The Jurisdiction of a Family Court

Head (g) brings in the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956, which is why custody is decided in the same forum as divorce.

Head (f) is wide enough to cover maintenance under every statute: the Hindu Adoptions and Maintenance Act, the Hindu Marriage Act, and the Maintenance and Welfare of Parents and Senior Citizens Act, subject to the special tribunal that last Act creates.

Section 7(2): the criminal jurisdiction

Subject to the other provisions of the Act, a Family Court shall also have and exercise:

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure 1973, relating to an order for maintenance of wife, children and parents; and

(b) such other jurisdiction as may be conferred on it by any other enactment.

This is the striking feature of the Act and it should be stated plainly: a Family Court exercises both civil and criminal jurisdiction. Chapter IX of the Code of Criminal Procedure is the summary maintenance remedy, and it is heard by the same judge who hears the divorce petition.

The reason is practical. A wife seeking maintenance would otherwise be in a Magistrate's court under the criminal code while her husband's divorce petition ran in a civil court, with two judges deciding overlapping questions about the same income and the same conduct. Section 7(2) puts both in one place.

The Code of Criminal Procedure 1973 has been replaced by the Bharatiya Nagarik Suraksha Sanhita 2023. Section 7(2)(a) still refers to Chapter IX of the 1973 Code, and this book does not state the corresponding chapter or section number of the new Sanhita, because that Sanhita has not been read for this subject. The substance is the summary maintenance jurisdiction, and that is what to write.

Section 8: exclusion of jurisdiction, and transfer

Where a Family Court has been established for any area:

(a) no district court or subordinate civil court referred to in section 7(1) shall, in relation to that area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature in the Explanation;

(b) no Magistrate shall, in relation to that area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure 1973; and

(c) every suit or proceeding of the nature in the Explanation, and every proceeding under Chapter IX of that Code, which was pending immediately before the establishment of the Family Court before any such district court, subordinate court or Magistrate, and which would have had to be instituted before the Family Court had the Act been in force and the Court established at the time, shall stand transferred to the Family Court on the date on which it is established.

What section 8 achieves

Exclusivity. Clauses (a) and (b) make the Family Court's jurisdiction exclusive, not concurrent. There is no election. Where a Family Court exists, a matrimonial suit filed in the district court is filed in a court without jurisdiction.

Automatic transfer. Clause (c) moves every pending case across by operation of law on the date the Court is established. No application, no order, no transfer petition.

And it explains the limit. Because section 3 makes a Family Court compulsory only in a city or town of more than a million, section 8 operates only where one has actually been established. Everywhere else the district court and the Magistrate keep their jurisdiction. So the answer to "which court hears a divorce petition" is: the Family Court if there is one for that area, and the district court if there is not.

The three jurisdictions in one place

A worked example

In a city with a Family Court, Neeta wants a divorce, a declaration that her marriage to her first husband was void, the return of jewellery held by her husband, an injunction against his interfering with her at work, a declaration of her son's legitimacy, maintenance, and custody. She also has a maintenance application pending before a Magistrate and a matrimonial suit pending in the district court.

Which of her claims can the Family Court try? All of them. Section 7(1)(a) with the Explanation gives it the jurisdiction of a district court or a subordinate civil court over: (a) a suit or proceeding between the parties to a marriage for a decree of nullity, restitution, judicial separation or dissolution; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; and (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

How do the matrimonial statutes work in it? Section 7(1)(b): the Family Court shall be deemed to be a district court or subordinate civil court for the purposes of any law, so the Hindu Marriage Act and the rest apply unamended.

And the maintenance application? Section 7(2)(a): the Family Court shall also have the jurisdiction exercisable by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, that is the summary order for maintenance of wives, children and parents.

So one judge hears both? Yes, and that is the point of the section.

What happens to the pending cases? Section 8: where a Family Court is established, the district court and every subordinate civil court cease to have jurisdiction in respect of the suits and proceedings in section 7(1), and no Magistrate has jurisdiction under Chapter IX for that area; and every such suit or proceeding pending on that date stands transferred to the Family Court.

What it does NOT mean

A Family Court is not a court of general civil jurisdiction. Its jurisdiction is the seven classes in the Explanation to section 7(1).

It does not exercise a jurisdiction of its own invention. It exercises the jurisdiction of a district court or subordinate civil court and is deemed to be one.

Its criminal jurisdiction is not general either. It is the Chapter IX summary maintenance jurisdiction of a first class Magistrate.

Its jurisdiction is not concurrent. Section 8 makes it exclusive and ousts the district court, the subordinate civil courts and the Magistrate for that area.

Pending cases are not left where they are. They stand transferred on the day the Family Court is established.

Property jurisdiction is not general. It is the property of the parties to a marriage or of either of them.

Quick revision

• s.7(1)(a) with the Explanation, seven classes: (a) nullity, restitution, judicial separation, dissolution; (b) a declaration as to the validity of a marriage or matrimonial status; (c) the property of the parties to a marriage or either of them; (d) an order or injunction in circumstances arising out of a marital relationship; (e) legitimacy; (f) maintenance; (g) guardianship of the person, custody of or access to a minor.
• s.7(1)(b): the Family Court is deemed to be a district court or subordinate civil court, so every matrimonial statute applies unamended.
• s.7(2)(a): it also has the jurisdiction of a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, the summary maintenance order; s.7(2)(b), such other jurisdiction as may be conferred.
• s.8: the jurisdiction is exclusive; the district court and subordinate civil courts and the Magistrate cease to have jurisdiction for that area; and every pending suit or proceeding stands transferred on the day the Family Court is established.

Test yourself

1. What matters may a Family Court try? Suits and proceedings between parties to a marriage for a decree of nullity, restitution of conjugal rights, judicial separation or dissolution of marriage; for a declaration as to the validity of a marriage or as to the matrimonial status of any person; with respect to the property of the parties or of either of them; for an order or injunction in circumstances arising out of a marital relationship; for a declaration as to the legitimacy of any person; for maintenance; and in relation to the guardianship of the person or the custody of, or access to, any minor.

2. What is the effect of section 7(1)(b)? The Family Court is deemed for the purposes of exercising that jurisdiction to be a district court or, as the case may be, a subordinate civil court for the area to which its jurisdiction extends, so that the matrimonial statutes operate in it without amendment.

3. Has a Family Court any criminal jurisdiction? Yes. By section 7(2)(a) it has and exercises the jurisdiction exercisable by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, which is the summary order for maintenance of wives, children and parents.

4. What happens to cases pending when a Family Court is established? By section 8 the district court and every subordinate civil court cease to have jurisdiction in respect of the suits and proceedings in section 7(1), and no Magistrate exercises the Chapter IX jurisdiction for that area; every such suit or proceeding pending immediately before that date stands transferred to the Family Court.