FAMILY LAW & ITS ANALYSIS / FUTURE FOR LAWYERS IN 2024

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BACKGROUND FAMILY LAW

The primary impetus for the creation of family courts was the growing calls from various women's groups, welfare agencies, and private citizens for the creation of special courts in order to offer a venue for the swift resolution of family-related conflicts. The use of non-adversarial techniques to settle family conflicts, encourage conciliation, and ensure the prompt resolution of marital and family-related issues was emphasized.

The Committee on the Status of Women suggested in 1975 that every issue pertaining to the family be handled independently. The Law Commission also emphasized in its 59th report (1974) that when handling family-related disputes, the court should take drastic measures that set them apart from the current standard civil proceedings and that these courts should attempt to reach a reasonable settlement before the trial begins. All family-related matters should be heard by gender-sensitive professionals, such as judges, social workers, and other qualified staff, and their resolution should be achieved by doing away with strict procedural norms. A unique process is to be followed in lawsuits or actions pertaining to family concerns, according to an amendment to the Code of Civil process. But the adversarial process still applies, and family conflicts are handled by the courts in the same way as other civil cases. Therefore, there was a strong need to establish family courts in the public interest to facilitate the prompt resolution of family issues.

The wave of legal reforms pertaining to women included the 1984 passage of the Family Courts Act. On September 14, 1984, the President signed the Family Courts Act into law. A commencement clause in the Act allows the Central Government to enact the Act in a State by publishing a notification in the Official Gazette; various dates may be designated for various States. Six chapters, including Preliminary, Family Courts, Jurisdiction, Procedure, Appeals and Revisions, and Miscellaneous, are included in this Act.

According to Section 3 of the Act, any State government that includes a city or town with a population of more than one million is authorized to create, following consultation with the High Court, of a family? court .

The requirements for appointing a Family Court Judge are identical to those for appointing a District Judge, with seven years of judicial experience or seven years of advocacy practice. The Central Government has the authority to enact regulations establishing additional requirements. With the exception of defining the requirements for Family Court judges, the Central Government is not involved in the administration of this Act. Various High Courts have established varying procedural norms. But there has been a sense that a unified set of regulations is required.

According to the Act, those nominated to the family courts must be dedicated to upholding the institution of marriage and encouraging the use of mediation and counseling as a means of resolving conflicts. Additionally, women would be given preference when appointed to Family Court Judge positions. In order for the Family Courts to carry out its mandate, the State Government may collaborate with organizations that support the welfare of families—particularly those headed by women and children—or that operate in the social welfare sector by allowing them to do so under Section 5.

According to Section 6, the State Governments must also decide how many counselors, officers, and other support staff the Family Courts would need. Section 7 grants all family courts the authority and jurisdiction that any District Court or lower civil court may exercise in lawsuits and other procedures of the kind mentioned in the Act's explanation of section 7(1). These include, among other things, lawsuits brought by married couples against one another, requests for a ruling on the legality of marriages, and disagreements over the parties' respective property, maintenance, guardianship, and other matters. Furthermore, the authority that a First Class Magistrate may exercise with relation to an order for support for a wife, children, or parent under Chapter IX of the Cr.PC.

Additionally, there is an enabling provision that allows the family courts to use any additional authority that may be granted to them by another law. Additionally, it has been provided that other courts' jurisdiction over cases for which the family court has authority would be excluded.

The Act's Chapter IV addresses how the family court makes decisions on matters that come before it (sec. 9). These courts now have a duty to ensure that the parties are helped and convinced to reach a settlement, and they have been given permission to do so by adhering to the protocol established by the High Court through regulations that it will create. The family court has the authority to postpone the proceedings until the parties reach a settlement if there is a chance for settlement and there is some delay in doing so.

Different High Courts have established various procedural guidelines under these laws for the resolution of disputes by the family courts. According to the Madhya Pradesh High Court's guidelines, the family court judge participates in the settlement process as well. If a settlement cannot be achieved, a normal trial is held. Additionally, it states that if the family court or any party requests it, the proceedings may take place behind closed doors. Additionally, the family court now has the authority to call in legal and welfare specialists for support. According to Section 13, a party appearing in Family Court does not automatically have the right to legal representation.

Nonetheless, the court may appoint an amicus curiae to help in the interest of justice. Affidavits can also be used as evidence, and the family court has the authority to call witnesses and question them about the information they provide. The family court's ruling is clear-cut and straightforward, outlining the decision's basis and points of contention. The Family Court's decree may be carried out in line with the requirements of the Cr.P.C. or, depending on the situation, the CPC. The High Court hears appeals against family court rulings and orders.

The Act grants the High Courts the authority to establish guidelines that the family courts must adhere to when reaching decisions about settlements and other issues. The Central Government now has the authority to establish regulations outlining further requirements for the nomination of family court judges. The State Government is also authorized to enact regulations covering a variety of procedural issues, such as the pay of family court judges and the terms and conditions under which counselors are employed. The Act was designed to make it easier for family conflicts to be satisfactorily resolved through a forum, and it was envisaged that this forum would operate quickly, justly, and with an attitude that would maximize society's welfare and women's dignity.

However, "family" is not defined under the Act. Family courts do not have jurisdiction over issues like testamentary concerns that have significant financial ramifications for the family. The family courts handle only problems pertaining to women and children, such as divorce, maintenance, adoption, etc. Additionally, the Act combined criminal and civil authority under one roof. The decision to consolidate all lawsuits pertaining to women was viewed as a good one. Second, applications to a civil court were processed more quickly due to the structure of criminal courts. Thirdly, there was a sense of gravity and terror attached to a criminal court that would be favourable to women.

Additionally, the Act combined the jurisdiction of around forty judges and at least two courts from the city civil court into five Mumbai courtrooms. The State Government was given the authority to establish the procedural regulations, even if the Act established the general parameters. But the majority of state governments did not bother establishing family courts or defining the regulations. Karnataka and Rajasthan were the first two states to establish household courts. However, campaigners and female plaintiffs gradually lost faith in the way the legal system operated. With a few small exceptions, the general circumstances are the same worldwide.

In Tamil Nadu, the marital counselors rotate every three months, forcing the lady to recount her issues to each one, leading to a lack of continuity in the conversation. In Maharashtra, the Family Courts Rules were established in 1987. They go into great detail on the purpose and involvement of marriage counselors in family courts. In actuality, this topic is covered in 27 of the 37 parts. Marital counsellors now have extensive powers, such as the ability to visit clients' homes, inquire about their children's relationships and level of living, and get information from employers.

Although there are rare and sensitive marriage counselors who use this power for the benefit of women, these counselors’ primary commitment is to uphold the institution of marriage, so these counselors’ powers are more frequently used against women in the interest of the family. Furthermore, courts are not required to follow the reports that marriage counselors create based on their investigations. The marriage counselors report is kept private and isn't brought up for cross-examination. Following the initial consultation with the marriage counselor, the case would continue in accordance with the Code of Civil Procedure guidelines. The regulations mimic the Code of Civil Procedure, with the small addition that parties must be present in person, rather than streamlining the process.

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Critical Analysis /Suggestions

In order to facilitate mediation and provide a prompt resolution of conflicts pertaining to marriage, family matters, and related subjects, the Family Courts Act of 1984 was passed. The goal of eliminating gender bias in statutory legislation remains unfulfilled despite this attempt. The family courts' mechanisms need to create procedures and systems, maybe with the aid of civil society groups, to make sure that crimes against women are kept to a minimum in the first place.

Women's groups should be allied with family courts to provide advise on gender-related topics. Action forums in the framework of family courts has to be started and expanded by adding members from NGOs, elected officials, and agencies like Urban Community Development that are actively involved. Monitoring systems at the state level may be put in place to examine how the family courts handle cases involving women and their outcomes. It is appropriate to designate women judges and judges with knowledge and experience in resolving family conflicts.

These special courts have to have the power to hear cases against defendants even in situations when the female victim is adamant about dropping her complaint or is unwilling to testify. It is not advisable to often switch out the marriage counsellors since it might be difficult for women to communicate their issues to new counsellors on a regular basis.

The Court Fees Act's requirements must be removed from family courts that are dedicated to streamlining their processes. There shouldn't be an extra court cost for each new relief.

To start, one may give an example of how procedural errors have reduced the family court's goal. There is now no established rule that specifies the format for summonses, interim applications, etc. Even though attorneys are not permitted to represent clients, many nonetheless follow the Civil Procedure Code's style, which includes phrases like "Council can be heard by; Counsel for the Petitioner."

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FAMILY LAW IN 2024 ANALYSIS :-

Predicting the future of family law in India for lawyers in 2024 involves considering ongoing trends and potential developments. Here are some possible areas of focus and changes that family lawyers in India might experience:

1.???? Digitization of Legal Processes: The legal system in India is gradually adopting digital technologies. In 2024, family lawyers may see increased use of online platforms for case filing, document submissions, and even virtual court proceedings. This could enhance efficiency but also pose challenges related to cybersecurity and access to technology.

2.???? Emphasis on Mediation and Alternative Dispute Resolution (ADR): There could be a continued emphasis on resolving family disputes through mediation and ADR mechanisms. This approach aligns with efforts to reduce the burden on traditional courts and promote faster, more amicable resolutions in family matters.

3.???? Gender Equality and Women's Rights: As societal attitudes continue to evolve, family laws in India may see further adjustments to promote gender equality and protect women's rights. This could include changes in alimony and maintenance laws, as well as enhanced legal mechanisms to address issues like domestic violence and marital rape.

4.???? Modernization of Inheritance Laws: Inheritance laws in India have been undergoing reforms, aiming to provide more equitable distribution of assets. Family lawyers may need to stay updated on changes in succession laws and their implications for clients.

5.???? International Family Law: With increased globalization, international family law issues may become more common. Lawyers may encounter cases involving cross-border marriages, divorces, child custody disputes, and the recognition of foreign judgments. Familiarity with international legal frameworks will be essential.

6.???? Adoption and Surrogacy Regulations: Family lawyers might need to navigate evolving laws related to adoption, surrogacy, and assisted reproductive technologies. The legal landscape surrounding these issues is dynamic, and changes may impact the procedures and rights of individuals involved in such processes.

7.???? Focus on Child Rights and Welfare: The best interests of the child are a central consideration in family law matters. Lawyers may find a heightened focus on child custody arrangements, visitation rights, and parental responsibilities. Child protection laws may also undergo revisions to ensure the well-being of children in family disputes.

8.???? Ethical Considerations and Professional Standards: There may be increased scrutiny on the ethical conduct of family lawyers. Adherence to professional standards and ethical considerations in handling sensitive family matters could become even more crucial.

It's important for family lawyers in India to stay abreast of legislative changes, court decisions, and societal trends that impact family law. Continuing legal education and staying connected with professional networks will be essential for navigating the evolving landscape of family law in India.

BY : ADV. ARUNODAY DEVGAN