This blog is created by Abhinab Mukherjee, a 2021 law graduate from University of Calcutta.
Introduction
Family courts are special courts that deal with marriage and family disputes, such as divorce, maintenance, custody, adoption, etc. The Family Courts Act 1984 was enacted to provide for the establishment of Family Courts by the state governments in consultation with the High Courts to promote conciliation and secure speedy settlement of such disputes. The central government has the power to notify the date for the Act to come into force in different states.
However, two states, namely Himachal Pradesh and Nagaland, have set up Family Courts under the Act before the central government’s notification. This action has created legal ambiguity regarding the validity and measures of these courts. To resolve this issue, the Family Court Amendment Bill 2022 was introduced in the Lok Sabha on July 18, 2022. Both houses of Parliament passed it in August 2022. The bill also validates all actions taken under the Act in these two states, including appointing judges, orders, and judgments passed by the Family Courts.
In this blog, we will discuss the necessity of Family Courts and the difference between the previous Act and the current bill.
The Necessity of Family Courts
Family courts are necessary for several reasons. First, they provide a specialized forum for resolving disputes related to marriage and family affairs, which are often sensitive and complex. Family courts have judges trained and experienced in dealing with such matters and can adopt a humane and compassionate approach. Family Courts also have counselors and social workers[1] who can assist the parties in reaching an amicable settlement.
Second, they promote conciliation and avoid litigation as far as possible. Family courts encourage the parties to settle disputes through mutual consent and mediation rather than adversarial proceedings. This process helps preserve the dignity and harmony of the family and reduces the emotional and financial stress on the parties and their children.
Third, they ensure the speedy settlement of disputes. Family courts have simplified procedures and rules of evidence, which enable them to dispose of cases expeditiously. Family courts also have exclusive jurisdiction over matters related to marriage and family affairs, which prevents a multiplicity of proceedings and conflicting judgments.
Fourth, they ensure justice and the welfare of society. Family courts aim to protect the rights and interests of women and children, who are often vulnerable and marginalized in family disputes. Family courts also uphold the values of marriage and family as institutions of social importance.
History of the Bill
The history of this bill can be traced back to the establishment of Family Courts in Himachal Pradesh and Nagaland by their respective state governments under the Family Courts Act 1984, without waiting for the central government’s notification.
The lack of jurisdiction of Family Courts in Himachal Pradesh was challenged before the High Court of Himachal Pradesh in 2019[2]. The High Court observed that as the central government had not issued any notification to extend the jurisdiction of Family Courts in Himachal Pradesh, such courts were functioning without jurisdiction, and anything done or any action taken under the Act appeared to be void ab initio (having no legal effect from inception).
Similarly, the family courts in Nagaland have been operating without legal authority since 2008, when the state government set them up under the Act.
Difference Between the Previous Act and the Current Bill
The main difference between the previous Act and the current bill is that the bill extends the application of the Act to Himachal Pradesh and Nagaland retrospectively from February 15, 2019, and September 12, 2008, respectively. The bill also validates all actions taken under the Act in these two states, including appointing judges, orders, and judgments passed by the Family Courts.
The previous Act did not apply to these two states because the central government had not yet notified the date of its commencement. The state governments had set up Family Courts under the Act without waiting for such notification.
The bill seeks to remove this uncertainty by providing legal sanctity to these courts and their actions retrospectively from when the state governments established them. The bill also aims to ensure uniformity in applying the Act across all states.
Conclusion
The Family Court Amendment Bill 2022 is a welcome step toward providing legal validity to the Family Courts established in Himachal Pradesh and Nagaland by their respective state governments. According to the bill, the Family Courts Act 1984 will be amended to extend its application to these two states retroactively from February 15, 2019, to September 12, 2008. The bill also validates all actions taken under the Act in these two states. These actions include appointment of judges, enforcement of orders, and determination of judgments passed by the Family Courts.
The bill will help resolve the legal ambiguity regarding these courts and their actions, which had been pending for a long time. The bill will also ensure uniformity in applying the Act across all states. The bill will further strengthen the functioning of Family Courts as specialized forums for resolving disputes related to marriage and family affairs in a speedy, amicable, and just manner.
[1] National Evaluation Study Of Family Counselling Centres by MoWCD
