By : Manav Chakraborty

Abstract

The Family Courts Act of 1984, was introduced in India to provide a specialised and sensitive forum for resolving family disputes with a focus on gender justice and the welfare of women. However, its implementation has revealed significant unintended consequences. This paper critically examines how the Act’s objectives—such as prioritising the preservation of family and ensuring women-friendly adjudication—have sometimes undermined the very rights it sought to protect

Introduction

The Family Courts Act, of 1984  is a statute which instituted a separate and distinctive adjudication forum to deal with issues of family disputes. The establishment of Family courts in India was an age-old historical idea stretching back to the 1920s and 30s. It especially gained traction during the 1980s, which witnessed an explosion of ‘new-age’ women’s rights movements. The main aim of these movements was to usher in radical legislative changes, particularly in areas where women were the most vulnerable and faced the brunt of violence – rape, wife murder and dowry and other related offences. 

The mounting pressure on the government resulted in a series of enactments and amendments to existing statutes, like amendments to rape laws (s.375,376 of the IPC), dowry laws and further legislations to address the growing demands of women’s organisations. The Family Courts Act of 1984 followed along the same lines as providing an alternative to the formal adversarial structures of civil and criminal courts by creating women-friendly adjudication spaces. An implicit attempt was made through the enactment of this act to embed the notions of gender justice in our judicial system and provide a strong legal framework for the protection of women. Despite the noble and sincere attempts, there was a huge fissure between the objectives of the Act and the realisation of its goals. This article highlights how conflating “preservation of family” with “women’s rights” is problematic and can harm women’s interests. Additionally, it examines how subsequent court interpretations and executive implementations have undermined the intended goals of the Act.

The Mistaken Assumption

The traditional adversarial system has long been deemed unsuitable to deal with issues of familial matters due to its impersonal and hierarchical approach to rules and regulations. On one hand family conflicts often involve a complex interplay of emotional and sentimental complaints and on the other, courts being predominantly bound by precedents are prevented from using contextual decision-making. In response to these drawbacks, family courts were introduced to ensure parties have more capability and control over their cases and an individualistic approach can be taken. However, this approach unfortunately wrongly assumes the proposition that both men and women are equally placed at the negotiating table. 

In his paper, titled ‘ Family Courts: A Critique’,D. Nagasaila argues that the Family Court Act was implemented under the wrong assumption that both men and women have equal bargaining power. The act fails to acknowledge the huge discrepancy in power between the two parties. In most cases, the man is placed in a dominant position which puts women in a vulnerable condition. This may lead to a situation where a woman is compelled to make compromises that jeopardise her safety and interests. 

Preservation of Marriage

Another problem that plagues the Family Court system in India is the emphasis on preserving the institution of marriage. Section 4 of the Family Courts Act mandates the appointment of judges and prescribes that individuals who are dedicated to upholding the institution of marriage and who promote the welfare of children should be appointed. The importance drawn on safeguarding the sanctity of marriage is what goes against the well-being of women. It is in the family where women are the most vulnerable. Within this supposedly sacred institution, heinous crimes against women, such as dowry deaths, rape and domestic violence, frequently occur. This emphasis on the preservation of marriage may work against the original purpose of implementing the act which was to safeguard the interests of the women. 

Similarly, it is a historically well-established fact that the institution of marriage is mostly preserved at the cost of women by denying them property rights and the right to divorce. It was in this context, that several legislations like The Indian Divorce Act, 1869,  the Parsi Marriage and Divorce Act, 1936, and further amendments like that to the Hindu Marriage Act in 1976 were enacted to loosen the sacramental bond of marriage in order  to give women the right of divorce and the consequential right to property ownership. The enactment of the Family Courts Act was anticipated to advance this objective by making matrimonial proceedings more fair, cost-effective, and free from the prevailing anti-women biases within the legal system. However, as the Preamble made clear through its subsequent sections, the commitment of the Act was not towards gender justice but rather ‘preserving family.’ 

Role of Lawyers and Counsellors

Lawyers and counsellors have been accorded a unique and distinctive role in family courts according to the provisions of the Family Courts Act. Section 13 of the Act, restricts the role of lawyers in Family court due to fears of the exploitative, delaying, manipulative and other subversive tactics often adopted by lawyers. The provision was inserted keeping in mind that Family Courts were to function differently from traditional, formal adversarial Courts and the obstructive role of lawyers was identified as one of the biggest impediments to performing their purpose effectively. However, the intention behind this provision seems to be short-sighted and lacking key foresight of problems that could arise from its enactment. Many experts have argued that the presence of lawyers is required to help their clients navigate through the complex maze of procedural issues and other requirements they have to face. Many Courts have agreed with this viewpoint and various High Courts have highlighted how it is unfeasible for the parties to take up pleadings and fulfil other Court procedures and responsibilities independently. Hence, Courts nowadays treat requests for legal assistance from clients as mere formality as refusal to grant it only leads to more protracted delays and lengthy proceedings. 

The rationale behind the implementation of Section 13 is intrinsically linked to Section 6 of the Act which bestows counsellors with a very prominent role in the settlement of disputes. Section 6 stipulates that it is the duty of the family court to make efforts for settlement. As stated before, one of the key intents behind enacting the Act was to ensure the speedy resolution of disputes and avoid lengthy contested litigations. With this view, the role of lawyers was curtailed as illustrated by Section 13 and non-legal professionals with experience in dispute resolution were chosen to aid judges. Marriage counsellors in these Courts have played a positive role in many of the proceedings under this Act. Converting a contested divorce petition into a petition for divorce by mutual consent, and negotiating financial settlements at the time of divorce, are some important functions that marriage counsellors have performed. 

Conciliation: The Best Alternative?

As mentioned before, the Family Courts Act wanted to break free from the quintessential and archetypical legal process and provide a safe, secure environment for resolving family disputes. To achieve this objective the framework behind dispute resolution was adopted as it provides a model for consensual and non-litigious settlement of disputes. Hence, the provisions of the Act and even ensuing judgements have repeatedly emphasised that the priority is persuading the parties to arrive at a settlement.

However, these alternative dispute resolution methods are not necessarily the best way to achieve the goals of the Act. In many cases, reconciliation between the parties results in the woman being forced to reconcile with her husband and return to her matrimonial home at the cost of her dignity, physical safety and economic freedom. Furthermore, due to vast variance in the rules governing the appointment and working of mediators, inefficiency and malpractices have crept into the work of counsellors. Similarly, counsellors have been known for the use of intimidating measures in order to prevail upon the parties to settle their disputes. They do so to bring about quick settlement of disputes between the parties and discourage litigation. These settlements are not always in the best interests of women and may force them to enter into resolutions which might not be to their benefit.  

Conclusion 

The Family Courts Act was undoubtedly enacted with a view to make settlement of family disputes less hostile, intimidatory and more amicable so as to give women greater agency and choice over the decisions they make. However, as pointed out, due to its clumsily worded provisions and ambiguous nature, they have been open to differing interpretations, some of which do not account for the best interests of women. The act could still achieve its purpose but this would require active efforts on part of the judiciary, government and all other instrumentalities involved.

Author’s Bio

Manav Chakraborty is a third-year law student currently pursuing B.B.A LLB (Hons.) from Jindal Global Law School, Sonipat. His interests lie in exploring the intersectionality between the current modern-day politics and law, and the realm of international affairs.

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