The Original Jurisdiction in a Sentence
A special conciliatory procedure was introduced for suits relating in matters concerning the family vice, matrimonial relief including a declaration as to the validity of the marriage, Legitimacy of a person, guardianship, or custody of a child, maintenance, validity,
or effect of adoption, intestacy, and succession. A duty was imposed on the court, whenever possible to do so, consistent with the nature and circumstances of the case to assist the parties in arriving at a settlement in respect of the subject matter of the suit. However, the courts have sparingly used
- The Sixth Law Commission was established in 1971 under the Chairmanship of Justice P. B. Gajendragadkar. It stayed in office till 1974. It presented the 59reports; in 1973 The Hindu Marriage Act, 1955 and Special Marriage Act, 1954
the download of the web. law commission of India.nic.in. dt.15-08-219 order XXXII-A in family disputes as they continue to follow traditional adversarial Systems in the same manner as many other civil matters.
It was realized in the public interest that adjudication of family matters involves a different culture and jurisprudence. The court adjusting family disputes should be helpful and preservative rather than fugitive in family and marriage and hence the need for family courts.
To facilitate the satisfactory resolution of disputes concerning family through a forum that works expeditiously in a just and fair manner ensuring maximum welfare to the foolery and in particular women, the government of India enacted the Family Courts Act 1984 (No. 66 of 1984). The Act stipulates.
- Establishment of Family Courts by State Governments in every city or town.
- With a population exceeding one million.
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At one time marriage was regarded as something permanent and indissoluble today divorce is one of the most predominant themes of modern literature which has consequently occupied the attention of many social scientist26.
The growing rate of divorce under new divorce statutes of modern India, among its heterogeneous population, has set forth a new vista to be visualized. What we need today is the inquiry into our matrimonial laws, besides setting and dressing them in accordance with the surroundings of our national way of life.27
In this research, an Endeavour is made to appraise and analyze the role of family courts in the resolution of matrimonial disputes and to make workable suggestions so as to make the working of family courts compatible with the rapidly changing social and family environment.
- Mukherji, P.B. The New Jurisprudence Tagore Law Lectures (1970). p.160.
- R I Just irretrievable breakdown of marriage as a ground for marriage. ed. (1;)1984 p.231
The Relevance of the Study
Family is the basic unit and the most elementary form of society and it serves as a link between individual and community.
The word ‘family’ commonly refers to a group of persons consisting of parents and children, father, mother, and their children, immediate kindred constituting fundamental social unit in a civilized society.28
The maintenance of the stability and continuity of family and the spirit of faith and confidence among its members are almost universally recognized. Family disputes and their resolutions are as old as the history of the institution of the family.
It is widely realized that no dispute needs so much attention and quick resolution as a dispute pertaining to a family.
Therefore, to keep the institution of the family intact as a unit of society, our Indian legal system has always provided for family dispute resolution according to the system of law and procedure.
This is the context of the origin of family courts in India. This research is an analysis of the effectiveness and functions of Family Courts in Saharanpur.
Most of the families experience difficulties and stress in their daily life, which result in various disputes within families, such as between couples, between parents and children, among siblings, and among other family members.
The disintegration of the family, in particular the relationship between husband and wife, has been caused by the economic, political and social changes, growth of population, industrialization,
Members of the family may include a spouse, parent, brother and sister, and son and daughter, grandparent, aunt, uncle, cousin, nephew and niece, or sibling-in-law, etc. globalization, technological advancements, and the increased awareness of individual rights of the spouses.
The basic dynamics within the family interaction and communication are seriously affected by these issues, and they ultimately lead
- Henry Campbell Black, Black’s Law Dictionary, 6th ed, West Publishing Co., U.S. 1990, p.604.
to the increase in matrimonial disputes. In India, marriage as an institution has become the subject of great judicial scrutiny; therefore, a number of judicial decisions are dealing with marriage and its various aspects.
Many issues disputed within the four walls of a household such as marital problems, custodial issues, and maintenance is affecting the rhythms of the family life. Hence the nuances of the disputes and the manner of their resolution cannot be addressed by purely legal tools, but they need unconventional solutions according to the family circumstances and requirements of the litigants.
The increase in family disputes resulted in the establishment of the Family Courts for their speedy settlements. The Preamble to the Family Courts Act states the objective of the Family Court as “An Act to provide for the establishment of Family Courts with a view to promoting conciliation in, and secure, speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.”
Thus family courts are special courts designed to deal with legal problems arising out of the family.29 in family courts, the family disputes are resolved through counselling and less legalistic methods.
It has adopted easier approaches than what is adopted in ordinary civil and criminal proceedings. Before introducing the family courts, family disputes were entertained in the civil courts.
It prolonged the time of the separation of the couples and often resulted in the impossibility of the settlement of family disputes. In 1974, the 59th Law Commission stressed the urgent need of setting up the family courts and suggested the proceedings to matters concerning family disputes.
The formation of Family Courts, passed on 14th September 1984, was a milestone in the history of the Indian judiciary. However, in Kerala, family courts were established only by 6th June 1992.
The family court gives matrimonial relief which includes nullity of marriage, judicial separation, divorce, restitution of
- “Family court’ Encyclopaedia Britannica Inc.,http://dictionary, reference. Com /browse/ family court, Accessed on
18-01-2015.conjugal rights, the declaration as to the validity of the marriage and matrimonial status of the person, property of the spouses or any of them, and a declaration as to the legitimacy of any person, guardianship, or custody of any minor, maintenance including the proceeding under the Cr. PC. The family court’s emphasis is on settling disputes by mediation and conciliation.
This ensures that the disputes are solved by an agreement between the two parties and reduces the chances of any further conflict. The aim is to give priority to a mutual agreement over the usual process of adjudication and form a congenial atmosphere where family disputes are resolved amicably.
It looks for an effective way of tackling the problem of pendency and improving the efficiency of the court system and cases are kept away from the trappings of a formal legal system. The formal legal system and the regular process of adjudication causes unnecessary prolonging of the matter, and the disputes can worsen over time.
This can be a traumatic experience for the families and can have a devastating effect on human relations.
In a family court, there are no winners and losers, but an inquisition in which the parties, social workers, welfare officers, and counsellors engage in finding out a solution to the family problems. Thus, the Family Courts’ main objective is to assist the effective disposal of cases relating to family matters.
Family, marriage, and kinship are diverse in nature and are based on varying cultural systems with diverse religious beliefs. In Saharanpur, marital breakdown and family disputes are increasing alarmingly in recent years.
It is not only separating the couples but is also disintegrating the relationship of the other family members. The number of broken families and cases of divorce is increasing in Saharanpur irrespective of caste, religion, and community.
The dispute between husband and wife is a very delicate issue, which calls for proper care and attention.
In this scenario, family disputes, family law, and family courts are getting more attention in the changing cultural, social, and economic context of the new social environment.
The physical and mental cruelty, dowry, extramarital relationship, alcoholism, mental illness, suspicion, mental retardation, and suicidal attempts are the major reasons for the family disputes in Saharanpur.
The family courts are the constitutional mandate for speedy disposal of disputes to grant quick justice to the litigants with the objective of ensuring the welfare of the family through a multi-disciplinary approach of resolving family problems within the framework of the law.
Though there is only one family court in Saharanpur, they are overburdened due to the pendency of a large number of cases, which makes it difficult for speedy disposal of matrimonial disputes.
Thus, it is time to analyze the process, structure, and functioning of family courts in Saharanpur. Therefore, the researcher has made an effort to examine basic issues on family Courts, especially to ascertain the effectiveness in rendering a speedy and amicable settlement of family disputes.
Objectives of the Study
Our experience many decades has shown that it is not sufficient to merely enact a god law and hope that it will bring about desired reforms. Reform through legislation cannot be merely invoked but has to be achieved and for that, enough provision has to be made of means to achieve it .therefore enforcement of the law is to be given the same attention and importance as is to be given to their enactment.
Besides a country with codified laws needs to look into the duties from time to time, revise them, and and re-enact them in order to bring them up to date. Thus thirty-five years of the enactment of the Family Court Act 1984 a serious need for research was felt to see as to how many Family Courts have been established in the country so far.
It was also felt more important to evaluate the working of the Family court which has already been established, to see that how far these courts have been successful in achieving the laudable objectives of reconciliation and speedy settlement of matrimonial disputes.
The purpose of this research is to point out the shortcoming in the working of the Family Court and give suggestions to overcome them, so that these courts may fulfil their objective of providing integrated broad-based service to the families in trouble, preserve the family and help to stabilize the marriage.
The study is also aimed to examine the Family Court Act from end to end for finding its loopholes and make a suggestion so that the FCA should be improved and corrected by the parliament in future by amending it every point at which experience has shown that it requires improvement and correction to make a full proof system.
The major objective of this study is to find out the ways in which family Courts operate for the speedy settlement of family disputes in the present situation in Saharanpur. The following are the detailed objectives:
- To examine the objectives and functions of the family courts in the context of the Indian constitution and the Family Court Act 1984.
- To find out the merits and demerits of the existing structures and functions of family courts in India, the USA, the UK, and Australia.
- To evaluate the family court systems in Saharanpur from the social and legal perspectives.
- To examine the reasons and challenges of the pending cases in the family courts.
- To find out the major barriers to the effective functioning of the family courts and to formulate necessary suggestions for the effective functioning of family courts in Saharanpur.
The Methodology of the Study
The research study is based on the analytical and empirical methods in the socio-legal perspective on the contemporary data of family courts, family laws, the Family Court Act, and related rules.
The empirical study was conducted in the family courts in Saharanpur from 2013 to 2018, and data was collected from the registers maintained by the family courts.
The researcher conducted unstructured interviews with the family court judges, counsellors, mediators, advocates, court officials, and petitioners for collecting information related to the functioning of family courts.
The researcher also collected data related to family courts under the Right to Information Act. Moreover, the researcher observed the functions and structures of the family courts to get first-hand information about conciliation, mediation, and litigation proceedings and the infrastructure facilities available in the family courts.
Three personal approaches have been adopted by the researcher case study of the decision of these cases has been done to see as to what type of cases come for disposal before these courts,
what procedure is followed, and what the quality of Judgment rendered? Further, statistical data has been collected from the primary documentary sources, such as certified copies of the courts regarding the family dispute,
The court office register, annual and half-yearly statements of the Family Court, and case files consigned to the record office. Besides, the procedure adopted by the Court for hearing the problems of the matrimonial dispute faced by the litigation especially women and children, the behaviour of counsellor and court staff with women litigants, etc.
1.8 REVIEW OF LITERATURE:-
For this study, various literary journals and books have been used. Material available for this empirical study is scanty. Much of the material for the study has been collected first hand from the respective Court as well as the record room.
Nevertheless, statutory material and judicial decisions have been gone through. Besides, standard reference books, articles, newspaper, have been gone through.
Regarding this study many books of Hindu Law such as the main Hindu Law, commentary Past and present Hindu Law, Paras Divan Modern Hindu Law and Mulla Principles of Hindu Law, Family law Kusum, Family court Act, etc.
The journals such as Kerala Law Times, Divorce and Matrimonial Cases, Andhra Legal Decision (Cri), All India High Court Cases, Andhra Legal Decisions (Cri), Accident and Compensation cases and Indian Bar Review are used Taking the help of the previous literature which is available this study has been completed This work is the step ahead to prove the wilily of family court in India.
The research would be of immense utility of all concerns. An empirical study of the family disputes in the Family Court, Saharanpur has never been earlier. It would provide necessary and useful data to the members of the bar and bench, the law and policymakers, the student of law and sociology, and to common people.
The research of the study would be in addition to knowledge in this area. The main thrust of this research has been to find out answers to the following question, i.e.
- Marital breakdowns are rising in Saharanpur in recent years.
- Family Court in Saharanpur is overburdened with too many cases and is unable to dispose of the suits in a timely manner.
- The existing methods of mediation and counselling programmed are insufficient and ineffective for the settlement of family disputes.
- The existing system of family courts in Saharanpur is inadequate to achieve the objectives of the Family Courts Act of 1984.
- Speedy and amicable settlement of disputes can be achieved by the effective functioning of family courts in Saharanpur.
- What type of difficulties is faced by litigants, and especially women?
- What difficulties are faced by women in the enforcement of maintenance and interim maintenance order?
- How many cases are pending in the Family Court?
- What is the workload on these courts?
- How much time is taken in the disposal of cases and whether the objective of speedy disposal of cases is achieved or not?
Scheme of Chapters
For the purpose of effective study, the entire thesis has been divided into nine chapters.
The first chapter being an introductory chapter contains the relevance of the study, objectives, hypothesis, and methodology, limitation of the study, Chapteraisation, and the development of family laws in India.
The second chapter provides a brief history of the origin and development of Family Courts. This chapter is an attempt to familiarize the concepts of family and family courts and it covers a brief history of family courts, the Family Courts Act, 1984.
The third chapter, the International perspective of family court deals with the Functioning of Family Courts in USA, UK, and Australia: A comparative study. This chapter explores the historical developments of family courts in the USA, UK, and Australia, and discusses the family court practices. This chapter also provides a brief comparative study of the functioning of family courts with that of India.
The fourth chapter family Court in India – Their Composition and Jurisdiction It covers an overview of the composition and jurisdiction of the family courts in India.
The fifth chapter Procedural aspect of Family Court in India It covers an overview of the functions and procedures of the family courts in India.
The sixth chapter is the implementation of the Family Courts Act – The national scenario. This chapter provides a brief history of family courts in India and examines the process, structure, and functions of family courts in India.
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The seven-chapter judicial response deals with Family Disputes and Courts. It covers the decisions of High Courts and Supreme Court related to the different aspects of the family disputes and its settlements.
The eight-chapter Empirical study and the working of family court in the district Saharanpur It also analyses the existing conditions of family courts and evaluate the functions and challenges for the speedy settlement of disputes of the family courts. Moreover, it analyses the statistical data collected from the family courts in Saharanpur.
The last chapter contains the Conclusions and Suggestions based on the research study. This chapter verifies the hypothesis and put forward some constructive suggestions and recommendations for the effective functioning of Family Courts in Saharanpur.