Although ancient India was known for its laws governing the people both at family level and societal level it was only in 1953 the movement to establish a family court in India was initiated. It was Durgabhai Deshmukh, a noted social worker from Maharashtra after a tour of China where she had occasion to study the working of family courts, Deshmukh discussed the subject with the legal fraternity of the country and then made a proposal to set up family courts in India to Prime Minister Jawaharlal Nehru.
Later the Law Commission, in its fifty fourth report recommended the need for special handling of matters pertaining to divorce. This was due to the special nature of the dispute and the consequences it had on one’s personal sphere. The matters related to family dispute burdened the judiciary which lead to huge backlog of cases. Even the parties approaching the court had to face the consequence of this backlog where a matter took anywhere from 7 to 30 years to be disposed off.
This made the Law Commission to realise in its 59th report the need for a specialised set of courts. The committee stressed that in dealing with disputes concerning the family, the court ought to adopt an approach radically distinguished from the existing ordinary civil proceedings, and that these courts should make reasonable efforts for settlement before the commencement of the trial.
Finally in the year 1984, when the Bill was introduced in the parliament for being passed as an Act, statement of objects and reasons accompanying that Bill referred to the futility of the special procedure required to be adopted by ordinary courts in dealing with family matters and the need for the establishment of family courts. The Act was passed in the same year and family courts came into existence. As on May 2016, there are 439 functional family courts across the country. With Uttar Pradesh, Madhya Pradesh, Bihar, Kerala, Rajasthan, Karnataka, Maharashtra, Jharkhand, Chhattisgarh and Tamil Nadu being the top ten states having the highest number of courts.
Alternate Dispute Resolution in Family Courts Act
In Indian society marriage has been given the utmost prominence. Marriage does not only have its effect in the individual sphere but pervades and expands over the social sphere. This inter-relation between the society and marriage leads to the marriage being affected by socio-economic forces in society. In the ancient Indian society emphasis was laid on the joint family system which provided a sense of security amongst the member of the family but owing to various socio-economic factors the joint family system began to disintegrate, giving place to a unitary system. A joint family system not just ensured security from the external threats but also helped in conciliating the family dispute in an amicable manner where the head/elders of the family took care of resolving the disputes within the family which also included marriage disputes.
The Family Courts Act, 1984 was enacted to achieve manifold objectives such as decongestion of ordinary trial courts, providing a safe and secure environment for resolving family disputes, etc. At the core was the understanding that a family dispute was unlike any other dispute and therefore necessarily had to be dealt with differently. This spirit was incorporated in the legislation of Family Court Act.
The Preamble to the Family Courts Act, 1984 enacted by the Indian Parliament states that it is “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.” Simultaneously, section 9 of the Act also states that “in every suit or proceedings, endeavour shall be made by the family court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceedings and for this purpose a family court may, subject to any rules made by the High Court, follow such procedure as it may deem fit, and appears that there is a reasonable possibility of settlement between the parties for such period as it think fit, is necessary for taking the required measures for bringing about the settlement.”
In seeking to achieve the above objects, the endeavour of the Family Courts Act was to adopt a friendly, conciliatory and informal dispute resolution atmosphere which would enable parties to amicably settled their differences without the shackles of the technical rules of the law of procedure and evidence. Thus one thing can be inferred that although the Act provides for litigation mechanism, the main object still remains to dispose of the matter by bringing the parties to a settlement.
Unlike litigation Conciliation is a more personalised process than adjudication. It is not impersonal distanced like the formal judicial process. In conciliation a judge plays an important role as a conciliator. He is bound to make all possible efforts to protect and preserve the interest of marriage and promote the welfare of the children of the parties to the dispute by the process of conciliation and counselling in association with medical and social welfare agencies and other experts. However, the act doesn’t provides for an institutionalised conciliation which has seen criticism in the recent past.
The Code of Civil Procedure also provides for similar dispute resolution mechanism. In any case bringing about reconciliation or in the alternative, an amicable settlement has always been on the highest priority of the makers of the legislation since the day it was enacted.
The Act also provides for Counsellors under section 6. In most states, counselling has remained external to the judicial forum; the mandatory provision of counselling is followed in a cursory manner and their role is confined to the task of ascertaining whether it is possible to reconcile the dispute and save the marriage. But, new initiatives are being taken by the states in making an effort to collaborate with various institutions so that emphasis is laid on counselling as a dispute settlement mechanism.
In 2005, Andhra Pradesh introduced counselling where under the State Legal Service Authority and the parties are referred to counsellors. Help of NGOs who offer counselling service is also sought, when required. Similarly Tamilnadu government in 2006 started a counselling centre along with a psychology centre and a children’s complex in the family court. In West Bengal under Section 23 to 27 of the rules framed by the Calcutta High Court in 1990 deal with the counselling process, counsellors are appointed by the Court in consultation with one or more professionally activated experts in family and child welfare. Preferably working with a recognised institution of social sciences or social work, and persons having a master’s degree in social work with two years in family counselling will be eligible for appointment as counsellors.
A common thing which can be seen in all the initiative is emphasis on inclusion of social welfare institutions especially NGO’s in counselling. This becomes important considering the fact that the role of counsellors is not limited to counselling but extends to reconciliation and mutual settlement wherever deemed feasible.
Although there has been many legislation which helps in resolving the matters through non litigation means, there still exists a gap which needs to be bridged in the rural areas. Even after the passing of several legislations which calls for protection of women friendly laws, the rural parts of the country is still ignorant of such laws. This has led to an introduction of new class of dispute resolution mechanism known as ‘women’s court’. These courts deal with a broad and somewhat diverse category of dispute resolution bodies set up speciﬁcally to deal with women’s marital and family problems, usually by counselling and mediation between the complainant and her husband or other relatives. Their goal is to avoid matrimonial litigation and, if possible, ﬁnd a way to reconcile the couple and keep the family unit intact. They do this by persuading the parties to agree to some kind of compromise settlement of their differences that usually includes commitments by both parties to change behaviours that have created conﬂict between them in the past. The most noticeable factor is that only a few of such courts have been recognised officially. Others have no ofﬁcial status but are set up and run independently by women-led non-governmental organizations (NGOs).
These courts are sponsored by leaders of the NGOs and most staff members of the government agencies that sponsor these all-woman courts are typically middle or upper class, college-educated women. However, these sponsors’ themselves do not preside over the matter by themselves but aim at recruiting and training local women for these roles. The main idea behind such training is to ensure that the cultural gap should not affect the dispute resolution mechanism by creating a barrier to open communication and often leads to ‘solutions’ that are both inappropriate and unworkable in terms of the realities of their clients’ everyday lives.
These forums have been acting as a type of ‘alternative dispute resolution’ although they are not formally set up by the government under any of the legislations. The decisions of such forums are not ofﬁcially recognized by the state-sponsored judicial system nor does the authority of the state stand behind them. Although they frequently employ a quasijudicial rhetoric when referring to their aims and modes of operation and are often observed to replicate judicial procedure and methods of record-keeping at their hearings, their role vis-a-vis the state is peripheral at best and their goals overlap only partially with those of the formal justice delivery system, as represented by the police and the courts. However, there are many examples where the state governments have made efforts by financially aiding the NGO’s involved in such services. They provide an alternative way, which is generally considered to be favourable, of mediating marital disputes, outside of the formal legal system, offering women what they term ‘social justice,’ rather than the ‘legal justice’ dispensed by state courts. Thus, in a way these NGO run dispute resolution mechanisms are supplementing the Family Courts Act in resolving the marriage dispute since they settle the problems amicably at local level within short period of time which might have went on for years together if formal means had been sought. The forums also come as a relief to the family courts which are burdened with numerous litigations.
The process has also been successful to a great extent since these NGOs’ wider aim is to bring about gender equality in society at large, to eliminate the dominant ‘patriarchal’ norms and values that keep women in a subordinate position and prevent them from full access to the rights to which they are entitled. Unlike the traditional local panchayats where the village headmen used to decide matters on the basis of the age-old convictions and social dogmas these NGO’s are striving to protect the rights of the women by protecting the institution of marriage not through force but through mutual consensus of the parties.