Day 8 – Q 2.What are family courts? How do they function? Are they an effective alternate dispute resolution forum? Examine.

2. What are family courts? How do they function? Are they an effective alternate dispute resolution forum? Examine. 

फैमिली कोर्ट क्या हैं? वे कैसे कार्य करते हैं? क्या वे एक प्रभावी वैकल्पिक विवाद समाधान फोरम हैं? जांच करें?

Introduction

The Family Courts Act, 1984 provides for establishment of Family Courts by the State Governments in consultation with the High Courts with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs

Body

Main features:

• 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. 
• To tackle the problem of pendency by improving the efficiency of the system, where courts are equipped with counselors and psychologists to ensure 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.
• It is mandatory for the State Government to set up a Family Court for every area in the State comprising a city or a town whose population exceeds one million.

Functioning:

• Own rules– The Family Courts are free to evolve their own rules of procedure, which over ride the rules of procedure contemplated under the Code of Civil Procedure.
• Conciliation– Special emphasis is put on settling the disputes by mediation and conciliation, when the matter is solved by an agreement between both the parties, it reduces the chances of any further conflict.
• Away from legal system– The cases are kept away from the trappings of a formal legal system, which can be a very traumatic experience for the families and lead to personal and financial losses that can have a devastating effect on human relations as well.
• No legal representation– A party is not entitled to be represented by a lawyer without the express permission of the Court. 
• Appointment of experts– Conciliators are professionals who are appointed by the Court. 
• Method– The proceedings before the Family Court are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court.
• Appeal– Once a final order is passed, the aggrieved party has an option of filing an appeal before the High Court.

Effective alternate dispute resolution forum:

• Reduce workload on the courts and ensure speedy disposal of cases
• Provides confidentiality for family matters.
• Reverberations of a family dispute are felt in society. Their effective resolution by mediation or conciliation may provide lasting solutions for overall good.
• The Mediation Cell of the Punjab and Haryana High Court, which attempts to patch up matrimonial disputes is a successful example.

Issues:

• Continuity– No fixed tenure for counselors. For example, in the family courts at Tamil Nadu, the counselors are changed every three months. Thus, when cases stretch for a period of time which is longer than this, the aggrieved person has to adjust with new counselors and their story has to be retold several times.
• Less power– It doesn’t explicitly empower Courts to grant injunctions to prevent domestic violence.
• Not perceived well– Since the Family Court has restrictive jurisdiction and does not have the power to decide issues of contempt, people do not seem to take the court as seriously as they would a magistrate or a city civil court.
• Lack of uniformity– Different High Courts have laid down different rules of the procedure, which is one of the reasons behind the fact that family disputes are still being heard by civil courts. 
• No legal representation– Parties are not entitled as of right to be represented by a legal practitioner. The fact that the proceedings are conciliatory does not relieve them of the complicated legal issues which may be involved in the family dispute.

Conclusion

Family courts have enabled to take out the burden from courts and preserve the sanctity of family as a unit. Need is to empower these further and develop the necessary infrastructure.