Family Court & Wakf Court (Kollam)

Acknowledgement

I would like to express my gratitude and appreciation to all those who gave me the opportunity
to complete this internship programme in the Family Court & Wakf Court , Kollam which gave
me a vital experience in my journey . I completed my internships under the guidance of the
_____________.

I am thankful to the members of the Family Court & Wakf Court for the valuable guidance.
I would also like to acknowledge with much appreciation for the critical role of our professor
who gave me such an opportunity.

Introduction

Before 1984, all family matters were heard by the ordinary civil court judges who used to
take a long time to provide relief to the parties.
The regular courts are burdened with so many civil matters that no attention was given to the
family-related disputes.The Law Commission in its 59th Report (1974) also emphasized that
there is a need to distinguish the family-related disputes from common civil proceedings and
reforming efforts should be made to settle the disputes between a family.Therefore, to provide
speedy settlement with fewer expenses and formalities, in disputes relating to marriage and
family and to make an agreement between the parties for their conciliation, the Family Courts
Act, 1984 was enacted by Parliament on 14, September 1984 to establish family courts in India.
This act contains 6 chapters and 23 sections.

Objectives of the Family Court

● To provide speedy justice and disposal of family cases at the earliest.

● To promote conciliation and mediation in disputes relating to marriage.
● To preserve family ties.
● To solve the matter of family within a short period.

Establishment of Family Court

Section 3 of the Family Court Act, 1984 provides that, the State government, after consultation
with the High Court shall establish the family court in every area of the state where the
population is exceeding 1 million or in the area where the State government deem necessary

Jurisdiction of the Family Court (Section 7)

Section 7 of this act grants the family courts the same powers and jurisdiction as the District
Court or Subordinate Civil Courts in their suits and proceedings.

Section 7 (2) gives the family courts the authority to exercise the same jurisdiction as a
Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, 1973, as well
as any other jurisdiction provided by law

Common cases heard in family courts

● Dissolution of marriage

India is one of the countries with the largest population, due to which there are many married
couples in the country. While having this large number of married couples, there will be more
chances of having more cases of disputes between the couples and their family. And for seeking
remedy they will surely approach the courts.

In India, the family court can accept the appeals for grant of decree of divorce under various
acts like Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on
Divorce) Act, 1986, the Parsi Marriage and Divorce Act, 1936, the Divorce Act, 1869, the
Special Marriage Act, 1954, Foreign Marriage Act, 1969 etc. For the dissolution of Hindu
marriage, one can file an appeal for divorce under Hindu Marriages (validation of proceedings)
Act, 1960.

● Child custody

The explanation (g) in Section 7(1) provides that the family court has jurisdiction to grant the
custody of the child to a proper person and to make that right person the guardian of a minor.
The cases related to the custody of the child are filed before the family court where he usually
resides. For example, if the father is residing in Uttar Pradesh and the mother along with the
minor child is residing in Mumbai and the father wants to have custody of the child then he has
to file the case in Mumbai’s family court. Thus, the family court has exclusive jurisdiction over
child custody cases. The family court has also the power to accept the petitions made under the
Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956.

● Security orders- domestic violence

The family courts act has not specifically mentioned the jurisdiction of the family court in matters
of domestic violence. And this is the area where family courts are lacking. Though the act hasn’t
made any provision related to the matters of domestic violence. However, there is a provision
under the Protection of women from Domestic Violence Act, 2005 (hereinafter DV Act),
according to which the family court can entertain the matters related to domestic violence. The
DV Act is not wholly a criminal law; it has also granted powers to the civil and family courts. As
per Section 26 of the DV Act, the victim can not only claim relief from the Magistrate but also
from the family court and other civil courts.
 ● Maintenance

Under the family court act, explanation(f) of Section 7(1) clearly provides that the family courts
have jurisdiction over the suits or proceedings for maintenance. Also under Section 7(2), the
family courts have the power to exercise a jurisdiction which is exercised by a Magistrate of the
first class under Chapter IX of the Code of Criminal Procedure, 1973, which is related to
maintenance of wife, children and parents. This means the family courts can grant maintenance
under Section 125 of CrPC.

● Property disputes

As per the explanation (c) of Section 7(1) of the family courts act, the family court has
jurisdiction over the disputes related to the property of the parties to the marriage. Generally, the
disputes between the parties to the marriage arise when the decree of the divorce has been
passed. The family court can entertain the suit or proceeding related to the disputes of the
property of the parties of the marriage by satisfying two conditions:

Such a dispute must have arisen between the parties to the marriage only;
Such a dispute must have arisen due to the property of either party.

Duty of Family Court (Section 9)

● Section 9 of this act prescribes the duty of the family court to make reasonable efforts for
reconciliation between the parties.It prescribes the duty of the family court to make
efforts to promote reconciliation between the parties.

● As per Section 9(1), in the first instance, the family court, in every suit or proceeding,
shall make efforts to convince the parties to settle the dispute with an agreement.

● According to Section 9(2), if the family court finds that at any stage of the proceeding
there is a reasonable probability of settlement between the parties, the court has the
power to adjourn the proceedings until the settlement is reached.

Procedures followed by the Family Courts

The primary object of the Family Courts Act 1984 was to give the chance of conciliation to the
litigants and to prepare for rapid dismissal.

Stage 1 � Court Counseling and Mediation

When the respondent gets a summons from court, he/she will need to show up under the
watchful eye of the Judge of the Family Court. As previously stated, under Section 9 of the Act,
the courts are mandated to make efforts for the settlement of disputes. Thus, at the first stage,
the Judge would allude the parties to the counsellor for going through the way toward
counselling. It is to keep away from any worsening of conditions and to empower possible
conciliation between the couple.

The counsellors will undoubtedly unveil the minutes of the discussion between the spouses
before them for counselling. The counsellor will send a report demonstrating if the settlement
could be shown up.

Stage 2 � Counter-Statement

If the case isn't settled through alternative dispute resolution methods, the case alludes back to
the court. The Family Court Judge has abundant powers under Section 10(3) of the Act to assist
the parties.

Stage 3 � Evidence

After the pleadings on either side are finished, the enquiry is initiated with the petitioner. The
chief examination of the petitioner is finished via testimony. The petitioner and the respondent
will record the proof under the Judge's steady gaze regarding his/her appeal. The provision of
section 15 and 16 of the Act sets out the method for recording evidence.
Section15:
A record of the oral evidence isn't required for a family court to record a witnesses' evidence.
Finally, just that part is adequate, identified with the suit or continuing, and the Judge and the
witness should sign it.
Section16:
Evidence of formal character on affidavit. The evidence of any individual where such evidence is
true might be given by testimony and may, subject to all just exceptions, be read in evidence in
any suit or proceeding under the watchful eye of a Family Court.

Stage 4 � Cross-Examination

The petitioner and the respondent will be allowed to cross the other party to counter-argue their
submission and nullify the cases and evidence produced in the court. The parties can help their
pleader prepare to record the confirmation of evidence and questioning of the other party.

Stage 5 � Decree and Order Passed by the Court

After hearing the rival contentions, the court may defer the case to pass the decree and order to
permit or excuse the appeal under the court's watchful eye.
The procedures of the family court can be held within the presence of cameras. As per Section
11 of the Act, the family court procedures might be held in camera if the court feels so or any
party to the suit needs to do such.

As the family courts work with fewer formalities, they don't record the long evidence of
witnesses. Just that evidence of the witness is recorded and identified with the topic. As
indicated by Section 14 of the Act, any report, statement or document, identified with the topic is
admissible under the Indian Evidence Act, 1872.

Case law (discussed)

Case Type : OP Div

Filing Number : 100877/2020

Filing Date12-08-2020

Registration Number : 100805/2020

Registration Date : 12-08-2020

CNR Number : KLKM040011672020

Fact of the case

The case involves two Christians who were married, with two children born during their
marriage. The husband was the petitioner and the wife was the respondent. The respondent
showed reluctance to live with her husband in the matrimonial home and often mistreated him.
After a month of marriage, the husband was hospitalized due to jaundice. However, upon his
return home, the respondent did not take care of him, despite his repeated requests. When the
husband learned that the respondent was pregnant, he arranged for expert medical care and
nursing. Even after the birth of their child, the respondent was still reluctant to join her husband
at his family home. While living under the same roof, she quarreled with him and even
prohibited him from entering the house.
After withdrawing herself from their matrimonial life, the respondent returned to her parental
home with their children. However, the petitioner was mentally harassed by the respondent,
which led him to start sending her 15,000 rupees per month for maintenance. Since there is no
chance for a reunion and the respondent has deserted him since 2017, the petitioner has filed
for dissolution of their marriage.

Issues

1. Whether the petitioner is entitled to a decree of divorce on the grounds of cruelty?

2. Whether the petitioner was entitled to a decree of divorce on the ground of desertion as
alleged in the original petition?

Legal provisions

1. Indian divorce Act , 1869 (Section 10 (ix),(x))

Section 10. Grounds for dissolution of marriage.—(1) Any marriage solemnized, whether before
or
after the commencement of the Indian Divorce (Amendment) Act, 2001 (51 of 2001), may, on a
petition presented to the District Court either by the husband or the wife, be dissolved on the
ground that since the solemnization of the marriage, the respondent—

(ix) has deserted the petitioner for at least two years immediately preceding the presentation of
the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the
mind of the petitioner that it would be harmful or injurious for the petitioner to live with the
respondent.

2. Family Courts Act, 1984 (Section 7)

Section 7. Jurisdiction.-

(1) Subject to the other provisions of this Act, a Family Court shall-

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate
civil court under any law for the time being in force in respect of suits and proceedings of
the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a
district court or, as the case may be, such subordinate civil court for the area to which
the jurisdiction of the Family Court extends.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-

(a)the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to
order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2
of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

Referred case

Samar Ghosh vs Jaya Ghosh

The Hindu Marriage Act has been ruled to be unconstitutional in cases of mental cruelty. Mental
cruelty refers to severe and substantial harm caused by one spouse's behavior towards the
other, resulting in unhappiness, dissatisfaction, and emotional distress. It can be a result of
long-term anguish, disappointment, and frustration caused by one spouse's conduct. A
sustained pattern of abusive and humiliating treatment can also be considered mental cruelty.

Isolated instances of mental cruelty may not be sufficient grounds for divorce, but persistent
ill-conduct that deteriorates the relationship to an extent where living together becomes
extremely difficult may be considered. Examples of mental cruelty include a husband
undergoing sterilization without consent, a wife undergoing vasectomy or abortion without
consent, and a spouse unilaterally refusing sexual intercourse or not having a child from the
marriage without valid reason.

In cases of prolonged separation, the marriage may be inferred as irreparable, as the law may
show a lack of consideration for the feelings and emotions of the parties involved, leading to
mental cruelty.

Analysis

She did return to him after being discharged from the hospital. When he was admitted to
suffering from jaundice she didn't care about him, this was the first instance of cruelty alleged by
the petitioner and it took place days after the marriage.
There were various disputes between them even though they cleared the air and continued to
live together the disputes were Continuing. The respondent also demanded to convey property
and house to her favor and returned to her parental home taking the children with her,
abandoning the matrimony with the petitioner.
These instances attract the provisions of mentally suffered cruelty and desertion.
There were various mediation efforts which ultimately turned futile. From these instances, it's
clear that the respondent and petitioner can't live together anymore.
The petitioner has given evidence following the case and confirmed his stance in
Cross-examination also. but at the same time, the respondent hasn't adduced any evidence
Disputing the allegations made by the petitioner.

Judgement

In the result, the petition is allowed. The marriage which was solemnized between the petitioner
and the respondent on 15/01/2004 at St.Antony's Church, Kanjirakode; is dissolved by way of
this decree and the order shall take effect forthwith.

All documents which are not declared as void or superseded by the way of this decree will be
liable to be destroyed after three years from the date of this decree. Given under my hand and
seal of the court on 29th day of February, 2024.
Conclusion

It is evident that the setting up of these family courts was a dynamic step so far as reducing the
backlog and disposing off cases while ensuring that there is an effective delivery of justice.
However, as aforementioned, there are still matters of concern which plague these courts. The
issues relating to the functioning of these courts is to be seen in total, as quoted in the examples
relating to the procedural as well as substantive aspects of the problems. There are many
controversial and debatable issues such as engaging a lawyer due to the specific provisions of
the Family Courts Act.

Furthermore, the lack of uniformity regarding the rules laid down by different states also leads to
confusion in its application. Merely passing a central legislation is not in itself a complete step;
for implementation in its spirit, it is to be ensured that some level of uniformity is maintained, at
least in the initial stages of its coming into effect. Further, the need to amend certain laws is also
to be examined and implemented effectively in order to ensure that these courts do not face any
hindrance in their working. These small steps, if examined and implemented within time, will go
a long way to ensure that the Family Courts are successful, to a greater degree, to fulfill the
noble purpose for which they were created.