PROJECT REPORT ON FAMILY LAW

PROJECT REPORT ON family courts act and Indian divorce act

2018-2019

NAME- Nikhil KUMAR

B.A.LL.B 5 SEMESTER (S/F)

TH

ROLL NO- 35

TEACHER- PROF. KAHAKASAHAN Y DANIYAL.

1|Page
 PROJECT REPORT ON FAMILY LAW

ACKNOWLEDGEMENT

It gives me immense pleasure and gratitude to thank my Family law teacher, K.Y Daniyal Ma’am
who gave me opportunity to do this wonderful project which helped me in doing a lot of research
and I came to know about so many new things. I am thankful to her.

Secondly, I would like to give thanks to all my seniors who have guided throughout the research
process.

Lastly, I feel that my project would not have been completed without the help of my parents and
friends.

YOURS SINCERELY,

NIKHIL KUMAR

2|Page
 PROJECT REPORT ON FAMILY LAW

S.NO TOPIC PAGE NO.

1 ACKNOWLEDGEMENT 2

2 INTRODUCTION 4

3 ESTABLISHMENT OF FAMILY COURTS 5

4 STATUS OF A FAMILY COURTS 6

5 JURISDICTION OF A FAMILY COURTS 7

6 PROCEDURE OF FAMILY COURTS 8

7 INDIAN DIVORCE ACT 9

8 GROUNDS FOR DIVORCE 10

9 CONCLUSION 14

10 BIBLIOGRAPHY 15

3|Page
 PROJECT REPORT ON FAMILY LAW

Introduction

India has one of the oldest legal systems and practices in the world. Its law and jurisprudence
stretches back to many centuries, forming a living tradition which has grown and evolved with the
lives of its diverse people. India is a land of diversified culture, local customs and various
conventions which are not in opposition to the statue or ethics. People of different religions as well
as traditions are regulated by all the different sets of personal laws in order to relate to family
affairs. India is a vast country with the second largest population in the world, so naturally the
numbers of married persons are also high. With the high number of married persons, marital
disputes also increase due to various reasons and the majority come to the court for redressal.
Family courts have a very crucial role to play in reducing the load of disputes on an overburdened
judicial system, providing relief to litigants, who are forced to suffer prolonged delays in getting
justice. Thus, this chapter deals with the origin and development of family courts in India and
discusses how the family law is applicable in the process and functions of the family court. It also
provides an overall view of the Indian family court systems.

In M.P Gangadhar v. state of Kerala1 the SC has held that family courts should be established not
only because it is provided in the act but the state must be alive to the situation that it has a duty
to provide the infrastructure to the forum of dispute resolution.

Establishment of Family Courts

Section 3 of the Family Courts Act, 1984, deals the establishment of family courts. The following
statements of the Act provide the brief details of the 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 Courts, and by notification.

a. shall, as soon as may be after the commencement of this Act, establish in any area in the state
comprising city or town where the population exceeds one million, a family court.

b. May establish family courts for such other areas in the state as it may deem necessary.

1
2006 SC 2360

4|Page
 PROJECT REPORT ON FAMILY LAW

2. The state government shall, after consultation with the High Court, specify, by notification, the
total limits of the area to which the jurisdiction of the family court shall extent and may, at any
time, increase, reduce or alter such limits.

The main objective of the family courts is to settle matrimonial disputes speedily by adopting
simplified procedure. To achieve the objectives, the state government is put under obligation to
establish family courts in the areas mainly in cities and towns, where the population exceeds one
million. However respective state governments may also establish family courts in the areas where
it is necessary. Subsection (2) of the Family Court Act says that the state governments are to
consult their respective High Courts and specify the local limits of the area to which the Family
Courts were to be established. Therefore the territorial jurisdiction of the Family Court is limited
to that of a District Court or as the State Government may fix by notification in consultation with
the High Court.

Concept of Family Court

In some western countries, family courts are already functioning. Now it is accepted by most, that
litigation in respect of any matter concerning family whether divorce, maintenance, custody of
children and trial of juvenile offenders should not be viewed in terms of failure or success of legal
action, but as social therapeutic problem. No court which is engaged in finding out what is better
for the welfare of the family, whether a marriage has broken down or not, who should have custody
of children or which spouse needs maintenance, should rest content with the assertions and
contentions of the parties and evidence led by them to prove or disprove their contentions and
allegations. The court engaged in this task requires a less formal and more active investigational
and inquisitional procedure. In short, this will imply that it is not a litigation in which parties and
their counsel are engaged in winning or defeating a legal action but parties, lawyers, social
workers, welfare officers and psychiatrists, all are engaged in finding out a solution to the problem
or problems engaging the attention of the court. Thus, the concept of family court implies an
integrated broad based service to families in trouble. It stipulates that the family court Structure
should be such as is meant to preserve the family, and to help to stabilize the marriage. Obviously,
for such a system, the adversary litigation system is hardly appropriate. Such a system visualizes
the assistance of the specialized persons and agencies.

5|Page
 PROJECT REPORT ON FAMILY LAW

Status of Family Court

Under the Family Courts Act, 1984, to begin With, family courts are to be set up for a town or city
whose population exceeds one million. It is also provided that the State Governments may also set
up family courts for other areas. The family court may consist of one or more judges. Where there
are more than one judges, each judge is entitled to exercise all or any of the conferred on family
court. In such a case, one of them will be designated as principal judge and another as additional
principal judge. The powers of both me co-extensive. The retirement age of the judges of the family
court, like that of the High Court Judges is 62 years. The emoluments of the judges and terms and
conditions of services of the judges are to be determined by the State Government concerned in
consultation with the High Court. It appears that the status of the family court will be higher to the
District Court but certainly lower to the High Court, same appeals from the judgments, decrees
and orders of the family court will lie to the High Court.

Only those persons who have at least seven years’ experience as judicial officer or as member of
a Tribunal or who have held a post for that duration under the Government of India or a State
Government requiring special knowledge of law or have been advocates of a High Court for at
least seven years are eligible to be appointed as judges of the Family Court. Other qualifications
may also be laid down by the Central Government in consultation with the Chief Justice of India.
For the appointment of judges of family courts, preference will be given to women. It is also laid
down that "every endeavor shall be made to ensure that persons committed to the need to protect
and preserve the 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". It is laudable, pious wish, but how am such persons to be found out? In
our submission, for the judges of family court, some knowledge of psychology, sociology, and
social work will be necessary. Such qualifications should be prescribed by the Central
Government. Those persons who are engaged in the research or teaching of family law and who
are consequently expert in family law matters are eligible to be appointed as judges of the family
court under the Act. Since, the family court system visualizes a less formal procedure, where legal
technicalities and technical procedure are not to be followed, such persons are eminently suitable
for the family court.

6|Page
 PROJECT REPORT ON FAMILY LAW

Jurisdiction of Family Courts

In countries where the family court system exists there is still a controversy as to what matters
should come within the jurisdiction of the court. There is an agreement that all family law matters,
such as marriage, matrimonial causes, maintenance and alimony, custody, education and support
of children, settlement of spousal property and guardianship and custody of child’s person and
property, should come within the jurisdiction of the court. But there is a disagreement as to para-
familial matters, such as inter-spousal assaults, familial assaults and other offences of criminal
nature between the spouses and their Children, inter-familial torts and contracts. Parliament has
favored the former View. Explanation to Section 7(a) lists the following matters : (a) matrimonial
Causes, (b) suits for the declaration of validity of marriage or spousal status, (c) suits regarding
the properties of the spouses, joint or individual, (d) suits for injunctions arising out of marital
relationship, such as suit for injunction to restrain spouse from taking second spouse in the life-
time of the other or injunction from preventing any other wrong, such as sale of joint property or
other spouse’s property, (e) suits for maintenance, (f) suits relating to guardianship and custody of
minor children, and (g) application relating to maintenance of wife, children and parents under
Section 125, Criminal Procedure Code, 1973. If any statute confers jurisdiction in any other
matters on the family court, then the court will have competence to try such matters. One Wishes
that para-familial matters too should have been brought under the jurisdiction of the family courts.
Thus, no matter under the Dowry prohibition Act can be brought before the Family Court.

In Shyni v. George2, it was held that wife can implead a close relative of her husband or even a
stranger on allegations that the husband had handed the property to them in a suit for recovery of
the property. This would not oust the jurisdiction of the Family Courts.

In K.A. Abdul Jaleel v. T.A. Sahida3, the expression ’parties to the marriage was held to include a
divorced wife and a petition filed by her for declaration and partition of property jointly acquired
by them would be maintainable.

Procedure
The concept of family court essentially implies that we should do away with the traditional
adversial procedure. This means that different rule of procedure are to be devised. Thus, the rules

2
1997 ker 231
3
1997 ker 269

7|Page
 PROJECT REPORT ON FAMILY LAW

of procedure should be worded simply and should indicate the whole range of procedures from the
commencement of an action to its conclusion, including means to enforce judgments and orders;
procedure should be flexible so that diverse, at time complex problems of familial conflict are
covered ; the standard forms to meet all situations should be drafted; pleadings should stay away
from the traditional adversary or fault oriented approach, pre-trial processes should be laid down
designed to provide dignified means for parties to reconcile their difference and to reach amicable
settlements without the need of trial; free advice should be made available as to rights of parties
as well as their responsibilities and obligations and where children are involved, steps for
immediate protection and their interest and rights should be taken; and issues should be determined
without any prejudicial delay. The language, conduct, documents and legal representation should
be simple without any technicalities. The pre-trial documentation of the pleadings should be such
that issues between the parties are clearly defined, this will help in avoiding frivolous litigation,
encourage pre-trial debate and settlement.

Since one of the main objectives of the family court system is to encourage and enable parties to
go into a process of reconciliation, failing which, of conciliation, the family court judge should be
able to pass consent order if parties have been able to come to some settlement, without any
formality of formal hearing or trial of issues.

The Family Court Act, it seems opts for a less formal procedure. Although Section 10 makes the
procedure laid down under the Civil Procedure Code applicable to the family court, it is laid down
that the family court has power to evolve its own rules of procedure which will override the rules
of procedure laid down in the Civil Procedure Code and the Criminal Procedure Code whenever
made applicable. Sections 14, 15 and 16 of the Act provide for the informality of the procedure.
Thus, any document, statement, information relevant for the trial will be admissible in the family
court even though the Indian Evidence Act makes such documents, etc. inadmissible. The family
court judge need not record the full evidence as is done in adversial system; he may just prepare a
memorandum of substance of evidence. A11 formal evidence will be tendered by affidavits,
though wherever necessary, a deponent may be orally manned. Similarly, the judge need not render
a detailed judgment, though it should contain a concise statement of the case, the points for
determination, the decision and reasons for the decision.

8|Page
 PROJECT REPORT ON FAMILY LAW

INDIAN DIVORCE ACT, 1869

Divorce is the legal dissolution of the marital union between a man and a woman. In India, divorce
is granted by the court of law after receiving a petition from either husband or wife. Divorce is
followed by granting alimony, child custody, child visitation, distribution of property, distribution
of debts etc. Though the jurisdiction of divorce changes varies yet it can be classified as either no-
fault divorce (mutual divorce) or fault divorce. In some cases the fault of the spouse may not be
needed to be proved. The concept of divorce must not be confused with the concept of judicial
separation. Judicial separation is the legal separation between the husband and the wife, granted
by the court on petition from either the husband or the wife or both. In judicial separation the
marital tie between the husband and wife continues to exist and neither of them enjoys the freedom
to be re-married. Divorce must not also be confused with the concept with annulment of marriage.
Annulment of marriage renders the marriage null and void from the first instance. The court
declares the marriage to be null and void and the husband and wife should treat the marriage as if
it never happened. The concept divorce is different from the other two measures of separation. It
has a stronger legal binding and makes the husband wife more responsible. Some of the laws
discussed in the following are:

 The Hindu Marriage Act (1955).

 The Special Marriage Act (1954).
 The Divorce Act (1869).
 The Muslim Law.

The Divorce Act 1869, extents to the whole of India except the state of Jammu and Kashmir. This
act applies only to the Christians domiciled in India at the time of presenting the petition.

GROUNDS FOR DIVORCE

Section 10 of the act provides for the grounds for dissolution of marriage. Both the husband and
wife can move to court to seek a decree for divorce under this act. The grounds are as follows:

 ADULTERY: The respondent has committed adultery

9|Page
 PROJECT REPORT ON FAMILY LAW

 CONVERSION: The respondent has ceased to be a Christian by conversion to another

religion

 LEPROSY: The respondent has been suffering from a virulent and incurable form of
leprosy for a period not less than two years immediately preceding the presentation of the
petition

 VENEREAL DISEASE: The respondent has been suffering from a venereal disease in a
communicable form for a period not less than 2 years immediately preceding the
presentation of petition

 PRESUMED DEATH: The respondent has not been heard to be alive for continuous period
of 7 years or more

 NON-CONSUMMATION: The respondent has wilfully refused to consummate the

marriage and therefore the marriage has not been consummated.

 FAILURE TO COMPLY WITH THE DECREE OF RESTITUTION OF CONJUGAL

RIGHTS: The respondent has failed to comply with the decree of restitution of conjugal
rights.

 DESERTION: The respondent has deserted the petitioner for a continuous term of 2 years
or more immediately preceding the presentation of petition.

 UNSOUND MIND: The respondent has been incurably of unsound mind for a continuous
period of not less than two years immediately preceding the date of presentation of the
petition.

 CRUELTY: The respondent has treated the petitioner with such cruelty that it has created
a reasonable apprehension in the mind of the petitioner that it would be injurious to live
with the respondent.

The act provides that the wife may also present a petition for dissolution of marriage on the ground
that the husband has committed an act of rape, sodomy or bestiality.

10 | P a g e
 PROJECT REPORT ON FAMILY LAW

Types of Divorce Petitions

A couple can get a divorce with mutual consent, or either spouse may file for divorce without the
consent of the other.

Divorce with Mutual Consent: When husband and wife both agree to a divorce, the courts will
consider a divorce with mutual consent. For the petition to be accepted, however, the couple should
be separated for over a year or two years (as per the relevant act) and be able to prove that they
have not been able to live together. Often, even when either husband or wife is reluctant, they still
agree to such a divorce because it is relatively inexpensive and not as traumatic as a contested
divorce. Matters such as children’s custody, maintenance and property rights could be agreed to
mutually.

There are three aspects regarding which a husband and wife have to reach a consensus. One is
alimony or maintenance issues. As per law, there is no minimum or maximum limit of support. It
could be any figure or no figure. The second consideration is custody of the child. This must
necessarily be worked out between the parties, as it is inevitably what requires the greatest amount
of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be
shared or joint or exclusive depending upon the understanding of the spouses. The third is property.
The husband and wife must decide who gets what part of the property. This includes both movable
and immovable property. Right down to the bank accounts, everything must be divided. It is not
necessary for it to be fair, so long as it is agreed to by both parties.

The duration of a divorce by mutual consent varies from six to 18 months, depending on the
decision of the court. Usually, the courts prefer to end mutual consent divorces sooner, rather than
later. As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage
Act, 1954, the couple should be living separately for at least one year before divorce proceedings
can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at
least two years. Do note that living separately does not necessarily mean living in different
locations; the couple only needs to provide that they have not been living as husband and wife
during this time period.

11 | P a g e
 PROJECT REPORT ON FAMILY LAW

Divorce without Mutual Consent: In case of a contested divorce, there are specific grounds on
which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without
stating a reason. The reasons for divorce are as follows, though some are not applicable to all
religions.

 Cruelty: Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws
in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s
conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining
divorce due to cruelty by the spouse.
 Adultery: In India, a man that commits adultery (i.e. has consensual sexual intercourse
outside of marriage) can be charged with a criminal offence. The wife may, of course, file
for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot
be charged with a criminal offence, though the husband can seek prosecution of the
adulterer male for adultery.
 Desertion: One spouse deserting the other without reasonable cause (cruelty, for example)
is reason for divorce. However, the spouse who abandons the other should intend to desert
and there should be proof of it. As per Hindu laws, the desertion should have lasted at least
two continuous years. Christians, however, will not be able to file a divorce petition solely
for this reason
 Conversion: Divorce can be sought by a spouse if the other spouse converts to another
religion. This reason does not require any time to have passed before divorce can be filed.
 Mental Disorder: If the spouse is incapable of performing the normal duties required in
a marriage on account of mental illness, divorce can be sought. If the mental illness is to
such an extent that the normal duties of married life cannot be performed.
 Communicable Disease: If the spouse suffers from a communicable disease, such as
HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy, the Hindu
Divorce Laws in India say that the other party can obtain a divorce.
 Renunciation of the World: If the spouse renounces his/her married life and opts for
sanyasa, the aggrieved spouse may obtain a divorce.

12 | P a g e
 PROJECT REPORT ON FAMILY LAW

 Presumption of Death: If the spouse has not been heard of as being alive for a period of
at least seven years, by such individuals who would have heard about such spouse, if he
or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.

13 | P a g e
 PROJECT REPORT ON FAMILY LAW

CONCLUSION

As we know marriage and divorce laws vary from one custom to another but the essence remains
the same, that is, to provide justice to the victim. The law ensures that the husband and wife
respects the sacramental tie of marriage as well as one another but at the same time it ensures that
nobody must carry the burden of torture and disrespect and has full freedom to break this when
necessary. Apart from divorce there are various other ways by which a relief can be granted to the
victim such as restitution of conjugal rights and judicial separation. The law also ensures that the
spouse is well maintained even after divorce by directing the husband to pay alimony to the wife.

14 | P a g e
 PROJECT REPORT ON FAMILY LAW

BIBLIOGRAPHY

BOOK

 Paras Diwan, Modern Hindu Law, 16th edition, Allahabad Law Agency

WEBSITES

 www.lawyersclubindia.com.
 www.indiankanoon.com
 http://www.indianlawcases.com/
 http://articles.timesofindia.indiatimes.com

15 | P a g e