Family The focus is now on how to

Family is one of the
most important institutions in the society. The growing trend shows a constant
breakdown of this institution. It is not just an emotionally traumatic
experience but also results in financial, social and psychological
repercussions. Hence when these matters come to court, the court has always
tried to bring about reconciliation in the marriage even if they are appeal
cases.

This has lead to
liberalization in the divorce laws all over the global. The increasing rates in
cases of judicial separation and divorce have lead the judiciary to take a more
liberal take on the matter. The focus is now on how to mitigate the
traumatizing effects of the breakdown and hence the courts now look into any
possibility of reconciliation under a positive duty to endeavor to bring about reconciliation.1 In India, marriage is
considered as a sacred institution. The Family Courts Act imposes an obligation
on the Courts to attempt for reconciliation and preservation of marriage before
granting the decree for divorce.

The process that is
current legal framework that is being used by the judiciary is not only long
and tedious but also taxing emotional, financial and physically. In the court
both the spouses are put up against each other and the need is to win a war.

But what is actually needed a settlement between both the parties so as to
maintain the peace and tranquility. The pressure to provide a special court was
always present as this would help in the speedy settlement of family related
dispute. This is where the need for an alternate forum comes in. This where for
the first time, a non adversarial approach was demanded for. This meant using
alternate methods like counseling to secure speedy settlement of these
disputes.

In the 59th
Law Commission Report, the committee stated the need for developing a separate
forum for the matters related to ‘family’. It stressed on the fact that the
courts needed to develop a new, radical method different from the existing ordinary
civil proceedings so that reasonable amount of effort can be put into
settlement before the commencement of trial. This resulted in the amendment of
Civil Procedure Code, which provided for a special procedure to be adopted in
the matters related to family. Since there was no change in the way how the
courts dealt with the family related matters, the need of the hour became to
establish the family courts.

Family Courts Act was
hence finally passed in 1984. Section 3, of the Act provides for a Family Court
to be established in every area of a State where the population exceeds one
million. This has to be made by the State Government after consultation with
the High Court of the State. The Central Government only has the authority to
provide for the qualification of the Judges of Family Courts and nothing else
according to this act.

The Act provides that
persons who are appointed to the family courts should be committed to the need
to protect and preserve the institution of marriage and to promote the
settlement of disputes by conciliation and counseling. Preference would also be
given for appointment of women as Family Court Judges.  The Government has taken note to ensure appointment
of more number of women judges to the Family Courts as stipulated in the Family
Court Act, 1984. According to Section 6 of the Act, the State Governments are
also required to determine the number and categories of counselors, officers
etc. to assist the Family Courts.

Specialized courts,
viz., Family Courts, about 84 in number, have been established in 18 States  and  Union
  Territories,  since  the
 year  1984,  to
deal with the issues pertaining to family  matters, like  marriage,  divorce, child custody, guardianship, maintenance,
etc.

This has also brought
the civil and criminal jurisdiction under the same roof. This was made to
ascertain that all litigation centralizing women be brought under the same
roof. This also brings the added advantage of civil suits with criminal nature
so as make sure of quicker disposal of these cases.

The Legal Services
Authorities Act, 1987, amended in 2002 provides access to justice for women. It
provides for alternate dispute resolution mechanisms through the Lok Adalath
(mediation and conciliation) and undertakes Parivarik Adalat (dealing with
family disputes) in collaboration with the National and State Commissions for
Women. Due to these alternate mechanisms many of the disputes have been
resolved out of court, thus providing women access to speedy justice and
resolution of their problems.

This project aims to
focus at the present situation alternate dispute settlement in matrimonial
matters in India. As we progress further in this project we will see how
counseling is aimed to be a more humane approach to the idea of divorce. Even
if we presume that the chance of saving the marriage is not high the couple
gets to settle the matter in their own manner without having to go through the
tedious process of court proceedings.

                                                                                                                                    

1 Derrett J.D.M., “An Introduction to Modern Hindu Law, (1963) at 177 quoted
by Werner F. Menski in “Hindu Law: Beyond Tradition and
Modernity” (2003) at p. 443 footnote. 30.