Judgment, Appeal, and the Administration of Gender Justice

Sub-section (3). Every appeal shall be preferred within thirty days from the date of the judgment or order.

Sub-section (4). The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which a Family Court within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of the proceeding.

Sub-section (5). Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

How the 1991 amendment changed things

Before 1991, an appeal lay from every non-interlocutory order including a maintenance order under Chapter IX. The amendment took maintenance orders out of the appeal and replaced the remedy with the revisional power in sub-section (4).

The difference is one of scope. An appeal under sub-section (1) lies on facts and on law and is a rehearing. A revision under sub-section (4) is confined to the correctness, legality or propriety of the order and the regularity of the proceeding, and the High Court may take it up of its own motion.

The purpose was to stop a maintenance order, which is meant to be summary and immediate, being tied up in a full appeal while the wife and children went unpaid.

The features of section 19 to state

One appeal only, and to the High Court. Sub-section (5) shuts out every other appeal or revision.

Both on facts and on law. That is unusual and generous, and it reflects that the Family Court's own procedure is relaxed.

Not from an interlocutory order. So interim maintenance, interim custody and adjournments are not appealable.

Not from a consent decree. A settlement the parties agreed to cannot be appealed, which follows from the Act's whole purpose of promoting settlement.

Thirty days, from the date of the judgment or order.

Sections 20 to 23: overriding effect and rules

Section 20. The provisions of the Act have effect notwithstanding anything inconsistent contained in any other law in force, or in any instrument having effect by virtue of any law other than this Act. That is what makes the exclusion of jurisdiction in section 8, and the relaxations in sections 13 and 14, operate against the general law.

Section 21. The High Court may by notification make rules for carrying out the purposes of the Act, and in particular for:

(a) the normal working hours of Family Courts, and the holding of sittings on holidays and outside normal working hours; (b) the holding of sittings at places other than their ordinary places of sitting; and (c) the efforts which may be made, and the procedure which may be followed, by a Family Court for assisting and persuading parties to arrive at a settlement.

Clauses (a) and (b) are small and humane. A court that may sit on a holiday, in the evening, or somewhere other than a courthouse is a court a working woman can actually reach.

Section 22. The Central Government, with the concurrence of the Chief Justice of India, may make rules prescribing the other qualifications for appointment of a Judge under section 4(3)(c); and every such rule must be laid before each House of Parliament for thirty days, with the usual power of modification or annulment.

Section 23. The State Government, after consultation with the High Court, may by notification make rules for carrying out the purposes of the Act.

Note how the rule-making is divided, because it reflects the whole architecture of the Act. The High Court makes rules about how the court works; the Central Government with the Chief Justice of India makes rules about who may be a judge; the State Government makes rules about everything else.

The administration of gender justice

MU prints this as a topic and expects it answered, not gestured at. The honest answer has three parts.

What the Act does for women, provision by provision

Section 4(4)(b): preference shall be given to women in appointment as Family Court judges. This is the strongest statement of the policy in the Act.

Section 4(4)(a): judges are to be selected for commitment to the welfare of children and skill in conciliation, which is a departure from the ordinary criteria for judicial appointment.

Section 12: the expert whose services the court secures is to be preferably a woman where available.

Section 6: counsellors must be provided, so that a woman who cannot articulate her case in a courtroom has somebody to help her.

Section 13: by removing the entitlement to a lawyer, the Act was meant to stop the better-resourced party, usually the husband, buying an advantage.

Section 7(2): by bringing summary maintenance into the same court, a wife need not litigate in two forums about the same income.

Section 11: proceedings are in camera at either party's option, which in practice means at hers.

Section 21(a) and (b): sittings outside normal hours and away from the ordinary place of sitting, which is a provision about access.

What the Act does not do

It creates no substantive right. The Family Courts Act is procedural throughout. A woman's rights on divorce, maintenance, custody and property are exactly what the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act and the general law give her. A better forum for a poor right is still a poor right, and the gap in matrimonial property described in [Maintenance Pendente Lite, Permanent Alimony, Custody and Property] is untouched by this Act.

The duty to conciliate can work against her. Section 9 requires the court to attempt settlement in the first instance in every case, and section 4(4)(a) directs that judges be chosen for commitment to preserving the institution of marriage. Applied without care, that combination presses a woman who wants to leave into staying, and the adjournment power in section 9(2) has no time limit at all.

Section 13 cuts both ways. It was meant to protect the party with less money. Where one side is in fact allowed representation and the other is not, or where the husband is himself a lawyer, it protects nobody.

Coverage is incomplete. Section 3 makes a Family Court compulsory only in a city or town of more than a million. A woman outside such an area gets none of the above.

How to write the answer

State the object from the long title. Set out the provisions above as the Act's answer to it. Then give the three criticisms: no substantive rights, conciliation that can be turned against the person it was meant to protect, and coverage limited by population rather than need. That structure gives a complete answer to a topic MU prints as one line.

A worked example

A Family Court passes a decree of divorce, refuses an interim application, records a consent decree in another case, and makes a maintenance order under Chapter IX. Four parties want to go to the High Court.

What must the judgment contain? Section 17: a concise statement of the case, the point for determination, the decision thereon, and the reasons for the decision.

How is a decree executed? Section 18: a decree or order of a Family Court has the same force and effect as a decree or order of a civil court and is executed in the same manner; but an order for maintenance under Chapter IX is executed in the manner prescribed by the Code of Criminal Procedure. And by section 18(3) it may be executed by the Family Court that made it, or by any other Family Court or ordinary civil court to which it is sent.

The divorce decree. Section 19(1): an appeal shall lie to the High Court from every judgment or order of a Family Court, both on facts and on law, and by section 19(3) within thirty days of the judgment or order.

The refusal of the interim application. No appeal. Section 19(1) proviso excludes an interlocutory order.

The consent decree. No appeal. It is excluded by the same proviso.

The maintenance order under Chapter IX. No appeal either. The 1991 amendment excluded it, and by section 19(4) the High Court may of its own motion call for and examine the record for the purpose of satisfying itself as to the correctness, legality or propriety of such an order.

Who hears the appeal? Section 19(5): a Bench consisting of two or more Judges.

And nothing else? Section 19(6): no appeal or revision lies to any court from any judgment, order or decree of a Family Court except as provided in the section.

What of the rest? Section 20: the Act has effect notwithstanding anything inconsistent in any other law. Sections 21 to 23: the High Court makes rules as to working hours, sittings and conciliation; the Central Government with the Chief Justice of India prescribes further qualifications for judges; and the State Government makes the remaining rules.

What it does NOT mean

A judgment is not a full civil judgment. Section 17 requires it to be concise, though it must still give reasons.

Execution is not always civil. A Chapter IX maintenance order is executed by the criminal process.

An appeal is not available against everything. Not against an interlocutory order, not against a consent decree, and not against a Chapter IX maintenance order.

The absence of an appeal on maintenance is not the absence of a remedy. Section 19(4) gives the High Court a suo motu revision.

Thirty days is not counted from knowledge. It runs from the judgment or order.

Gender justice under the Act is not a substantive right. It is a set of arrangements: preference for women judges, a woman expert where available, counsellors, one forum for maintenance, in camera hearings, and accessible sittings.

Quick revision

• s.17: the judgment shall contain a concise statement of the case, the point for determination, the decision and the reasons.
• s.18: a decree or order has the force of a civil decree and is executed accordingly; a Chapter IX maintenance order is executed as the Code of Criminal Procedure provides; and it may be executed by the Family Court that made it or by any other Family Court or ordinary civil court to which it is sent.
• s.19: appeal to the High Court on facts and law, within thirty days, heard by a Bench of two or more Judges; no appeal from an interlocutory order, from a consent decree, or from a Chapter IX maintenance order, the last excluded by the 1991 amendment, for which s.19(4) gives the High Court a suo motu revision as to correctness, legality or propriety; and by s.19(6) no other appeal or revision lies.
• s.20: the Act has overriding effect. s.21: High Court rules as to working hours, sittings and conciliation. s.22: the Central Government, with the Chief Justice of India, prescribes further qualifications. s.23: State Government rules.
• Gender justice in the Act: preference for women judges under s.4(4); a woman expert under s.12 where available; counsellors under s.6; one forum for civil and summary maintenance under s.7; in camera at either party's option under s.11; and rules about accessible sittings.

Test yourself

1. What must the judgment of a Family Court contain? A concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.

2. How are its decrees and orders executed? A decree or order has the same force and effect as a decree or order of a civil court and is executed in the same manner, except that an order for maintenance under Chapter IX of the Code of Criminal Procedure is executed in the manner prescribed by that Code. It may be executed by the Family Court that passed it or by any other Family Court or ordinary civil court to which it is sent.

3. From what orders does no appeal lie? From an interlocutory order; from a decree or order passed with the consent of the parties; and, since the amendment of 1991, from an order under Chapter IX of the Code of Criminal Procedure, in respect of which the High Court may call for the record of its own motion to satisfy itself as to the correctness, legality or propriety of the order.

4. What does the Act do for gender justice? It requires preference to be given to women in the selection of judges; allows the court to secure the services of an expert, preferably a woman, engaged in promoting family welfare; provides counsellors; brings the civil and the summary maintenance jurisdictions into one forum so a woman need not go to two courts; makes proceedings in camera at either party's option; and allows rules about the hours and places of sitting so that the court is accessible.