The Constitution of India enshrines the principle of equality before law and equal protection of law.[1] Further, the preamble highlights the spirit of justice, liberty, equality and dignity guaranteed to all the citizens of India.[2] Amidst this robust framework of constitutional guarantees of gender justice, the real picture emerges out to be highly dis-satisfactory. India has long been fettered with the chains of patriarchy, women being the most oppressed in matters related to family and marriage.[3]

The Family Courts Act, 1984 allegedly came to the rescue of women, the idea being envisaged for the very first time in the 59th Law Commission Report.[4] The Act should have been enacted with the objective of bringing relief for the struggling women. However, the Act was actually enacted with the aim of safeguarding the institutions of family and marriage,[5] clearly assuming that the shielding of women’s rights and the preservation of institution of family are corresponding outcomes. This is in fact contrary to the real scenario today where maximum cases are filed because of irretrievable breakdown of marriage and when there is no possibility of preserving the family.

This apart, although there do exist commendable provisions under the Act which go in favour of women, including the adoption of inquisitorial approach instead of adversarial approach to help financially crippled women, the speedy justice system, the emphasis on reconciliation, the appointment of women judges etc.,[6] these too may backfire. The Act paves way to the following problems:

1. The reconciliation process as envisaged in Section 9,[7] may at times force women to forego the thought of separation from their husbands and return back to their matrimonial house,[8] when the actual duty of the counsellors is to ensure that the claims of women are not hidden behind the veil of reconciliation. Further, the counsellors are underprepared for handling the clients who are reluctant to attend conciliation meetings and for dealing with issues including psychological problems, superstitions, sexual matters etc.[9] In order to avoid adverse effects of conciliation process and to thoroughly prepare the counsellors for their job, there is a need to incorporate provisions in the Act for strict, proper and regular training of these counsellors.
    
2. A mere provision suggesting the appointment of woman judges is highly insufficient in the absence of its proper implementation. The Family Court judges are many a times inexperienced in family matters and in settling disputes through conciliation. In fact, in many States there is not even a single judge in family courts.[10] Thus, the Act fails to bridge the gap between the written letter of law and its actual enforcement.
    
3. The removal of lawyers from the process by virtue of Section 13,[11] creates many problems for women, who themselves have to figure out how to follow the complex court rules.[12] When women are unable to put forth their problems as effectively as an advocate can do, they are forced to take to reconciliation, many a times against their will. Women are unaware of the strategies and tactics that are to be used in order to claim their right to the matrimonial house or to prove the income of their husband so as to claim a fair maintenance.[13] Any lay man, let alone a woman, would be highly intimidated in presenting his own case before judges.
   
   Thus, some other mechanism needs to be incorporated in the Act to provide legal help to all the women litigants so as to avoid the aforesaid problems.
    
4. Even though the removal of lawyers poses a problem, it has become easy to get the permission from Courts to engage them anyway. But this benefit too is tilted towards one side i.e. of men; for many women are not financially sound enough to engage lawyers to represent their cases. So, when on one hand men are able to put forth their cases through highly experienced advocates, women have to struggle to put up a case strong enough to even be considered. By allowing legal representation irrespective of the non-existence of any special circumstance, the judges cater to the ulterior motives of, men without even giving a second thought to the plight of the women.
   
   Thus, the Act needs to restrict the powers of Courts of allowing legal representation, by clearly chalking out the instances in which the same can be done while ensuring that these instances are women-centric or at least are not prejudicial to the interests of women.
    
5. Even though the Act is a procedural law and is said to not interfere with any substantive laws, it has failed in providing a satisfactory mechanism to lend a helping hand to these substantive laws when it comes to gender justice. Although the role of procedural laws is to bring constancy in situations when there are possibilities of biasness,[14] the Act has largely been responsible for enhancing the biasness against women by adopting too informal a procedure. There exist only a few guidelines on the manner of attempting settlements in different cases,[15] which too are seldom followed.

There are multiple judicial pronouncements that evince the inefficient functioning of family courts. One of the major issues that were condemned by the Supreme Court was the uncanny attitude of judges of allowing the powerful litigants and their advocates to dominate the Court processes.[16]

The Supreme Court has portrayed unavoidable concerns regarding the unnecessary adjournments made by Courts functioning under the pressure of influential litigants,[17] to the disadvantage of the interests of women. Further, the Allahabad High Court has held that the Family Courts must adopt every possible measure to persuade the parties to negotiate and preserve their marriage.[18]

When husbands on one hand would be extremely happy to have their conjugal rights reinstated and to not pay maintenance, wives on the other hand would be pushed back to their agony and their financial dependence on their husbands. What good is this for women then? Does the Act really promote gender justice? These are the pertinent questions that cross our minds.

Although the position that the passing of the Family Courts Act, 1984 was a huge step towards promoting gender justice is not untrue, the lack of implementation and thoughtful amendments to the Act have rendered the Act to cause irreparable damages.

In order to avoid any further damages and to promote gender justice, there is a need to establish a High Level Committee having a maximum of female members, to analyse in depth the struggles of women, and recommend necessary amendments to the Act. Every State shall establish independent inspection teams to examine all the family courts and analyse as to whether or not the provisions of the present Act are actually being implemented. It is high time to help the women of the country to emerge out of their unending adversities, by crushing and overcoming every possible impediment that might come in their way.

End-Notes:

1. India Const. art. 14.
2. The Family Courts Act, No. 66 of 1984, India Code, Preamble (1984).
3. D.Nagasalia, The Family Court: A step backward, The Hindu (Mar. 24, 1991).
4. Family Courts in India: An Analysis, Shodhganga, https://shodhganga.inflibnet.ac.in/bitstream/10603/166330/1/10_chapter3.pdf.
5. Working of Family courts in India, N.C.W., http://ncwapps.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf.
6. Gender Justice in Family Courts, Shodhganga, https://shodhganga.inflibnet.ac.in/bitstream/10603/166330/1/10_chapter3.pdf.
7. The Family Courts Act, No. 66 of 1984, India Code, § 9 (1984).
8. Sujata Sriram & Chetna Duggal, The Family Courts Act in India: Perspectives from Marriage Counsellors, 4 I.L.S.L.S. 97, 101 (2015).
9. Id, at 102.
10. Namita Singh Jamwal, Have Family Courts lived up to Expectations?, Mainstream Weekly (Mar. 7, 2009),  https://www.mainstreamweekly.net/article1205.html.
11. The Family Courts Act, No. 66 of 1984, India Code, § 13 (1984).
12. Working of Family Court in India, National Commission for Women, http://ncwapps.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf.
13. Id.
14. D. Nagasaila, Family Courts: A Critiqie, 27 Econ. Political Wkly 1735, 1736 (1992).
15. Daniel Mathew, Arriving at a Settlement Under Family Courts Act, 1984: Deconstructing the Role of the Judge of the Family Court and Counselor, 56 J.I.L.I. 376, 377 (2014).
16. A.K.A. Rahmaan, Family Courts – Evidence, Procedures and Role of Lawyers, http://www.tnsja.tn.gov.in/article/06%20Family%20Courts%20Evidence%20practice%20and%20procedure.pdf.
17. Shamima Farooqui v. Shahid Khan, (2015) 5 Supreme Court Cases 705.
18. Gurubachan Kaur v. Preetam Singh, AIR (1998) All 140.
    
    Written By: Ms.Malika Tiwari
    
    

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