Family courts act 1984

The Family Courts Act, 1984, established Family Courts in India to expedite resolution of
family disputes and promote conciliation, especially in cases related to marriage, divorce,
and family matters. These courts prioritize amicable settlements through mediation,
reducing the time and cost associated with lengthy legal proceedings. The Act also aims to
protect the welfare of women and society by providing a specialized forum for handling
family-related issues.

The Family Courts Act, 1984 was enacted by the Parliament of India to establish Family
Courts for the speedy settlement of family disputes and to promote conciliation and secure
speedy redressal.

Below are the salient features of the Act:

🔹 1. Establishment of Family Courts

The Act mandates the establishment of Family Courts by the State Government in
consultation with the High Court in areas with a large population.

Objective: To exclusively deal with matrimonial and family-related issues.

🔹 2. Jurisdiction of Family Courts

Family Courts have jurisdiction over the following matters:

-Marriage and divorce

-Restitution of conjugal rights

-Maintenance (under CrPC Section 125 and other laws)

-Guardianship and custody of children

-Property disputes between spouses or family members

-Validity of marriage and matrimonial status

🔹 3. Appointment of Judges

Judges are to be appointed by the State Government with the concurrence of the High
Court.

Preference is given to women and those with experience in family law or social service.

🔹 4. Conciliation and Settlement

One of the main objectives of the Act is conciliation and amicable settlement.
The Family Court is required to make efforts to resolve disputes through mediation before
proceeding with trial.

🔹 5. Association of Social Welfare Agencies

The courts may associate with counsellors, welfare experts, or institutions to help resolve
disputes.

These professionals assist the court in understanding the family dynamics and emotional
aspects.

🔹 6. Simplified Procedures

The procedures followed in Family Courts are less formal and more flexible than regular civil
courts.

The court may evolve its own procedure, guided by the principles of natural justice.

🔹 7. In-Camera Proceedings

Proceedings in Family Courts may be held in camera (i.e., privately), especially in sensitive
cases like matrimonial disputes or child custody.

🔹 8. No Legal Representation as a Right

Parties do not have an automatic right to be represented by a lawyer.

Legal representation is allowed only with the permission of the court, aimed at reducing
adversarial litigation and promoting reconciliation.

🔹 9. Appeals

Appeals from Family Court judgments lie directly to the High Court.

🔹 10. Objective and Spirit

The Act aims to make the process of family dispute resolution more humane, sensitive, and
effective.

It focuses on protecting the welfare of children and maintaining the integrity of the family
unit.

Power:
1. Exclusive Jurisdiction (Section 7)

Family Courts have exclusive jurisdiction over matters such as:

Matrimonial issues (marriage, divorce, annulment, restitution of conjugal rights)

Child custody, guardianship, and access

Maintenance (under Section 125 CrPC and other laws)

Property disputes between spouses or among family members

Legitimacy of a child

🔹 2. Power to Lay Down Its Own Procedure (Section 10)

The Family Court is not strictly bound by the Code of Civil Procedure (CPC), 1908.

It can evolve its own procedure, guided by principles of natural justice.

This helps in making the process less adversarial and more conciliatory.

🔹 3. Power to Conduct In-Camera Proceedings (Section 11)

The court can conduct proceedings privately, especially in sensitive cases (e.g., divorce,
domestic abuse, child custody).

This ensures privacy and dignity of parties involved.

🔹 4. Power to Seek Assistance (Section 6 & Section 12)

The court can associate counsellors, welfare experts, psychologists, or social workers to
assist in dispute resolution.

Such experts may help the court in conciliation or provide reports on child welfare, family
dynamics, etc.

🔹 5. Power to Refer Cases for Conciliation (Section 9)

The Family Court has a duty to make efforts for settlement through conciliation before
proceeding to trial.

If successful, it may pass a decree based on mutual settlement.

🔹 6. Power to Permit Legal Representation (Section 13)

The court may allow a party to be represented by a lawyer, but only with the court’s
permission.

This aims to maintain a non-adversarial environment.

🔹 7. Power of Civil Court (Section 8)

The Family Court is deemed to be a civil court and has the same powers as a regular civil
court under the Civil Procedure Code (CPC).

It can issue summons, enforce attendance, receive evidence, etc.

🔹 8. Power to Execute its Orders

The Family Court has the authority to enforce and execute its own orders and decrees,
similar to a civil court.

🔹 9. Appeal (Section 19)

Appeals against judgments and orders of the Family Court lie to the High Court.

Functions:
The functions of the Family Court under the Family Courts Act, 1984 are centered around
promoting conciliation, protecting the welfare of the family, and ensuring the speedy
resolution of family disputes. Below are the main functions of Family Courts as envisioned by
the Act:

🔹 1. Adjudication of Family Disputes

The Family Court is primarily responsible for adjudicating family and matrimonial matters,
including:

Divorce, judicial separation, annulment

Custody and guardianship of children

Maintenance and alimony

Property disputes between family members

Legitimacy and paternity of children

Restitution of conjugal rights

🔹 2. Promotion of Conciliation (Section 9)

One of the key functions is to promote settlement and reconciliation between the parties.

The court should attempt conciliation at the first instance and throughout the proceedings
wherever possible.

🔹 3. Association with Experts and Counsellors (Section 6 & 12)

The Family Court is required to work with social workers, psychologists, and counsellors to
help resolve disputes in a more humane and understanding way.

Experts assist in cases involving child custody, mental health, or family welfare.

🔹 4. In-Camera Proceedings (Section 11)

The court can conduct proceedings privately in sensitive matters to protect the dignity and
privacy of the individuals involved.
🔹 5. Child Welfare Protection

In cases involving children (e.g., custody, guardianship), the court must ensure that the
welfare and best interests of the child are prioritized.

🔹 6. Flexibility in Procedure (Section 10)

The court is not bound by the Civil Procedure Code and can adopt a flexible and informal
procedure that facilitates justice and reconciliation.

🔹 7. Regulation of Legal Representation (Section 13)

Lawyers are allowed only with the permission of the court, reducing the adversarial nature
of proceedings.

🔹 8. Execution of Orders

The Family Court can pass and enforce decrees and orders, similar to a civil court, for
maintenance, custody, etc.

🔹 9. Speedy Disposal of Cases

A core function is to ensure that family disputes are resolved expeditiously, reducing
emotional and financial strain on families.

🔷 Conciliation and Mediation in Family

Disputes (India)

Conciliation and mediation are alternative dispute resolution (ADR) mechanisms that play a
central role in resolving family disputes in India, especially under the Family Courts Act,
1984. These methods aim to preserve relationships, promote harmony, and avoid the
adversarial nature of traditional litigation.

🔹 1. Definition and Difference

Conciliation
 A process where a conciliator actively assists parties in settling the dispute by proposing
solutions.

Mediation

A voluntary process where a mediator facilitates dialogue to help parties reach their own
agreement. Acts as a facilitator, not a decision-maker.

🔹 2. Legal Backing

✅ Family Courts Act, 1984

Section 9: The Family Court must make efforts for settlement before proceeding with the
trial.

Encourages conciliation at every stage of proceedings.

✅ Civil Procedure Code (CPC) – Section 89

Provides for referral to ADR including mediation, conciliation, arbitration, or Lok Adalat.

✅ Mediation Rules, 2003 & Supreme Court Guidelines

Applicable across India; many High Courts have framed their own mediation rules.

Supreme Court has emphasized the importance of mediation in family matters (e.g., Afcons
Infrastructure Ltd. v. Cherian Varkey Construction Co., 2010).

🔹 3. Why Conciliation/Mediation in Family Disputes?

Benefit Explanation

✅ Preservation of relationships Useful in matters involving long-term relationships

(e.g., spouses, children).

✅ Privacy and confidentiality Disputes are resolved without public scrutiny.

✅ Less adversarial Encourages cooperation, reduces hostility.

✅ Faster and cost-effective Saves time and money compared to court battles.

✅ Child-centric outcomes Focuses on the welfare of children in custody disputes.

🔹 4. Common Areas for Mediation in Family Law

Divorce and separation agreements

Child custody and visitation rights

Maintenance and alimony

Division of matrimonial property

Domestic violence (for some civil aspects, where appropriate)

🔹 5. Role of Family Courts

Appoint counsellors and mediators to facilitate settlement.

Often refer disputes to court-annexed mediation centres.

If mediation fails, court proceeds with regular trial.

🔹 6. Outcome of Mediation/Conciliation

If successful, a settlement agreement is recorded and passed as a court decree.

It is legally binding on both parties.

If not successful, the case is resumed before the judge.

🔹 7. Key Judicial Pronouncements

K. Srinivas Rao v. D.A. Deepa (2013): Supreme Court emphasized mandatory mediation in
matrimonial cases before litigation.

Afcons Infrastructure Ltd. v. Cherian Varkey (2010): Clarified when courts should refer
disputes to mediation under Section 89 CPC

🔷 Negotiation in Alternative Dispute

Resolution (ADR)
Negotiation is one of the most fundamental and flexible methods of Alternative Dispute
Resolution (ADR). It is a voluntary, informal process where parties communicate directly with
each other to resolve a dispute without third-party intervention.

🔹 1. What is Negotiation?

Negotiation is a dialogue between two or more parties aimed at reaching a mutually

acceptable agreement regarding a dispute or issue.

It is:

Voluntary

Non-binding until an agreement is reached

Often the first step in resolving disputes

🔹 2. Features of Negotiation

Feature Description

✅ Direct communication /Parties deal with each other without any intermediary.
✅ Voluntary process /Initiated and continued by the mutual consent of the parties.

✅ Flexible /No fixed rules or procedures; customized by the parties.

✅ Confidential /Discussions are private and not on public record.

✅ Control retained by parties/ The outcome is shaped entirely by the parties’ decisions.

🔹 4. Stages of Negotiation

Preparation – Identify interests, issues, and desired outcomes.

Opening – Parties present their positions and goals.

Bargaining – Offers, counteroffers, and compromises are exchanged.

Agreement – Settlement terms are finalized and recorded.

Closure – Final agreement is confirmed and may be made legally binding if necessary.

🔹 5. Advantages of Negotiation

✅ Fast and cost-effective

✅ Preserves relationships

✅ Confidential and private

✅ Offers creative and flexible solutions

✅ Empowers parties to control the outcome

🔹 6. Limitations of Negotiation

❌ May be ineffective without goodwill or trust

❌ Power imbalance can affect fairness

❌ No third-party to guide or resolve impasses

❌ Not legally binding unless formalized in a written agreement

🔹 8. Applications in Legal and Family Disputes

Property and contract disputes

Family matters (divorce, maintenance, custody)

Employment and business conflicts

Consumer disputes