The Family Courts Act: Object, Establishment and Judges
Chapter Thirty-Five
Syllabus topic 1.8, "Establishment of family Courts, Family Courts Act, 1984: Constitution, power and functions; Administration of gender justice"
Pages 216 to 220 of 477
In one line
A separate court for family disputes, staffed by judges chosen for their commitment to marriage and to children and with a preference for women, whose first duty is to settle rather than to decide.
The object of the Act
The long title states it: an Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.
Take the three ideas out of that sentence, because they are the answer to the question MU asks every year.
Conciliation. The court exists to bring parties to agreement, not primarily to adjudicate between them. That is why section 9 imposes a duty to make efforts at settlement, why counsellors are provided by section 6, and why section 13 restricts the right to be represented by a lawyer.
Speedy settlement. Ordinary civil courts were slow and matrimonial disputes were being decided years after they mattered.
A specialised forum. Family disputes were being heard by judges with no particular training or interest in them, in the same list as suits about money and land.
To those three a fourth is usually added, and section 4(4)(b) supports it: the Act was meant to make the forum more accessible and less hostile to women, which is what MU's topic label means by the administration of gender justice.
Section 3: establishment
Section 3(1) provides that for the purpose of exercising the jurisdiction and powers conferred by the Act, the State Government, after consultation with the High Court, and by notification:
(a) shall, as soon as may be after the commencement of the Act, establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court; and
(b) may establish Family Courts for such other areas as it deems necessary.
Section 3(2) requires the State Government, after consultation with the High Court, to specify by notification the local limits of a Family Court's jurisdiction, and permits it at any time to increase, reduce or alter those limits.
Three details worth having.
The obligation is mandatory only above a million. Clause (a) says "shall" for a city or town of more than one million; clause (b) says "may" everywhere else. So a person in a small town may have no Family Court, and the ordinary district court then exercises the jurisdiction.
The High Court must be consulted both for establishment and for fixing limits. The Act keeps the judiciary in the decision.
The threshold is population, not caseload, which is a blunt criterion and is a fair thing to criticise in an essay.
The Family Courts Act: Object, Establishment and Judges
Section 4: the judges
Section 4(1). The State Government may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of a Family Court.
Note the change of language from section 3. There the High Court is consulted; here its concurrence is required. Appointment is a stronger safeguard than establishment.
Section 4(2) deals with a court of more than one Judge. Each Judge may exercise all or any of the powers conferred on the Court. The State Government may, with the concurrence of the High Court, appoint one Judge to be the Principal Judge and another to be the Additional Principal Judge. The Principal Judge may make arrangements for the distribution of business among the Judges. The Additional Principal Judge may exercise the powers of the Principal Judge in the event of a vacancy, or where the Principal Judge is unable to discharge his functions owing to absence, illness or any other cause.
Section 4(3): qualifications. A person is not qualified for appointment unless he:
(a) has for at least seven years held a judicial office in India, or the office of a Member of a Tribunal, or any post under the Union or a State requiring special knowledge of law; or
(b) has for at least seven years been an advocate of a High Court, or of two or more such Courts in succession; or
(c) possesses such other qualifications as the Central Government may, with the concurrence of the Chief Justice of India, prescribe.
Section 4(4): how they are selected. This is the sub-section to quote, and it is short.
(a) Every endeavour shall be made to ensure that persons are selected who are committed to the need to protect and preserve the institution of marriage and to promote the welfare of children, and who are qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling.
(b) Preference shall be given to women.
Section 4(5). No person shall be appointed as, or hold the office of, a Judge of a Family Court after attaining the age of sixty-two years.
Section 4(6). Salary or honorarium, allowances and other terms and conditions of service are as the State Government, in consultation with the High Court, prescribes.
Why section 4(4) matters
It is unusual for a statute to legislate about the disposition of a judge rather than only about qualifications, and this one does it twice.
Clause (a) tells the appointing authority to look for someone committed to preserving marriage and promoting the welfare of children, and skilled at conciliation. That is a statement of what the court is for, put into the appointment process. It also carries an obvious tension worth naming in an essay: a judge committed to preserving the institution of marriage is being asked to decide petitions whose purpose is to end particular marriages, and a judge who leans too far towards preservation may press a woman to stay in one she wants to leave.
The Family Courts Act: Object, Establishment and Judges
Clause (b) is the clearest gender justice provision in the Act, and it is what MU's topic label is pointing at. Preference is to be given to women in appointment as Family Court judges.
Section 5: association of social welfare agencies
The State Government may, in consultation with the High Court, provide by rules for the association with a Family Court of:
(a) institutions or organisations engaged in social welfare, or their representatives; (b) persons professionally engaged in promoting the welfare of the family; (c) persons working in the field of social welfare; and (d) any other person whose association would enable the Court to exercise its jurisdiction more effectively in accordance with the purposes of the Act.
This is the same instinct as section 10 of the Domestic Violence Act, which brings registered women's organisations inside that statute. Parliament recognised that a court cannot conciliate a family dispute out of its own resources.
Section 6: counsellors and staff
Section 6(1) requires the State Government, in consultation with the High Court, to determine the number and categories of counsellors, officers and other employees required to assist a Family Court, and to provide the Court with them.
Section 6(2) leaves their terms and conditions to rules made by the State Government.
The counsellor is the office that makes the Act's conciliation policy real, in the same way that the Protection Officer makes the Domestic Violence Act real. A duty to attempt settlement, imposed on a judge with no counsellor, would come to nothing.
A worked example
A city in Maharashtra has grown past a million people. A State Government wants to know what it must do, and who may be appointed.
Must it establish a Family Court? Yes. Section 3(1)(a): the State Government shall, after consultation with the High Court and by notification, establish a Family Court for every area in the State comprising a city or town whose population exceeds one million. By section 3(1)(b) it may establish one for any other area it considers necessary.
And the limits? Section 3(2): the State Government shall, after consultation with the High Court, specify the local limits of the area to which the jurisdiction of a Family Court extends, and may increase, reduce or alter them.
Who appoints the judges? Section 4(1): the State Government, with the concurrence of the High Court, appoints one or more persons as the Judge or Judges of a Family Court; and where there is more than one, one may be appointed Principal Judge and another Additional Principal Judge.
The Family Courts Act: Object, Establishment and Judges
What are the qualifications? Section 4(3): seven years as a judicial officer in India, or as a member of a tribunal or in a post requiring special knowledge of law; or seven years as an advocate of a High Court; or such other qualifications as the Central Government, with the concurrence of the Chief Justice of India, prescribes.
Is anything else looked for? Section 4(4): in selecting persons, every endeavour shall be made to secure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children, and qualified by reason of their experience and expertise to promote settlement by conciliation and counselling, are selected; and preference shall be given to women.
Until what age? Section 4(5): a Judge holds office until he attains sixty-two years.
Who else works there? Section 5: the State Government may, in consultation with the High Court, provide by rules for the association of social welfare agencies, institutions and persons professionally engaged in promoting the welfare of the family with the Family Court. Section 6: the State Government shall, in consultation with the High Court, determine the number and categories of counsellors, officers and other employees.
What it does NOT mean
A Family Court is not optional everywhere. It is compulsory for a city or town of more than one million, and optional elsewhere.
The State Government does not act alone. It must consult the High Court for establishment and for the local limits, and appointments need the High Court's concurrence.
Seven years' experience is not the only route. The Central Government, with the concurrence of the Chief Justice of India, may prescribe other qualifications.
Section 4(4) is not a rule of appointment. It requires that "every endeavour shall be made", and it gives preference to women rather than reserving posts.
The retirement age is not sixty. It is sixty-two.
Social welfare agencies are not part of the court. They are associated with it by rules.
Quick revision
- The object, from the long title and the Statement of Objects: to promote conciliation and secure the speedy settlement of disputes relating to marriage and family affairs, in a specialised forum.
- s.3: the State Government shall, after consulting the High Court, establish a Family Court for every area comprising a city or town with a population exceeding one million, and may for any other area; and shall specify and may alter the local limits.
- s.4: Judges are appointed by the State Government with the concurrence of the High Court; a Principal Judge and an Additional Principal Judge may be appointed; the qualification is seven years as a judicial officer, a tribunal member, a holder of a post requiring special legal knowledge, or an advocate of a High Court, or such other qualification as the Central Government with the Chief Justice of India prescribes; every endeavour is to be made to select persons committed to preserving marriage and to the welfare of children and able to promote settlement, with preference to women; and the age of retirement is sixty-two.
- s.5: association of social welfare agencies by rules. s.6: counsellors, officers and employees determined by the State Government in consultation with the High Court.
The Family Courts Act: Object, Establishment and Judges
Test yourself
1. What is the object of the Family Courts Act 1984? To provide for the establishment of Family Courts with a view to promoting conciliation in, and securing the speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.
2. Where must a Family Court be established? For every area in a State comprising a city or town whose population exceeds one million, the State Government shall establish one after consultation with the High Court; and it may establish one for such other areas as it may deem necessary.
3. What are the qualifications for appointment as a judge of a Family Court? Seven years' service as a judicial officer in India, or as a member of a tribunal, or in a post under the Union or a State requiring special knowledge of law; or seven years' standing as an advocate of a High Court or of two or more such courts in succession; or such other qualifications as the Central Government may, with the concurrence of the Chief Justice of India, prescribe. A judge holds office until he attains sixty-two years.
4. What does the Act say about the selection of judges? That every endeavour shall be made to secure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children, and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling, are selected; and that preference shall be given to women.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.