PUCL Bulletin, 2001

Private tangles -- Family Courts
By Sudha Ramalingam

Family courts were established "with a view to promote conciliation in, and to secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith". Before the establishment of the Family Courts, the Civil Courts were adjudicating on family disputes too. Even now the Family Courts are confined only to big cities with a population of one million and more. Tamil Nadu has six Family Courts, three in Chennai and one each in Madurai, Coimbatore and Salem. People living in other areas have to take recourse to the sub-courts within their jurisdiction to raise family disputes.

Family Courts Act expressly bars appearance of advocates in the Family Courts. Section 13 states that no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. Because of this provision, those living in areas where Civil Courts govern them are entitled to legal representation, while those who are subject to the Family Courts' jurisdiction suffer without legal help. This leads to the necessity for the litigant to go to the Family Court at every step from filing, numbering, taking out the process, and appearing in the Court for every hearing even when the Respondent has not been served notice. In the Civil Courts, as the litigant is represented by an advocate of his/her choice, he/she need to be present only when the matter is posted for appearance of the parties and not for filing, numbering, etc.

As for the procedure adopted in the Family Court, the provisions of the Code of Civil Procedure (CPC) for civil matters and the Code of Criminal Procedure (Cr. P.C.) shall apply for maintenance proceedings initiated under Section 125 of the Cr. P.C. The Family Court is deemed to be a "civil court" and is conferred with the powers of a civil court. It is also conferred with the power "to lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one Party and denied by the other."

The Family Court Act also provides for the association of institutions or organisations engaged in social welfare or the representatives thereof; persons professionally engaged in promoting the welfare of the family; persons working in the field of social welfare and any other person whose association with a Family Court would enable it to function more effectively. It also provides for appointing Counselors and seek assistance of medical and welfare experts. In order to avoid adversarial proceedings, the Family Court Act may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act. The evidence adduced could be recorded in a memorandum and not at length as in the civil courts.

The above special provisions have made the Family Court unique in its functioning with more powers. On the other hand it burdens the litigant public with the responsibility to prosecute or defend oneself with no rightful legal assistance. The petitions or counters filed have to be in a certain format. The accompanying forms and court fee/ postal stamps, envelopes and number of copies of the papers filed are all to be in the manner prescribed by the C.P.C./ Cr. P.C. The litigant public is unaware of these cumbersome rituals. Even if they somehow try to read and prepare the case and file it, the Family Courts go beyond these and insist on proving the case even before they are numbered and taken on file as a case.

According to Section 9 of C.P.C., courts shall have jurisdiction to try suits of civil nature, except suits of which their cognizance is either expressly or impliedly barred. There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute one may bring a suit of one's choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. If the plaintiff sues upon a document in his/her possession or power, he/she shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. By virtue of these provisions it is not essential to file any document to support and prove a prima facie case at the stage of filing for the same to be numbered and taken on file, except when the relief sought for is based mainly on any document. Marriages, especially Hindu marriages, are not registered. There would be no document relating to marriage. The reliefs of matrimony such as restitution of conjugal rights, judicial separation, divorce, maintenance, custody of child are reliefs that are not sought for on documents. Hence it is absolutely not necessary to file any document whatsoever at the time of filing a case for matrimonial relief in the Family Court or Civil Court. In the Civil Courts they do not insist on any documentary proof to number and take the case on file. But the Family Courts in Chennai have started insisting on documentary proof of marriage to number and take on file any case that is filed in it. This is causing immense suffering and delay for the litigants. Several cases are kept unnumbered because of the insistence of documentary proof. Family Courts thus have become a burden than a solace to the litigants. Civil Court litigants are thus placed at an advantage.

The Family Courts, which have thus been established to render speedy justice, are blocking judicial remedies at the inception. Insisting on the appearance of the parties concerned from the stage of filing of the case, till obtaining the judgment copy, causes undue hardship to the litigants. Even to file a petition for divorce by mutual consent one finds litigants coming all the way from different countries spending huge sums, exhausting their leave and risking their jobs. Whereas the Civil Courts have been perceived to be more litigant friendly by functioning only as per law, with the advocate on record assisting the litigant at every stage and the minimum appearance of the parties in the Court. Unless the Family Courts device means to dispense with the personal appearance of the litigants to the minimum possible levels, effective speedy justice will only be a mirage to the litigants and Family Courts will only be scuttling judicial remedies.

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