. It is customary in Indian society for a woman to leave the matrimonial home, and thus she loses residence therein. For her residence, she has to depend upon her parental home or has to look for some other shelter. Even though right of residence has now been provided in the newly enacted Domestic Violence Act, it is yet to be seen how effectively it is enforced in practice. Whether or not she gets maintenance during a separation or after divorce depends on her ability to prove her husband’s means. In a situation where women are often unaware of their husband’s business dealings or sources of income, it is difficult, if not impossible, to prove his income. To make matters worse, the existence of a parallel black economy makes it impossible to identify the legal source of income. FCs must have investigative powers to be able to compel disclosures of income and assets for passing appropriate orders of maintenance.

Alimony and maintenance should be linked not with declared incomes but with life styles of the parties involved. While assessing the income or assets of the husband for ascertaining the maintenance amount, the judges should take the assistance from the social workers, NGOs and probation officers who could, inter alia, draw inference from the standard of living of the family. Though right of residence has been given to the wife under the Domestic Violence Act, it should be considered as part of maintenance. Further, the maintenance must be deposited in the court at the beginning of every month by an assigned date to ensure that the wife receives her dues in time.

Unless corresponding changes are made in the substantive laws in adequate manner conferring rights on women, the setting up of family courts does not help in altering their position. The right to matrimonial property would be the first step in ensuring security for women. This would mean that all property acquired after the marriage by either party, and any assets used jointly, such as the matrimonial home should belong equally to the husband and the wife. Only when based on such modifies laws, the FCs would be able to provide effective relief to women in case of breakdown of the marriage. Even otherwise, courts must be empowered by law to transfer the assets or income of a husband to his wife and children or to create a trust to protect the future of the children of a broken marriage. But as the law stands today, courts have no power to create obligations binding on the husband for the benefit of the wife or children. Without changes in substantive laws the FCs have and would end up as poor substitutes for civil courts.

Deficiencies of the FCA

The law against domestic violence (including woman) has now been enacted.

It is common knowledge that wife beating is prevalent in all classes of Indian society. It is too early to say how far this enactment would protect a woman against a violent husband. Such legislation was urgently required.

The FCA does not explicitly empower the court to grant injunctions preventing violence or ouster of violent husbands. Though some courts have started giving these injunctions based on the rights of the wife and children to reside in the matrimonial home and based on recognition of the husband’s obligation to maintain his wife and children, which includes residence, there remains a long path yet to be covered. As a result, the Act has ended up being an ineffective instrument to impart justice to woman. There have been a good number of maintenance orders and even injunctions passed for restraining the husband from throwing the woman out of the matrimonial home (or against a second marriage), women, in fact, have been thrown out (and husbands have married). Since the FC has restrictive jurisdiction and does not have the power to decide issues of contempt, people do not seem to take the court as seriously as they would a magistrate or a city civil court. The Family Court system must develop processes, perhaps with the help of civil society organisations, to ensure that atrocities against women are minimised in the first place.

As the Act does not define ‘family’, matters of serious economic consequences which affect the family, such as testamentary matters, are not within the purview of the FCs. Only matters concerning women and children—divorce, maintenance, adoption etc.—are within their purview.

Orientation and Attitude of FC Judges

Though the FC was aimed at removing the gender bias in statutory legislation, the goal is yet to be achieved. The Act provides that persons who are appointed to the FCs should be committed to the need to protect and preserve the institution of marriage and to promote the settlement of disputes by conciliation and counselling. It was laid down that preference should also be given to the appointment of women as FC judges. (In the course of the workshop organised in March 2002 by the NCW, it was noted that there were only 18 women judges till then in the FCs in India out of 84 judges in all the 84 courts that existed at that time.)

The criteria for appointment of FC judges are the same as those for appointment of District Judges requiring seven years experience in judicial office or seven years practice as an advocate. It is common knowledge that in establishing the FCs, the same judiciary has been incorporated, as it existed in the civil/criminal courts. A change of cadre is yet to be adopted. Besides, there are problems relating to promotional avenues of FC judges. Several of the FC judges are a disgruntled lot as they find their avenues for promotion practically stymied.

The judges appointed to the family court do not have any special experience/expertise in dealing with family matters, nor have they any special expertise in settling disputes through conciliation, a requirement prescribed in the Act. The provision that women judges should be appointed and that the judges should have expertise and experience in settling family disputes, more or less, has remained only on paper. In many states the FCs do not have a single woman judge.

Lack of Uniformity in Rules and Procedures

Apart from prescribing the qualifications of the judges of the FCs, the Central Government has no role to play in the administration of the Act. Different High Courts have laid down different rules of procedure. Though the Code of Civil Procedure was amended to do away with the rigid rules of procedure, the FCs, however, continue to deal with the family disputes in the same manner as other civil matters and, by and large, the same adversary approach prevails. The need for a set of uniform rules, therefore, has been felt imperative. While the Act laid down the broad guidelines, it was left to the State governments to frame the rules of procedure. Over and above this, there are still several States, which have either not set up family courts, or if they have, they have not bothered to frame the rules of procedure. In order to give effect to the paradigm shift from adversarial model to a conciliatory (or even inquisitorial) model envisaged under the Act, the description of the subject as A versus B, which indicates hostility, should rather be addressed as in the matter of A and B. Once the matter reaches the trial/contest stage, the same adversarial approach, unfortunately, gets to the fore.

An example where the objective of the Family Court is diminished due to procedural inertia or lapses may be cited. Rules formulated are yet to provide a specific format for the interim applications, summons etc. Many lawyers still use the format which is provided in the Civil Procedure Code which uses words like ‘Counsel can be heard by’; ‘Counsel for the Petitioner’, although the lawyers were earlier not allowed to represent clients.

The Rules provide for tape recorders for recording evidence at trial proceedings, which could be used at the appeal stage, but this proposal seems too far-fetched for the family courts, which do not even have adequate provisions for paper and stationery to begin with. Unless these lacunae are removed the family courts cannot render an effective aid to women’s fight for justice.

Permitting Lawyers not an Unmixed Blessing

Though the Act and Rules, till some time ago, excluded representation by lawyers, the system did not create any alternative system of simplified rules. Merely stating that the proceedings are conciliatory and not adversarial does not actually make them so. It is contended that the worsening of situation arose because of the absence of lawyers (who, of course, have now been permitted), which left the litigants at the mercy of court clerks and peons to help them follow the complicated Rules. It may be true that women, in general, may not even understand the consequences of the advice or suggestions given by court officials. For instance, when a woman files for divorce and maintenance, the husband turns around and presses for reconciliation only to avoid paying maintenance. From women’s viewpoint it is crucial that people who mediate are aware of these tactics. If a judge or a counsellor feels that a woman should go back to the husband simply because the latter was making the offer and it was the wife’s duty to obey him, it must be realised that that there is every possibility that it could be detrimental to the woman’s interest. Though it could be argued that the exploitation of innocent women on this count would be prevented by allowing the legal practitioners in the FCs (as they are familiar with the Rules and Procedures and can render necessary assistance to their clients), it must, however, be stated that it is not an unmixed blessing. The practice of allowing the legal practitioners in family disputes militates against the very spirit (informality, non-adversarial approach and non-precipitation of relationship punctuated by marital discord during legal proceedings) embodied in the FCA. The provision of appointment of a legal practitioner as amicus curiae, where felt necessary by court, already existed. It is apparent that the judiciary has succumbed to the pressure tactics of the lawyer community. The remedy lied not in bringing the lawyers to the FCs, but in the simplification of rules and procedures and creation of requisite infrastructure in the FCs under which necessary assistance is provided to the litigants.

Inadequate and Poor State of Infrastructure

The FCs generally suffer from unsatisfactory conditions. There is no proper place for the judges to be seated and working conditions, by and large, are unhygienic and poor. There is no proper space allotted for the children to meet their separated parents. An empirical in-depth extensive study in Delhi and Jaipur done by the author revealed that as many as 36 per cent felt that the FCs lacked essential public conveniences like drinking water, waiting room, etc and facilities like photocopying, paid public telephone, availability of stamps, stationery etc. In the absence of basic infrastructure like a stamp office, typist and stationery, services of a notary or even adequate sitting arrangements, canteen and drinking water, the litigants are subjected to endless hardships.

Overall, in the aforesaid study, more than one-half of the respondents expressed their none-too-happy experience with FCs and stated that their expectations had not been met. The reasons for dissatisfaction found were: procrastination and dilatory decisions, overworked counsellors, and undue pressure exercised on women litigants for reconciliation, etc. On average, a respondent had to visit the FC as many as 21 times before the case was decided. Only 14 per cent of the cases were decided within the statutorily laid down time-frame of six months, while the remaining large number of cases were decided within a time frame ranging between more than six months and as long as nine years.1

One separate building should be constructed with all the facilities of family courts, for example., counselling centre, child centre (with recreation facilities), and so on for providing an informal atmosphere for the women litigants and their children, and this should not be within the premises of the District or High Courts.

The FCs should be located in easily accessible residential colonies where aggrieved women, for whose benefit the courts have been created, may go without hesitation. The intimidating atmosphere of normal law courts generally overawes women in social distress seeking judicial relief. The main objective in seeking the establishment of
Family Courts was to take family and marital disputes away from the overcrowded, intimidating and congested environs of traditional courts of law and bring these to congenial, sympathetic and supportive surroundings. Efforts made over the past more than two decades to provide prompt and easily accessible justice to women in social distress should not be nullified by the insistence of lawyers not to shift the FCs to various places. The primary objective of any law is to provide justice to the needy and not be merely a source of income for any profession, as was noted by a former Chairperson of the Delhi Women‘s Commission. Convenience of the practitioners of law is secondary to prompt dispensation of justice and alleviation of the suffering of those seeking justice.

The FCs were launched almost overnight, without proper and adequate planning and preparation. The lack of infrastructure and basic facilities make the fight for justice a Herculean task. While both men and women are affected, in any given situation women, who generally lack exposure to and experience in dealing with public institutions, are the worst sufferers. Infrastructure has another angle: the infrastructure that is necessary for a FC should be studied at the time of establishing it; otherwise it adds to the backlog of cases.

Concluding Remarks

The record of the current family court system is a mixed bag—in any case, not a commendable record. Over the last nearly quarter of a century, the system has given rise to anger, frustration and resentment over its functioning. The system lacks the trust of the majority of justice seeking population regarding its capability to provide a fair and just forum for handling family disputes. Unless the present situation of the family courts is remedied, the women will be forced to remain unsecured within their families and society. The overall situation is the same everywhere with minor differences. It has still to go a long way to accomplish the objectives implied in the FCA.

The measures like simplification of procedures, speedy settlement of disputes, a permanent cadre of competent counsellors who are capable of providing scientific and professional services, informal atmosphere in courts, qualified social workers, appointment of gender sensitised judges, uniformity of rules, extension of the FC services to all districts of India, strengthening of the system of probation officers, provision/creation of necessary infrastructure, model rules for appointment of judges, allowing the woman to file a case in the district or state where she resides rather than at the place where the marriage took place or where the husband resides or where they both last resided should be undertaken. Gender justice should be a component for recruitment and it should be made essential for a judge to have undergone a gender sensitisation course/training before taking the position as a judge. The FC needs to be empowered in the true sense of the term and the enforcement mechanism needs to be strengthened.

Maharashtra is the one of the few States that have detailed and elaborate rules regarding the functioning of the FC as well as regarding the service conditions, recruitment, remuneration of the counsellors etc. Maharashtra also has the unique distinction of having a children complex within the premises of the FC.

So far 153 Family Courts in various States and Union Territories (UTs) in India have been established. However, there are no family courts yet in the States of Haryana, Arunachal Pradesh, Mizoram and Meghalaya and in the UTs of Chandigarh, and Andaman and Nicobar Islands. Though the FCA envisaged the establishment of FCs in all cities with a population exceeding one million, there is a need to establish such courts in each district of India in view of the prevailing conditions of increasing incidence of marital discord and divorce.

Reference

1. Jamwal, Namita Singh, Marital Discord: Modes and Settlement (with Speical Reference to Family Courts in India) [Doctoral Thesis, Jamia Millia Islamia University, 1998].