The Constitution of India enshrines the principle of equality before law and
equal protection of law.ï¿½Further, the preamble highlights the spirit of
justice, liberty, equality and dignity guaranteed to all the citizens of
India.ï¿½Amidst 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.
The Family Courts Act, 1984 allegedly came to the rescue of women, the idea
being envisaged for the very first time in the 59thï¿½Law Commission
Report.ï¿½The 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,ï¿½clearly assuming
that the shielding of womenï¿½s 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.,ï¿½these too may backfire. The Act paves way to the following problems:
- The reconciliation process as envisaged in Section 9,ï¿½may at times
force women to forego the thought of separation from their husbands and
return back to their matrimonial house,ï¿½when 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.ï¿½In 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.
- 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.ï¿½Thus, the Act fails to bridge the gap
between the written letter of law and its actual enforcement.
- The removal of lawyers from the process by virtue of Section
13,ï¿½creates many problems for women, who themselves have to figure out
how to follow the complex court rules.ï¿½When 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.ï¿½Any 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.
- 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
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.
- 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,ï¿½the 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,ï¿½which too are
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.
The Supreme Court has portrayed unavoidable concerns regarding the unnecessary
adjournments made by Courts functioning under the pressure of influential
litigants,ï¿½to 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.
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
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.
- India Const. art. 14.
- The Family Courts Act, No. 66 of 1984,ï¿½India Code,ï¿½Preamble (1984).
- D.Nagasalia,ï¿½The Family Court: A step backward,ï¿½The Hinduï¿½(Mar. 24,
- Family Courts in India: An Analysis,ï¿½Shodhganga,ï¿½https://shodhganga.inflibnet.ac.in/bitstream/10603/166330/1/10_chapter3.pdf.
- Working of Family courts in India, N.C.W., http://ncwapps.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf.
- Gender Justice in Family Courts,ï¿½Shodhganga, https://shodhganga.inflibnet.ac.in/bitstream/10603/166330/1/10_chapter3.pdf.
- The Family Courts Act, No. 66 of 1984,ï¿½India Code,ï¿½ï¿½ 9ï¿½(1984).
- Sujata Sriram & Chetna Duggal,ï¿½The Family Courts Act in India:
Perspectives from Marriage Counsellors, 4 I.L.S.L.S. 97, 101 (2015).
- Id,ï¿½at 102.
- Namita Singh Jamwal,ï¿½Have Family Courts lived up to Expectations?,
Mainstream Weekly (Mar. 7, 2009), ï¿½https://www.mainstreamweekly.net/article1205.html.
- The Family Courts Act, No. 66 of 1984,ï¿½India Code,ï¿½ï¿½ 13ï¿½(1984).
- Working of Family Court in India,ï¿½National Commission for Women, http://ncwapps.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf.
- D. Nagasaila,ï¿½Family Courts: A Critiqie,ï¿½27 Econ. Political Wkly 1735,
- Daniel Mathew,ï¿½Arriving 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).
- A.K.A. Rahmaan,ï¿½Family Courts ï¿½ Evidence, Procedures and Role of
- Shamima Farooqui v. Shahid Khan, (2015) 5 Supreme Court Cases 705.
- Gurubachan Kaur v. Preetam Singh, AIR (1998) All 140.
Written By: Ms.Malika Tiwari
Authentication No: AG30823294647-18-820