(No.66 of 1984)[14th September, 1984]
An Act to provide for the establishment of Family Courts with a
view to promote conciliation in, and secure speedy settlement of, disputes
relating to marriage and family affairs and for matters connected therewith
Be it enacted by Parliament in the Thirty-fifth Year of the
Republic of India as follows:
CHAPTER I
Preliminary
1. Short
title, extent and commencement.- (1) This Act may be called the Family Courts Act, 1984.(2) It extends to the whole of India except the State of Jammu
and Kashmir.(3) It shall come into force on such date as the Central Government
may, by notification in the Official Gazette, appoint, and different dates may
be appointed for different States.
2.
Definitions.-
In this Act, unless the context otherwise requires,(a) "Judge" means the Judge
or, as the case may be, the Principal Judge, Additional Principal Judge or
other Judge of a Family Court;(b) "notification" means a notification published
in the Official Gazette;(c) "prescribed" means prescribed by rules made under
this Act;(d) "Family Court" means a Family Court established under Sec.3;(e)
all other words and expressions used but not defined in this Act and defined in
the Code of Civil Procedure, 1908(5 of 1908), shall have the meanings
respectively assigned to them in that Code.
CHAPTER II
Family Courts
3.
Establishment of Family Courts.-
(1) For the purpose of exercising the jurisdiction and powers conferred on a
Family Court by this Act, the State Government after consultation with the High
Court, and by notification,-(a) shall, as soon as may be after the commencement
of this Act, establish for every area in the State comprising a city or town
whose population exceeds one million, a Family Court;(b) may establish Family
Courts for such other areas in the State as it may deem necessary.
(2) The State Government shall, after consultation with the High Court specify,
by notification, the local limits of the area to which the jurisdiction of a
Family Court shall extend and may, at any time, increase, reduce or alter such
limits.
4.
Appointment of Judges.- (1) The State Government may, with the concurrence of the High Court appoint one or more persons to be the Judge or Judges, of a
Family Court.
(2) When a Family Court consists of more than one Judge-
(a) each of the Judges may exercise all or any of the powers conferred on the
Court by this Act or any other law for the time being in force;
(b) the State Government may, with the concurrence of the High Court, appoint
any of the Judges to be the Principal Judge and any other Judge to be the
Additional Principal Judge;
(c) the Principal Judge may, from time to time, make such arrangements as he
may deem fit for the distribution of the business of the Court among the
various Judges thereof;
(d) the Additional Principal Judge may exercise the powers of the Principal
Judge in the event of any vacancy in the office of the Principal Judge or when
the Principal Judge is unable to discharge his functions owing to absence,
illness or any other cause.(
3) A person shall not be qualified for appointment as a Judge unless he-(a) has
for at least seven years held a Judicial office in India or the office of a
member of a tribunal or any post under the Union or a State requiring special
knowledge of law; or
(b) has for at least seven years been an advocate of a High Court or of two or
more such Courts in succession; or
(c) possesses such other qualification as the Central Government may. with the
concurrence of the Chief Justice of India, prescribe.
(4) In selecting persons for appointment as Judges-(a) every endeavour shall be
made to ensure that persons committed to the need to protect and preserve that
institution of marriage and to promote the welfare of children and qualified by
reason of their experience and expertise to promote the settlement of disputes
by conciliation and counselling are selected; and
(b) preference shall be given to women.
(5) No person shall be appointed as or hold the office of, a Judge of a Family
Court after he has attained the age of sixty-two years.
(6) No salary or honorarium and other allowances payable to, and the other
terms and conditions of service of, a Judge shall be such as the State
Government may, in consultation with the High Court, prescribe.
5.
Association of social welfare agencies, etc.-
The State Government may, in consultation with the High Court, provide. by rules, for the association, in such manner and for such purposes and subject
to such conditions as may be specified in the rules, with a Family Court of-(a)
institutions or organisations engaged in social welfare or the representatives
thereof;(b) persons professionally engaged in promoting the welfare of the
family;(c) persons worklng in the field of social welfare; and(d) any other
person whose association with a Family Court would enable it to exercise its
jurisdiction more effectively in accordance with the purposes of this Act.
6.
Counsellors, officers and other employees of
Family Courts.- (1) The State Government shall, in consultation with the High Court, determine the number and categories of counsellors, officers and
other employees required to assist a Family Court in the discharge of its
functions and provide the Family Court with such counsellors, officers and
other employees as it may think fit.
(2) The terms and conditions of association of the counsellors and the terms
and conditions of service of the officers and other employees. referred to in
sub-section (1), shall be such as may be specified by rules made by the State
Government.
CHAPTER III
Jurisdiction
7.
Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall-(a) have and exercise all thejurisdiction exercisable by any
district Court or any subordinate Civil Court under any law for the time being
in force in respect of suits and proceedings of the nature referred to in the
Explanation; and(b) be deemed, for the purposes of exercising such jurisdiction
under such ~w, to be a district Court or, as the case may be. such subordinate
Civil Court for the area to which the jurisdiction of the Family Court
extends.Explanation.-The suits and proceedings referred to in this subsection
are suits and proceedings of the following nature, namely:
(a) a suit or proceeding between the parties to a marriage for
decree of a nullity marriage (declaring the marriage to be null and void or, as
the case may be, annulling the marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the valldity of a marriage or
as to the matrimonial statu
s of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the
property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising
out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the
custody of, or access to, any minor.
(2) Subject to the other provisions of this Act a Family Court
shall also have and exercise;
(a) the jurisdiction exercisable by a Magistrate of the first class under
Chapter IX (relating to order for maintenance of wife, children and parents) of
the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
8. Exclusion
of jurisdiction and pending proceedings.-
Where a Family Court has been established for any area:
(a) no district Court or any subordinate Civil Court referred to in sub-section
(1) of Sec. 7 shall, in relation to such area, have or exercise any
jurisdiction in respect of any suit or proceeding of the nature referred to in
the Explanation to that sub-section;
(b) no Magistrate shall, in relation to such area, have or exercise any
jurisdiction or powers under Chapter IX of the C9de of Criminal Procedure, 1973
(2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to
sub-section (1) of Sec. 7 and every proceeding under Chapter IX of the Code of
Criminal Procedure, 1973(2 of 1974)-
(i) which is pending immediately before the establishment or such Family Court
before district Court or subordinate Court referred to in that sub-section or,
as the case may be, before any Magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such
Family Court if, before the date on which such suit or proceeding was
instituted or taken, this Act has come into force and such Family Court had
been established,shall stand transferred to such Family Court on the date on
which it is established;
CHAPTER IV
Procedure
9. Duty of
Family Court to make efforts for settlement.-
(1) In every suit or proceeding, endeavour shall be made by Family Court in the first instance, where it is possible to do so consistent with the nature
and circumstances of the case, to assist and persuade the parties in arriving
at a settlement in respect of the subject-matter of the suit or proceeding and
for this purpose a Family Court may, subject to any rules made by the High
Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court
that there is a reasonable possibility of a settlement between the parties. the
Family Court may adjourn the proceedings for such period as it thinks fit to
enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in
derogation of, any other power of the Family Court. to adjourn the proceedings.
10.
Procedure generally.-
(1) Subject to the other provisions of this Act and rules, the provisions of
the Code of Civil Procedure, 1908(5 of 1908), and of any other law for the time
being in force shall apply to the suits and proceedings other than the
proceedings under Chapter IX of the Code of Criminal Procedure, 1973(2 of
1974), before a Family Court and for the purpose of the said provisions of the
Code, a Family Court shall be deemed to be a Civil Court and shall have all the
powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions
of the Code of Criminal Procedure, 1973 (2 of 1974), or the rules made
thereunder, shall apply to the proceedings under Chapter IX of the Code before
a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court
from laying down its own procedure with a view to arrive at a settlement in
respect of the subject-matter of the suit or proceedings or at the truth of the
facts alleged by the one party and denied by the other.
11.
Proceedings to be held in camera.- In every suit or proceedings to which the Act applies, the proceedings may be held in camera if the Family Court so
desires and shall be so held if either party so desires.
12.
Assistance of medical and welfare experts.-
In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where
available), whether related to the parties or not, including a person
professionally engaged in promoting the welfare of the family as the Court may
think fit, for the purposes of assisting the Family Court in discharging the
functions imposed by this Act.
13. Right to
legal representation.- Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of
right to be represented by a legal practitioner:Provided that if the Family
Court considers it necessary in the interest of justice, it may seek the
assistance of a legal expert as amicus curiae.
14.
Application of Indian Evidence Act,
1872.-
A Family Court may receive as evidence any report, statement, documents,
information or matter that may, in its opinion. assist it to deal effectually
with a dispute, whether or not the same would be otherwise relevant or
admissible under the Indian Evidence Act, 1872 (1 of 1872).
15. Record
of oral evidence.-
In suit or proceedings,before a Family Court, it shall not be necessary to
record the evidence of witnesses at length, but the Judges as the examination
of each witness proceeds, shall, record or cause to be recorded, a memorandum
of the substance of what the witness deposes, and such memorandum shall be
signed by the witness and the Judge and shall form part of the record.
16. Evidence
of formal character on affidavit.-
(1) The evidence of any person where such evidence is of a formal character,
may be given by affidavit and may subject to all just exceptions, be read in
evidence in any suit or proceeding before a Family Court.2) The Family Court
may, if it thinks fit, and shall, on the application of any of the parties to
the suit or proceeding summon and examine any such person as to the facts
contained in his affidavit.
17.
Judgment.-
Judgment of a Family Court shall contain a concise statement of the case, the
point for determination, the decision thereon and the reasons for such
decision.
18.
Execulion of decrees and orders.- (1) A decree or an order (other than an order under Chapter Ix of the Code of Criminal Procedure, 1973, (2 of 1974),
passed by a Family Court shall have the same force and effect as a decree or
order of a Civil Court and shall be executed in the same manner as is
prescribed by the Code of Civil Procedure, 1908 (5 of 1908), for the execution
of decrees and orders.(2) An order passed by a Family Court under Chapter IX of
the Code of Criminal Procedure 1973, (2 of 1974), shall be executed in the
manner prescribed for the execution of such order by that Code.(3) A decree or
order may be executed either by the Family Court which passed it or by the
other Family Court or ordinary Civil Court to which it is sent for execution.
CHAPTER V
Appeals and Revisions
19. Appeal.-
(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908(5 of 1908), or in the Code of
Crtminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie
from every judgment or order, not being an interlocutory order of a Family
Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with
the consent of the parties or from an order passed under Chapter Ix of the Code
of Criminal Procedure, 1973 (2 of 1974):Provided that nothing in this
sub-section shall apply to any appeal pending before a High Court or any order
passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),
before the commencement of the Family Courts (Amendment) Act, 1991.
(3) Every appeal under this section shall be preferred within a period of
thlrty days from the date of the judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine
the record of any proceeding in which the Family Court situate within its
jurisdiction passed an order under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the
correctness, legality or propriety of the order, not being an interlocutory
order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any
judgment, order or decree of a Family Court.
(6) An appeal referred under sub-section (1) shall be heard by a Bench
consisting of two or more Judges.
CHAPTER VI
Miscellaneous
20. Act to
have overriding effect.-
The provisions of this Act shal] have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force
or in any instrument having effect by virtue of any law other than this Act.
21. Power of
High Court to make rules.- (1) The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out
the purposes of this Act.
(2) In particular. and without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the following matters
namely:(a) normal working hours of Family Courts and holding of sittings of
Family Courts on holidays and outside normal working hours;(b) holding of
sittings of Family Courts at places other than the ordinary places of
sitting:(c) efforts which may be made by, and the procedure which may be
followed by, a Family Court for assisting and persuading parties to arrive at a
settlement.
22. Power of
the Central Government to make rules.-
(1) The Central Government may, with the concurrence of the Chief Justice of
India, by notification, make rules prescribing the other qualifications for
appointment of a Judge referred to in Cl.(c) of sub-section (3) of Sec.4.(2)
Every rule made under this Act by the Central Government shall be laid, as.
soon as may be after it is made. before each House of Parliament, while it is
in session, for a total period of thirty days which may be comprised in one
session or in two or more successive sessions and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid,
both Houses agree in making any modification in the rule or both Houses agree
that the rule should not be made, the rule shall thereafter have effect only in
such modified form or of no effect, as the case may be; so, however, that any
such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
23. Power of
the State Government to make rules.-
(1) The State Government may, after consultation with the High Court, by
notification make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the provisions of
sub-section (1), such rules may provide for all or any of the following
matters, namely:
(a) the salary or honorarium and other allowances payable to, and the terms and
conditions of Judges under sub-section (6) of Sec. 4;
(b) the terms and conditions of association of counsellors and the terms and
conditions of service of the officers and other employees referred to in Sec.
6;
(c) payment of fees and expenses (including travelling expenses) of medical and
other experts and other persons referred to in Sec. 12 out of the revenues of
the State Government and the scales of such fees and expenses;
(d) payment of fees and expenses to legal practitioners appointed under Sec. 13
as amicus curiae out of the revenues of the State Government and the
scales of such fees and expenses;
(e) any other matter which is, required to be, or may be, prescribed or
provided for by rules.
(3) Every rule made by a State Government under this Act shall
be laid, as soon as may be after it is made, before the State Legislature.
