Introduction

Family holds a very significant place in the context of Indian society. India is a country where diverse religious and cultural norms are practiced and to protect the interest of various religious sects, different laws are laid down for them. For instance, Hindu law governs all Hindus including Sikhs, Buddhists, and Jains. Muslim law, Christian law, and Parsi law govern the Muslims, Christians, and Parsis respectively. So, they are governed by specific personal laws with respect to family matters. 

Due to changing cultural, social, economic, and legal norms, there has been a paradigm shift from the traditional joint family system to the nuclear family system and all these changes pose a challenge for the family system in India. There is an inter-relation between the family matters, personal laws, and religion in India. In this blog, we are going to discuss family law and the family court system that exists in India.

Historical Background

Vedic ages mark the beginning of India’s cultural, social, and legal history. During the Indus Valley Civilization and the Bronze Age, the civil laws system was developed in India. In India, the law is a matter of religious prescriptions and philosophical discourse in the illustrious history. Emanating from the Vedas, the Upanishads, and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by Jains and Buddhists. 

Family is the most fundamental unit in every human society, the community around the globe.[1] The institution of family can be traced back to the beginning of human life where people associated themselves with other humans in order to get social, physical, emotional, and community support, and therefore institutions of family and marriage are considered to be the oldest institutions in society. Family is a major source of nurture, emotional bonding, and socialization. In family, marriage is a governmentally, socially, or religiously recognized interpersonal relationship.[2]

Family Law 

The word ‘Family’ is derived from the Latin word ‘Famulus’ which means a servant. In Roman Law, the word denoted a group of producers and slaves and other servants as well as members connected by common descent or marriage.[3] Thus originally, the family consists of a man and a woman with a child or children and servants.

 Family law is a branch of law that deals with issues relating to family matters like marriage, divorce, adoption, alimony, child custody. Inheritance etc. The prima facie objective of this area of law is to ensure the smooth functioning of the institution of family in our society, it tries to protect the interest of different individuals by granting them certain rights in order to maintain their dignity and status in society.

In India marriage and divorce are governed under specific acts and laws that have been laid down for different religious groups like the Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, The Special Marriage Act 1954, The Indian Christian Marriage Act, 1872, The Indian Divorce Act, 1869, The Dissolution of Muslim Marriage Act, 1939

The Special Marriage Act, 1954 is applicable throughout India, even people belonging to different religious groups can register their marriage under this act, who are governed by The Special Marriage Act, 1954. Under this Act, if a marriage is celebrated by way of any other form, it can also be registered under The Special Marriage Act, if it fulfills the requirements of the given Act. Customary laws that are prevalent among the Hindus have been codified by enacting the Hindu Marriage Act, 1955. The Hindu Marriage act extends to the whole of India and also to those who are outside the said territory. This act governs Hindus including the Buddhists, Sikhs, Jains, and even to those who are not Jews, Muslims, Parsis and Christians. Although the given act does not apply to people belonging to scheduled tribes unless it is notified by the Central Government.

Not all marriages function smoothly, so sometimes matrimonial disputes may lead to divorce. Divorce is a procedure that brings the marriage to an end and it can be sought on the grounds of desertion, cruelty, bigamy and other grounds that have been laid down in section 13 of the Hindu Marriage Act.

Family Court System

Family Courts are established under The Family Courts Act, 1984 to ensure speedy trials, resolve disputes related to family matters. These courts follow the Civil Procedure Code and deal with matters like matrimonial disputes, alimony, child adoption and custody, inheritance. An additional District Judge presides over the trials, reviews the evidence that is presented before these courts. The family law courts are vested with the power to lay down their own rules of functioning and these rules override the provisions of the Civil Procedure Code. The initial objective of the court is to solve the dispute via conciliation or mediation which helps to solve the case by mutual consent of the parties and these methods also help to save precious time of both the courts as well as the parties. By way of mediation and conciliation, the court offers the parties a common platform to solve their disputes out of court in order to avoid complexities involved in family court cases. 

Few peculiar aspects regarding the family courts are that all the cases of family disputes are initially referred for conciliation, which is done by professionals appointed by the courts and later on if the result of conciliation is not successful, then only the case is tried before the court, there is no compulsion regarding the recording of evidence, an appeal to the High Court can be filed within thirty days from the date the judgment was passed by the Family Court, in-camera proceedings may be conducted at the will of the parties.

The High Court advises the State Governments regarding the number of officers, employees and counselors that are required to assist the family courts and the high court provides the family courts with counselors and employees as per the requirements of these courts. The State Government lays down the rules which specify the terms and conditions concerning the officers and counselors that are to be employed in order to assist the Family Courts.

Family Courts also deal with the suits relating to granting of a decree for judicial separation, restitution of conjugal rights, divorce, issues pertaining to maintenance of children and women, passing an order of injunction in cases of matrimonial disputes, disputes arising out of property-related matters, determining the legitimacy of a person, custodial rights of a minor or child.

Conclusion 

Today, the institution of family and marriage are becoming unstable and complex day by day as the members of these institutions are aware and careful about their duties and responsibilities. The basics of a family such as interaction, bonding, role functioning have been disrupted due to rapid social, economic, cultural and physical changes. Family is considered one of the principal social institutions in our society but due to globalization and the increasing effect of westernization, it has lost its sanctity. Technological developments and industrialization combined with forces of the market economy have put forth various challenges to the Indian family system but these global challenges have led to the emergence of a dynamic family institution that is adapted to changing social, economic, political and cultural norms.

As we have already discussed that the State governments have the power to frame laws regarding the family matters but this procedure often leads to chaos, so there is a need to lay down a Uniform Civil Code which will govern all the religious groups on an equal basis and this step will subsequently help to promote equality and eradicate religion-based discrimination.


[1] John DeFrain, “Creating a Strong Family: Why Are Families So Important?” Historical Materials from the University of Nebraska-Lincoln Extension. Paper 343,2001, http://digitalcommons.unl.edu/extensionhist/343, (last accessed on 10 September 2020)

[2] ibid

[3] Sanjay Bhattacharya, Social Work: Interventions and Management, Deep and Deep Publications, New Delhi, 2008, p.3.

Bhavik Jain

He is a third year student, pursuing his B.A. LL.B.(Hons.) from Rajiv Gandhi National University of Law, Punjab. He has participated as a researcher in several Moot Court competitions and won best researcher award as well.  His interest areas include criminal law and constitutional law.

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