Context

Recently, the Lok Sabha passed the Family Courts (Amendment) Bill, 2022 which seeks to amend the Family Courts Act, 1984 to establish family courts in Himachal Pradesh and Nagaland.

Background

• In 1984, the Family Courts Act was passed and it came into force on September 14, 1984. It was enacted for the establishment of Family Courts with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and related matters.
• Objective: To take family and marital disputes away from the overcrowded intimidating and congested environment of traditional courts of law and bring them to congenial and sympathetic surroundings.
  • The aim was ‘conciliation’ between the estranged family members and not ‘confrontation’.

How do the Family Courts come into existence?

• The need for a non-adversarial method of resolving family disputes and promoting conciliation and securing speedy settlement of disputes relating to marriage and family affairs was coming from several women associations, welfare organizations, and individuals.
• The need was, therefore, felt in the public interest to establish family courts for speedy settlement of family disputes.
• As a result of political mandate and on the recommendation of the Law Commission in its 59^th report (1974) which also recommended for setting up of special courts where rules of procedure would be simpler to deal with family matters.
• In India first and foremost the family court was established in the state of Rajasthan on 19 November 1985.

Salient features of Family Courts Act, 1984:

• To make it obligatory for the state to establish Family courts.
• To make mandatory conciliation proceedings in Family courts.
• To provide social and medical assistance to assist the Parties to settle their disputes by conciliation.
• To provide jurisdiction to the family courts on the nullity of Marriage, divorce, judicial separation, restitution of Conjugal rights, the validity of marriage, property disputes between members of the family, legitimacy of the child, Guardianship, custody of children and maintenance, etc.
• The environment of family courts is expected to be different from regular courts. The atmosphere is supposed to be quite informal and relaxed. And the judges need not put on robes and judges need not set on the raised platform.
• Two main pillars of family courts are Counseling and Conciliation.

Jurisdiction of the Family Court Act 1984: A suit or proceeding for the decree of nullity of marriage, or restitution of conjugal rights, or for the dissolution of the marriage between the parties; A suit or proceeding for determining the validity of a marriage or matrimonial status of a person; A suit or proceeding in the matter related to the properties between the parties to a marriage; A suit or proceeding for an injunction or order arising out of a marriage; A suit or proceeding for declaring the legitimacy of a person; A suit or proceeding for maintenance; A suit or proceeding for the guardianship of the person, or custody of any minor.

About Family Courts (Amendment) Bill:

• It seeks to provide for the establishment of Family Courts in the State of Himachal Pradesh with effect from the 15th of February, 2019, and in the State of Nagaland with effect from the 12th of September, 2008.
• It also seeks to insert a new Section 3A to retrospectively validate all actions under the said Act taken by the State Government of Himachal Pradesh and Nagaland and the Family Courts of those states before the commencement of the Family Courts (Amendment) Act, 2022.
• According to the bill, all orders of appointment of a family court judge, and the posting, promotion, or transfer of such a judge under the Act will also be valid in the two States.

Need for an amendment and why does it only concern two States:

• There are 715 Family Courts that are established and functioning in 26 States and Union territories, including three Family Courts in the State of Himachal Pradesh and two-Family Courts in the State of Nagaland.
• The issue of lack of jurisdiction of Family Courts in the State of Himachal Pradesh has been challenged before the High Court of Himachal Pradesh.
• A petition filed in the Himachal Pradesh High Court (Omkar Sharma vs. State of Himachal Pradesh) contended that family courts in the state of Himachal Pradesh and Nagaland were functioning without jurisdiction.
• The Central Government had not issued any notification to bring into force the provisions of the Act in the State to date.
• In the absence of any notification, anything done or any action taken under the said Act appears to be void ab initio (Having no legal effect from inception).
• Since there was no provision in the Act for the Centre to notify the establishment of family courts, the Union Law Ministry brought The Family Courts (Amendment) Bill, 2022.

Changes Proposed:

• New Section 3A: This addition will extend the application of the Act to Himachal Pradesh and Nagaland, with effect from the dates the family courts were set up.
• Under Section 3A, all actions taken, appointments made, and notifications issued under the Act in Himachal Pradesh and Nagaland before the commencement of the Family Courts (Amendment) Act, 2022 will be deemed valid.
• The document also says that all orders of appointment of a family court judge, and the posting, promotion, or transfer of such a judge under the Act will also be valid in the two States.

Conclusion

Lack of uniformity regarding the rules laid down by different states also leads to vagueness in the proper application of the Act. Though the Act was aimed at removing the gender biases in Statuary legislation. The goal is yet to be achieved. The family courts need to adopt various dynamic steps for the smooth and proper functioning of the family court, especially when the pending court cases, are touching new heights.