CHAPTER-(3)

POWERS OF FAMILY COURTS

It is not unknown that a gaping loophole in the Indian Judiciary is the

backlog of cases. The number of cases being filed in the Supreme Court is
consistently on the rise. 34683 cases were filed in Supreme Court in the year 1999,
whereas, 70350 were filed in the year 2008, the increase being about 103% nine
years. There are cases dealing with a broad spectrum of issues such as family
matters and property which continue for generations. Such cases continue for
atrocious periods of time, ranging from 7 years to 30 years. In such a scenario, the
channeling of cases to different courts set up specially for this purpose not only
ensures their speedy disposal, but also ensures that the cases, being dealt by with
experts in courts specially set up for this purpose; are dealt with more effectively.
The saying that “justice delayed is justice denied” then becomes relevant to take
into consideration.

Further, pertinent to note here is that Marriage as an institution has become

the subject of great judicial scrutiny. There are a number of judicial provisions
dealing with marriage and its various aspects. The result is that, in addition to the
various advantages that these legal provisions may provide; the privacy of this
institution has been threatened. As per studies conducted in Mumbai and Delhi, 40
% of marriages are heading towards divorce. There are also cases of misuse of
provisions like Section 498A of the Indian Penal Code, Protection of Women from
Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody
laws to name a few.
 There are issues like alimony which become the topic of great controversy
and cause harassment to families. What further becomes a problem is that personal
issues get intertwined with the legal issues and lead to the unnecessary prolonging
of the disposal of these cases. The younger generation, being made a scapegoat in
the changing times due to the ensuing cultural war between Conservatives and
Liberals, wastes its useful youth in the precincts of the litigating corridors of the
family courts, criminal courts and magistrate courts waiting in long queues being
expectant of receiving justice.
The Family Courts Act, 1984 was part of the trends of legal reforms
concerning women. Because of the building pressure from various institutions
lobbying for the welfare of women all over the country, the Act was expected to
facilitate satisfactory resolution of disputes concerning the family through a forum
expected to work expeditiously in a just manner and with an approach ensuring
maximum welfare of society and dignity of women. Prevalence of gender biased
laws and oppressive social practices over centuries have denied justice and basic
human rights to Indian women. The need to establish the Family Courts was first
emphasized by the late Smt. Durgabai Deshmukh. After a tour of China in 1953,
where she had occasion to study the working of family courts, Smt. Deshmukh
discussed the subject with certain Judges and legal experts and then made a
proposal to set up Family Courts in India to Prime Minister Pt. Jawaharlal Nehru.
To this background, a significant development has been the recent setting up of the
Family Court in Delhi.

Though such courts have been set up and are functioning in other states, the
setting up of a family court in the Capital is a significant development and a step
which was necessary to be taken. The main purpose behind setting up these Courts
was to take the cases dealing with family matters away from the intimidating
atmosphere of regular courts and ensure that a congenial environment is set up to
deal with matters such as marriage, divorce, alimony, child custody etc. As
mentioned earlier, an effective way of tackling the problem of pendency is to
improve the efficiency of the system rather than changing the system altogether. A
significant step is to make use of the available human resource. These family
courts at Delhi are equipped with counsellors and psychologists who ensure that
the disputes are handled by experts who do not forget that while there may be core
legal issues to be dealt with; there is also a human and psychological dimension to
be dealt with in these matters. The role of the counsellors is not limited to
counselling but extends to reconciliation and mutual settlement wherever deemed
feasible.