Development Of Family Law And Family Courts In India
Author: Prerna Mayea
Designation: 3rd Year student, Institute of Law, Nirma University
In ancient times ‘family’ included a man, his wife, offsprings, and a servant. However, today Article 16 of the UDHR defines ‘family’ as a natural and fundamental unit of society that is entitled to protection by society and the State. A more comprehensive definition is provided in Order 32A Rule 6 of CPC which includes not only husband, wife, and their children, but also children maintained by them. It further includes spouses who are not living together. Such inclusive definition has aided in the provision of rights for all family members.
Various personal, propriety, religious and cultural rights, and obligations arising out of a family, and therefore family courts were required to regulate them. Family is considered a basic unit of society and family law was greatly influenced by religion. The courts referred to various personal laws of different religions to interpret the rights. Since manusmriti was very regressive for women, with an aim to codify and reform Hindu personal law in India, the Hindu Code Bill was also introduced. However, the codified personal laws also lacked uniformity. For example, amongst the 2 schools governing property rights, Mitakshra which was applied in presidency towns was regressive, whereas Dayabhaga which was followed in West Bengal was more progressive.
The brahmins and maulvis also have a great influence on family matters and they headed the settlement matters in the family. During the British era, the British judges relied on brahmins to interpret Dharmashastra and Manusmriti. However, this led to women’s rights being interpreted in a restrictive manner by the same court which interpreted rights liberally for European women.
FAMILY COURT ACT, 1984
These considerations led to the establishment of family courts in India after Independence. Also, since the Indian Constitution provided for the right to quality, manusmriti could not have been followed. So the Family Court Act, 1984 was passed by the legislature with the object of promoting conciliation and ensuring speedy settlement of disputes relating to marriage and family affairs. Section 3 of the Act requires the establishment of family courts in every city. Section 4 requires the appointment of women judges. The Act rightly appreciates that the women judges would be in a better position to empathize with women as they may be more sensitive to women's issues. Judges should endeavour to settle the dispute by conciliation and counseling. It has adopted a multi-disciplinary and coordinated approach by associating with social welfare organizations like NGOs engaged in promoting the welfare of the family. The Act provides for amicable and speedy settlement of cases u/s 9 which helps exercising other rights which had been put on hold, like the right to remarry. To ensure the comfort of parties, it also provides for in-camera proceedings and medical and welfare experts u/s 11 and 12. Further, the application of evidence law and CPC is not strict in family matters. For example, in CPC, not every order is appealable however Section 19 of the Act states that every judgment or order is appealable. Since family matters fall within the concurrent list, both Central and State governments have been provided power to make rules for carrying out the purposes of this Act.
THE WAY AHEAD
The principle of ‘gender justice’ was the primary motivation for the demand for special courts for family matters. However, the Family Court Act quite often makes the ‘preservation of the family’ as its primary aim (as also stated in its preamble) which it gets transformed into pressurizing women to reconcile and return to the matrimonial home, even at the cost of defeating her human dignity. The counselors who help in negotiation and settlement should be trained with gender sensitivity which will help them to take neutral positions. Since the power balance within the family and society is tilted against women, a balance of rights of a woman must be ensured.