Family Courts in India

It is not unknown that a gaping loophole in the Indian Judiciary is the backlog of cases. The number of cases being filed in the Supreme Court is consistently on the rise. 34683 cases were filed in Supreme Court in the year 1999, whereas, 70350 were filed in the year 2008, the increase being about 103% nine years. There are cases dealing with a broad spectrum of issues such as family matters and property which continue for generations. Such cases continue for atrocious periods of time, ranging from 7 years to 30 years. In such a scenario, the channelling of cases to different courts set up specially for this purpose not only ensures their speedy disposal, but also ensures that the cases, being dealt by with experts in courts specially set up for this purpose; are dealt with more effectively. The saying that "justice delayed is justice denied" then becomes relevant to take into consideration.

Further, pertinent to note here is that Marriage as an institution has become the subject of great judicial scrutiny. There are a number of judicial provisions dealing with marriage and its various aspects. The result is that, in addition to the various advantages that these legal provisions may provide; the privacy of this institution has been threatened. As per studies conducted in Mumbai and Delhi, 40 % of marriages are heading towards divorce. There are also cases of misuse of provisions like Section 498A of the Indian Penal Code, Protection of Women from Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few. There are issues like alimony which become the topic of great controversy and cause harassment to families. What further becomes a problem is that personal issues get intertwined with the legal issues and lead to the unnecessary prolonging of the disposal of these cases. The younger generation, being made a scapegoat in the changing times due to the ensuing cultural war between Conservatives and Liberals, wastes its useful youth in the precincts of the litigating corridors of the family courts, criminal courts and magistrate courts waiting in long queues being expectant of receiving justice.

The Family Courts Act, 1984 was part of the trends of legal reforms concerning women. Because of the building pressure from various institutions lobbying for the welfare of women all over the country, 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. Prevalence of gender biased laws and oppressive social practices over centuries have denied justice and basic human rights to Indian women. The need to establish the Family Courts was first emphasized by the late Smt. Durgabai Deshmukh. After a tour of China in 1953, where she had occasion to study the working of family courts, Smt. Deshmukh discussed the subject with certain Judges and legal experts and then made a proposal to set up Family Courts in India to Prime Minister Pt. Jawaharlal Nehru.

To this background, a significant development has been the recent setting up of the Family Court in Delhi. Though such courts have been set up and are functioning in other states, the setting up of a family court in the Capital is a significant development and a step which was necessary to be taken. The main purpose behind setting up these Courts was to take the cases dealing with family matters away from the intimidating atmosphere of regular courts and ensure that a congenial environment is set up to deal with matters such as marriage, divorce, alimony, child custody etc. As mentioned earlier, an effective way of tackling the problem of pendency is to improve the efficiency of the system rather than changing the system altogether. A significant step is to make use of the available human resource. These family courts at Delhi are equipped with counsellors and psychologists who ensure that the disputes are handled by experts who do not forget that while there may be core legal issues to be dealt with; there is also a human and psychological dimension to be dealt with in these matters. The role of the counsellors is not limited to counselling but extends to reconciliation and mutual settlement wherever deemed feasible.

Procedure followed by the family courts- advantages of a conciliatory approach.
The Family Courts are free to evolve their own rules of procedure, and once a Family Court does so, the rules so framed over ride the rules of procedure contemplated under the Code of Civil Procedure. In fact, the Code of Civil Procedure was amended in order to fulfil the purpose behind setting up of the Family Courts.

Special emphasis is put on settling the disputes by mediation and conciliation. This ensures that the matter is solved by an agreement between both the parties and reduces the chances of any further conflict. The aim is to give priority to mutual agreement over the usual process of adjudication. In short, the aim of these courts is to form a congenial atmosphere where family disputes are resolved amicably. The cases are kept away from the trappings of a formal legal system. The shackles of a formal legal system and the regular process of adjudication causes unnecessary prolonging of the matter and the dispute can worsen over time. This can be a very traumatic experience for the families and lead to personal and financial losses that can have a devastating effect on human relations as well. This again points to the importance of having guidance counsellors and psychological experts to deal with such matters.

The Act stipulates that a party is not entitled to be represented by a lawyer without the express permission of the Court. However, invariably the court grants this permission and usually it is a lawyer which represents the parties. The most unique aspect regarding the proceedings before the Family Court are that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court. The Conciliators are professionals who are appointed by the Court. Once a final order is passed, the aggrieved party has an option of filing an appeal before the High Court. Such appeal is to be heard by a bench consisting of two judges.

Issues of concern- are the Family Courts functioning towards fulfilling their purpose?
The Family Courts' main purpose is to assist the smooth and effective disposal of cases relating to family matters. However, like any other system there are certain issues which become a matter of concern when it comes to the working of these courts. One such issue is that of continuity. For example, in the family courts at Tamil Nadu, the counsellors are changed every three months. Thus, when cases stretch for a period of time which is longer than this, the woman or the aggrieved person has to adjust with new counsellors and their story has to be retold several times.

A major drawback of the Family Courts Act happens to be that it doesn't explicitly empower Courts to grant injunctions to prevent domestic violence. While there has been progress, viz the enactment of the Protection of Women from Domestic Violence Act, 2005 which now extends to punishing women for acts of violence as well; there are still issues of jurisdiction to be tackled. It must be understood that the Family Courts Act has to be read in totality i.e. in accordance with the provisions in other laws, for example, the Civil Procedure Code on matters of jurisdiction.

Since the Family Court 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. Further, it was laid down in the Family Courts Act that the majority of judges should be women. However, this provision has not been complied with. In the course of the workshop organised in March 2002 by the National Commission for Women, it was noted that there were only 18 women judges till then in the Family Courts in India out of 84 judges in all the 84 courts that existed at that time

Government is empowered to make rules prescribing some more qualifications. Apart from prescribing the qualification of the Judges of Family Courts, the Central Government has no role to play in the administration of this Act. Different High Courts have laid down different rules of the procedure. However, this lack of uniformity could also be one of the reasons behind the fact that family disputes are still being heard by civil courts. Family courts also need to align themselves with women's organizations and NGOs dealing with the welfare of families, women and children.

Another matter of confusion is that the Act, by virtue of Section 13 provides that the party before a Family Court shall not be entitled as of right to be represented by a legal practitioner. However, the court may, in the interest of justice, provide assistance of a legal expert as amicus curiae. This is an example of which the objective behind the family court is defeated due to the procedural lapses. The fact that the proceedings are conciliatory does not relieve them of the complicated legal issues which may be involved in the family dispute. The question is whether a lawyer's participation will be useful or detrimental to the performance of a family court. That is the crucial issue. It was suggested at the workshop that the Women's Commission should consider whether an amendment could be proposed to allow participation of lawyers subject to a proviso giving power to the court to terminate his vakalatnama if he uses delaying tactics by unnecessary adjournments. If such control is given to the court the lawyers will not be able to get adjournments. Further, a lay person may be totally unaware of the legal jargon that invariably comes into play during the proceedings.

Further, the substantive aspect of the law cannot be ignored because it is what cases are made of. A practical example of a problem with the substantive law is that many times, the husband in a divorce cases resorts to reconciliation mainly because he wants to escape the responsibility of giving maintenance to his wife.

Conclusion
It is evident that the setting up of these family courts was a dynamic step so far as reducing the backlog and disposing off cases while ensuring that there is an effective delivery of justice goes. However, as aforementioned, there are still matters of concern which plague these courts. The issues relating to the functioning of these courts is to be seen in total, as quoted in the examples relating to the procedural as well as substantive aspects of the problems. There are many controversial and debatable issues such as engaging a lawyer due to the specific provisions of the Family Courts Act.

Furthermore, the lack of uniformity regarding the rules laid down by different states also leads to confusion in its application. Merely passing a central legislation is not in itself a complete step; for implementation in its spirit, it is to be ensured that some level of uniformity is maintained, at least in the initial stages of its coming into effect. Further, the need to amend certain laws is also to be examined and implemented effectively in order to ensure that these courts do not face any hindrance in their working. These small steps, if examined and implemented within time, will go a long way to ensure that the Family Courts are successful, to a greater degree, to fulfil the noble purpose for which they were created.

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Live- in relationship

NEW DELHI: Live-in relationship is neither a crime nor a sin, the Supreme Court has held while asking Parliament to frame law for protection of women in such relationship and children born out of it.

The apex court said, unfortunately, there is no express statutory provision to regulate live-in relationships upon termination as these relationships are not in the nature of marriage and not recognised in law.

In the landmark judgement, a bench headed by Justice K S Radhakrishnan framed guidelines for bringing live-in relationship within the expression 'relationship in the nature of marriage' for protection of women from Domestic Violence Act.

"Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage," the bench said.

"Live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal," the bench said, adding that various countries have started recognising such relationship.

The apex court said a legislation is required as it is the woman who invariably suffer because of breakdown of such relationship.

"We cannot, however, lose sight of the fact that inequities do exist in such relationships and on breaking down such relationship, the woman invariably is the sufferer," it said, noting "Live-in relationship is a relationship which has not been socially accepted in India, unlike many other countries".

The bench, however, said that legislature cannot promote pre-marital sex and people may express their opinion, for and against.

"Such relationship, it may be noted, may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against," it said.

The bench, however, said that maintaining an adulterous relation would not come within the ambit of live-in relationship which is to be protected by law.

"Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one's husband or wife, cannot be said to be a relationship in the nature of marriage," it said.
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Alimony

A divorce is not just a dissolving of a personal relationship. Since marriage is a social institution, its dissolution has far-reaching consequences on the whole family. And these consequences are both emotional and financial. The worst sufferers of divorce are women, who are not only find themselves bereft of the means to acquire basic necessities like food, clothing and shelter, but are also left to take care of the children from a broken marriage. To protect their interests, the Indian legal system has consistently tried to better the financial situation of women, by provisions of alimony.

Alimony is the financial support that a spouse is required to provide an estranged partner during and after a divorce. Alimony is usually granted to women, since they are traditionally homemakers, and thus find it difficult to support themselves and their children after a divorce. However, due to the concept of equality of the sexes and with increasingly economic independence of women, alimony can now be sought by either spouse, depending on the particular financial condition of each. Some of the factors which determine whether alimony is to be paid, how much and for how long are:

• Current financial support. Alimony is generally not granted by the court to the seeking party if the latter is already receiving financial support, during the time of the divorce.
• Duration of marriage. The quantum and duration of alimony depends on how long the couple had been married before filing for divorce. Spouses who have been married for more than ten years, for instance, may be granted lifelong alimony.
• Age of the recipient. Often the alimony granted to a younger spouse is for a shorter tenure, if the court thinks that the recipient can eventually become financially sound, with career advancement.
• Financial position of either spouse. If the divorce takes place between two parties with unequal resources, the higher-earning spouse is generally asked to pay a substantial amount as alimony, in order to equalize the financial condition of the spouses. Similarly, a spouse with very profitable financial prospects is usually asked to cough up the alimony amount.
• Health of spouse. If the seeker is in poor health, the court usually orders the other spouse to pay a high alimony to take care of the former’s healthcare expenses.
• Respective marriage laws. The terms and conditions of alimony, also vary from one personal law to another. Thus, whether and how much alimony the seeker will be granted, will depend upon the laws according to which he/she got married.
• Maintenance by public body. In exceptional conditions, the court can direct that the seeker be paid maintenance after divorce, by a public body. 
• While in the Western countries, alimony is an obligation ordered by the court to the financially stronger spouse, in India it is not yet an absolute right of the seeker. Rather the awarding of alimony, its amount and duration are determined by the financial position and family circumstances of the respective spouses. 
• Child custody. Another aspect of divorce which leads to a great deal of emotional trauma and legal complication, is child custody. This is because divorce entails the breakdown of the entire family. The child is not only separated from one of the parents, but may also lose other siblings and the wider extended family. The Hindu Marriage Act 1955, has exhaustive laws related to child custody and child support. If the child is below five years, the custody is unanimously awarded to the mother. In case of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father. Visitation right is an important aspect of child custody, which specifies how frequently of the estranged parent can meet his/her children.
• Child support is intricately linked to child custody, since it is most practical for the parent taking care of the child, to receive financial support for bringing up the child. In an overwhelming majority of divorce cases, it is the mother who is entitled to child support, since she is the primary caretaker of the child or children post-divorce. However, like alimony rights, child custody and support are also of subject to respective marriage laws of the estranged couple. In case of divorce by mutual consent, the parents should to take the help of a lawyer in order to thrash out the details of child custody and child support. In cases of contested divorce, on the other hand, the receiving parent is best advised to make a strong claim for child support, under the guidance of her lawyer. Finally, it is up to the court to specify the amount and duration of child support, where the divorce is being contested.

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498A Indian Penal Code (IPC): Men’s Tale

498A, the alpha-numeric word, has a tendency to create a shivering and catastrophic effect in the life of numerous husband and their relatives.

498A was inserted in the IPC by way of Amendment Act-1983, with a social aim to protect the women from the demand of dowry and consequent cruelty exercised with in the vicinity of matrimonial home. Object of law was social and pious and aimed to bring the equilibrium in the society and to arrest the growth of the menace of dowry which plagued the Indian Society for decades and decades. Intention of the legislature was salutary .However, the way it is implemented speaks altogether a different story especially in metros.

498A was introduced in the Criminal Law in the year 1983. And the same era and consequent years also witnesses the women empowerment. They have started joining the mainstream by entering in to all kind of vocations, profession, service, etc. Women started assuming more proactive role in the society and vociferously demanding more and more space in the social set-up.
In the initial year of passing of 498A, it was used with caution and care by the women and the protection of the interest and dignity of the family was always the prime concern. It will not be out of place to mention that women maintained cacophonous silence despite being the victim of dowry demands and consequent cruelty.

However, time has taken a ‘U’ turn. It has become a joke in the society that women first understand the basics ofmatrimonial law which of course and naturally means and includes 498A and then she might learn the other basic and traditional matrimonial obligation. Trend may be disturbing but a harsh reality of the present Indian Society.Law is now being (mis) used at will and with impunity . 498A has travelled a journey from the protector of women against cruelty in regard to the demand of the dowry to the tool in the hand of women to bargain for huge cash and‘Quick Rich Scheme’ from the husband.

Law is being invoked for every single act. If husband is not succumbing to the unreasonable demand of wife then he should be ready to face the wrath of 498A. An interesting scenario occurs when a man approach to a matrimonial lawyer(Divorce Lawyer) and speaks about the fact that his wife has left her for all illogical reasons and rationale and is not coming back to home. Law provided remedy to the husband to file a suit for Restitution of Conjugal right. Now, it requires courage to file a case of Restitution of Conjugal Right(RCR) against your wife to return back for the ostensible reason that the husband must be ready to face the ignominy of 498A. Husband first received the warrant from the Court and then if wife chooses, she files a reply to the RCR petition. He could face the bar for the offence of solemnising the marriage. His misery do not stop here rather it begins from there. His old father and ailing mother faces the threat of imprisonment for the fault that they got their son married. No… misery further adds….. when the married sister of the husband is implicated as party when as a matter of fact she is residing some about 400 Kms from the matrimonial home of the wife. It further aggravates when 14 year old sister and brother of husband has to apply for anticipatory bail just because of the fact that they want to have their ‘bhabhi’. Had Supreme Court not intervened at the right time, friends would also have been included with in the ambit of ‘relative’ in the definition of 498A.

In Delhi, Crime Against Women Cell(CAW) was created with the object and aim to provide conciliation between the husband and wife. However, the forum has been misused by women folks and every word of the complaint is generally consider as gospel truth. 30 lacs dowry by lower middle class girl to the husband was accepted with looking in to the source of such huge finance by poor father of the girl. It belies common sense.

Today in the court, 498A has become a tool to ask for cash. Court has become the place to bargain for the good amount. Husband has to meet the conditions imposed by the Court if he wants to secure bail for himself and family member.

Glaring example of misuse of 498A is the warning sign in USA State Department under the heading “DOWRY/VISA DEMAND” about traveling to India for marriages.

It is estimated by a survey that out of every six family, one would be caught in the quagmire of 498A by the year 2010. We are progressing fast. We do not need to eradicate dowry system from the social set-up. Eradicate husband, there will be no dowry.

Today, ask any woman, what is easy, ordering a pizza, ticket booking or FIR under section 498A. Your guess is as good as mine.

Now adding to more teeth to the already brutal 498A, there is new law commonly called as Dom


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Procedure for Filing for Divorce in India

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconciliable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an enquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties.
However, not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce. Some of the grounds on which either spouse can file for a divorce in India are:

• Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage.
• Willful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce.
• Infliction of physical and/or mental torture on the petitioner by the spouse, which may result in danger to life and health of the former.
• Sexual impotency or inability to perform sexual intercourse by the spouse of the petitioner.
• Insanity or suffering from incurable disease by the spouse of the petitioner.

The actual process of filing for divorce, however, begins with the hiring of a lawyer. The importance of having an efficient lawyer cannot be over-emphasized, if one is to get through the complexities of the legal system in India. So whether a person is filing for divorce or contesting one, he/she should see that the lawyer is not only well-versed with laws related to marriage and divorce under the relevant marriage act, but also has adequate experience in guiding his/her client to the best possible divorce deal from the court.
After the petitioner and his/her lawyer have decided on which grounds to file for divorce, a divorce petition is formally drafted and filed in the relevant court. The petitioner is required to provide his/her legal representative with photocopies of the following documents:

• Income tax statements for the last 2-3 years
• Details of the petitioner’s profession and present remuneration
• Information related to family background of the petitioner
• Details of properties and other assets owned by the petitioner

Here it may be mentioned that it is in the interest of the petitioner, to provide all details of his/her marriage to the lawyer. This will not only include facts related to when and where the petitioner and spouse got married, but also details on how problems cropped up in their marriage and the events that finally led to the petitioner seeking divorce. The more honest the petitioner is with the lawyer, the easier it will be for the latter to present a strong case for his/her client.
After the first petition for divorce has been filed, the petitioner can sign a “vakalatnama” is which a document giving the lawyer the authority to represent the petitioner in court. After the petition has been received by the court, it will send a notice and a copy of the petition to the estranged spouse of the petitioner, asking him/her to appear before the court on a specified date. From here on, the legal process of seeking a contested divorce will take its own course.

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The Guide to Getting a Divorce in India by Mutual Consent

India used to have one of the lowest divorce rates in the world. Being a society largely based on a traditional value system, couples were both legally and socially dissuaded from seeking a divorce. However, socio-economic changes complemented by legal reforms in the last half a century, have enabled partners, especially women, to opt out of unequal and abusive marriages.

The wave of globalization in the nineties ushered in further changes in the Indian social institutions, especially in urban areas. Couples living and working in cities and metros, were exposed to more economic and relationship options, which prompted them to break out of unsatisfactory or unequal marriages. However, the divorce procedure in India continues to be one of the most protracted in the world, especially in cases where either party contests the divorce. Following, is a brief guide to the procedure of filing a divorce, as well as associated matters like child custody, alimony demands and divorcing a non-resident Indian.

Divorce under various acts
Divorce is the legal dissolution of marriage. Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The Muslim, Christian and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communities and castes can seek divorce under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in marriages where either partner belongs to another nationality.

Divorce by Mutual Consent
Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

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