Family court

What is a Family court?

Family courts are special courts that deal primarily with family disputes such as divorce, validity of marriages, maintenance and the custody and guardianship of children. 850 family courts are functioning across the country as of October 2024.

The main objectives and reasons for setting up of Family Courts are to:

1. create a specialized court which will exclusively deal with family matters so that such a court may have the necessary expertise to deal with these cases expeditiously. Thus expertise and expedition are two main factors for establishing such a court;
2. institute a mechanism for conciliation of the disputes relating to family;
3. provide an inexpensive remedy; and
4. flexibility and an informal atmosphere in the conduct of proceedings

The Family Courts Act of 1984 establishes family courts. The Act requires all state governments to establish family courts for every city or town area in the state whose population exceeds one million and in other areas as the state deems necessary.  The states of Uttar Pradesh, Tamil Nadu, Delhi, Karnataka, Maharashtra etc have enacted their respective rules under the act. The Act unifies civil and criminal jurisdiction under one roof, centralizing litigation related to family matters. This integration has been recognized as a measure to streamline legal proceedings, particularly benefiting women, by ensuring quicker disposal of cases and enhancing the seriousness of proceedings.

The official definition of Family Court

The Family Courts Act does not provide an official definition of what a ‘family court’ is. The brief on the family court scheme provided by the Department of Justice defines it as “a specialized court which will exclusively deal with family matters so that such a court may have the necessary expertise to deal with these cases expeditiously”. The brief further explains that family courts also provide a mechanism for “conciliation of disputes relating to the family” and to “have flexibility and an informal atmosphere in the conduct of proceedings". Family courts have to assist and persuade parties to arrive at a settlement when the case initially reaches the court.

Legal Provisions relating to Family Courts

The Family Courts Act provides a framework to ensure the effective and sensitive handling of disputes relating to marriage and family. Key provisions include:

Jurisdiction of Family Courts

Family Courts exercise the jurisdiction of District Courts and subordinate civil courts in matters such as

• Marriage disputes (validity, annulment, etc.)
• Property disputes between parties to a marriage.
• Maintenance, guardianship, and custody of children. Additionally, Family Courts exercise the jurisdiction of First Class Magistrates under Chapter IX of the Cr.P.C., concerning orders for the maintenance of wives, children, or parents. Other courts are excluded from handling matters within the jurisdiction of Family Courts.

Appointment of Judges

Section 4 deals with appointment of Judges and prescribes eligibility and qualification for such appointment. Judges appointed to Family Courts must demonstrate a commitment to protecting and preserving the institution of marriage and promoting dispute resolution through conciliation and counseling. Preference is given to appointing women as judges.

Counselors and Welfare Institutions

State Governments determine the number and categories of counselors, officers, and other personnel to assist Family Courts in their functioning. As per Tamil Nadu Family Courts (Procedure) Rules, 1996. The duties and functions of counsellors include assisting and advising parties in settling disputes or achieving reconciliation, with prior permission from the Court allowing them to visit homes, interview relevant individuals, gather information from employers, and refer parties to experts in fields like medicine or psychiatry. Information obtained by counsellors is confidential and cannot be disclosed or used as evidence without both parties' consent, though reports on home environments, relationships, or financial circumstances may be submitted to aid the Court in matters like custody, maintenance, or alimony. Parties can make submissions on counsellor reports, but counsellors cannot be cross-examined. Settlements reached before counsellors are documented and countersigned, forming the basis of a Court decree unless deemed unlawful or unconscionable.

State Governments may associate institutions engaged in family welfare, especially those working with women and children, to assist Family Courts in their functions.

Procedure

Privacy of Parties

A crucial feature of family courts is that court proceedings can be conducted “in camera” if either of the parties or the court wishes to do so. This means the public will not have access to the courtroom where the proceedings are happening.

Further, The Delhi Family Courts (Amendment) Rules, 2024. emphasize protecting the privacy of parties and sensitive information in Family Court proceedings. Parties are prohibited from including sensitive personal details in pleadings or attaching such documents without the court’s permission. Sensitive documents, such as letters, photos, electronic records, or CCTV footage, must be handled carefully, with courts issuing orders on their usage, preservation, and confidentiality. Access by third parties is restricted and subject to specific court directions. Proceedings should ideally be held in camera, and the court must ensure the anonymity of parties in public records, replacing names with initials. The Family Court is tasked with safeguarding privacy and dignity while expediting decisions on such matters.

Pre Litigation Settlement

The procedural framework under the Act prioritizes conciliation and settlement. Family Courts are required to assist parties in reaching a settlement and may adjourn proceedings to facilitate this. In K. Srinivas Rao v. D.A. Deepa the Supreme Court observed that "Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time-limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time-limit.

Legal Representation

Legal representation is not an automatic right for parties before a Family Court. However, the court may appoint an amicus curiae to ensure justice.

Pleading and Evidence

Evidence can be presented through affidavits, and courts may summon individuals to verify facts. The Delhi Family Courts (Amendment) Rules, 2024 also provide that affidavit of assets, income and expenditure should be accompanied with pleadings and written statement filed in family court.

Judgment/Decrees

Judgments of Family Courts are concise, straightforward, and include the decision along with the reasons. Decrees issued by Family Courts can be executed in accordance with the CPC or Cr.P.C., as applicable.

Appeals

Appeals against judgments or orders of Family Courts lie with the High Court.

Technology Initiatives

In 2023, the Kerala High Court also introduced a Family Court Case Management Module which provides a case management system for judges and Chief Ministerial Officer (CMO). It includes a case allocation calendar to make scheduling easier and ensures that the cases allocated by the CMO to counsellors and mediators are available instantly, preventing delays. It also has a dashboard in place for High Court judges to monitor the case pendency in each Family Court.

Appearance in judicial databases

Department of Justice website

The Department of Justice has provided the following information regarding family courts on its website:

• Number of functional courts
• Number of cases disposed of during the month
• Number of pending cases

The onus to report data for these statistics is on the respective High Courts and State Governments which has been performed regularly.

An interactive map showing the number of  family courts, cases disposed of and cases pending by State accessible at https://dashboard.doj.gov.in/family-court-cases/index.php

While this data is sufficient to show a State-wise picture of the performance of family courts, more insights could be gained from accessing district-wise data.

Data on the number of cases disposed of as of February 2024 accessible at https://dashboard.doj.gov.in/family-court-cases/index.php

E-Courts

On the e-courts website, it is possible to access the orders for cases disposed of and pending in the case status section. For instance, in the image below it is possible to find orders for cases for maintenance under Section 125 of the Criminal Procedure Code, 1973 on the Hindu Marriage Act,1955 and cases under the Guardians and Wards Act, 1890 which are all dealt by the Family Court. Note that most of these cases are anonymised and party names are given only as ‘XXXXX’ in most cases as shown in the screenshot below. However, case and hearing data on these cases is still available.

High Court Websites

Family Courts of Madhya Pradesh

District courts can set up a system similar to that of the Family Courts website of Madhya Pradesh where district-wise, monthly data of family court cases disposed and pending are available.

Below is the Family Courts website of Madhya Pradesh displaying the number of cases filed and disposed of in Shahdol district updated as of 20 February 2024.

High Court of Tripura

The High Court of Tripura has a monthly list of a number of cases pending in family courts since 2016, it is updated every month.

Pendency of family court cases in Tripura

Research that engages with Family Courts

• An Analysis of Pendency of Cases in Family Courts of Madhya Pradesh and Methods to Reduce Pendency (2020), National Judicial Academy The report studies Family Courts functioning in different jurisdictions and identifies best practices which could be adopted in the existing framework of Family Courts to bring then to excellence. Based on the research, various workable suggestions and recommendations have been put forth through this report.
• Challenges and Solutions in Establishing Functional Family Courts in Different States, Administrative Staff College of India and a Ministry of JusticeThis report is an empirical study focused on the effectiveness of family courts South-Indian states, namely Andhra Pradesh, Kerala and Telangana. It assesses whether the courts have held up to the expectations of a court with a conciliatory approach rather than adversarial, and avoid multiple litigations. The report finds the courts falling short on various parameters such as accessibility without legal aid, the courts approach going against gender justice, infrastructural limits.
• Report on the working of Family Courts and model family courts in India, National Commission for Women (2002)The report prepared by the National Commission for Women as a result of a workshop. It delineates the working of family courts and the legal barriers that range from statutory lacunae to the de facto management in family courts.