Family Law(1).pdf

Succession as per Hanafi Law

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Family Court: Establishment,
Powers and Functions,
Dowry prohibition Act 1961
Presented by: Minu KS, 3S1

2. z
Establishment
Family courts are designed to deal with disputes arising in
family matters such as divorce,child custody, maintenance etc.
One of the main goals of family court is to settle legal problems
that can occur in families. The first Family Court case was
established in the state of Rajasthan in 1985.

Family Courts Act, 1984 was enacted on 14 September 1984 to
establish family Courts in India to promote conciliation and secure
speedy settlement of disputes relating to marriage and family
affairs.

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Section 3 of the family court act 1984 provides that these
courts are to be established in the town on the city where is
the population exceeds 1 million or in any area where the state
government considers establishing it.
There are Total 753 Family courts in India currently
There are 28 family courts in Kerala

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Appointment of Judges
Appointment of judges of family courts is to be made by the
State Governments with the concurrence of their High Courts. A
family court may consist of one or more judges. Where there are
more than one judge of a family court, each judge is competent
to exercise all or any of the powers of the family court. Where a
family court has more than one judge, the State Government
with the concurrence of the High Court will designate one of the
judges as the principal judge and any other judge as additional
principal judge.

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The retirement age of the judge of the family court, like that of
the judge of the High Court, is 62 years.”
Section 4(3) of the Act lays down the qualification of judges of
the family court. A person who has at least seven years’
experience as a judicial officer or as a member of a tribunal or
who has held a post for that duration under the Central or a
State Government requiring special knowledge of law, or who
has been an advocate of a High Court (or two or more High
Courts in succession) for at least seven years may be
appointed as judge of the family court. Other qualifications
may also be laid down by the Central Government in
consultation with the Chief Justice of India.

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Objectives of Family Courts
1. Inquisitorial approach
Family courts moved away from the conventional adversarial mode
of justice and adopted a less formal, inquisitorial system. This
essentially means that the parties involved in the trial are not
focusing their attention on “winning” or defeating the other party.
But instead, they are focusing towards analyzing the situation at
hand to find an amicable solution.

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2. Make the process less formal, less intimidating and more
accessible
In the case of Gangadharan v. State of Kerala, it was held by the
Court that Section 3 of the Family Courts Act, which provides for
the establishment of family courts, should not be the sole reason
for establishing family courts. Instead, the State Governments
should establish such courts in order to “discharge their social
obligation to provide a less formal platform for resolving family
disputes.
3. To ensure quick redressal of grievances.
Make the procedure and process involved with family courts less
formal, but also less expensive.

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Jurisdiction of family courts
The jurisdiction of family courts in India is encompassed under
Section 7 of the Family Courts Act, 1984. Section 7(1) provides
that the jurisdiction of the family courts in India extend to the
jurisdictions exercisable by the district courts or other subordinate
courts. However, this assumption that family courts are equal to
district courts and can exercise jurisdictions exercisable to them
extends only to the matters provided under the Family Courts Act.
The following matters are listed the explanation provided under
Section 7.

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(a). A suit or proceeding between the parties to a
marriage for a decree of nullity, restitution of conjugal
rights, judicial separation and divorce;
(b). A suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status
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.

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(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.

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However, the jurisdiction of family courts is not limit civil cases
only. Their jurisdiction also extends to criminal cases. Chapter
IX of the Code of Criminal Procedure grants jurisdiction to
family courts equivalent to that exercisable by a Magistrate of
First Class. Subject matter included in such jurisdiction
comprises of being permit to pass orders regarding the
“maintenance of wife, children and parents”.Not only have the family courts been grant vast jurisdiction in
terms of their subject matter, they have been grant this
jurisdiction exclusively. Section 8 of the Family Courts Act
excludes bars and other courts from exercising the jurisdiction
conferred upon the family courts.

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Powers of Family courts
1. Creating procedures at their own discretion
Section 10 of the family courts prescribes that,in case judges decide to
establish their own procedures for the purposes promoting conciliation
and settlements, such procedures will effectively act to override those
prescribed in the Code of Civil Procedure. In other words,
while family courts are not prohibit from adhering to the Code of Civil
Procedure, they are also not bound by it.

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2. Some rules of evidence are not applicable
1) According to section 15 of Family courts Act,it is mandatory for
family courts to record oral evidence of witnesses at length. Instead, it is
consider to be sufficient or adequate even a memorandum is create
containing the matter of what the witness testifies to. As was held in the
case of Narayane Roy v. Jamuna Dey (Roy), “the rigor of the Evidence Act
is not applicable in reception of evidence by the family court”.

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2) According to section 14 of Family courts Act, as long as the
judge of the family court perceives a piece of evidence as being
significant in solving the dispute at hand, they can admit that piece
of evidence into court even if the same would not have been
permissible to be admitted under the Indian Evidence Act owing to
its lack of relevancy or admissibility.

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3. Appeal goes directly to the High Court
An appeal against any order or decree, except interlocutory orders,
passed by family courts lies with the High Court.The same would be
hear by a division bench of the High Court. In case an appeal is to be
prefer,it must be made within the limitation period of thirty days from
the date on which the judgement has been passed. After the expiration
of this period of limitation, no appeal shall be preferred.

16. z Procedures
(i) The rules should be framed in simple language clearly indicating the whole range of
procedures, from the commencement of an action to its conclusion, including the
means of enforcing judgments, decrees and orders.
(ii) Flexibility of rules should be the hallmark of the new procedure so that diverse, at
times complex, problems of familial conflicts are covered.
(iii) As far as possible, standard forms should be provided for various types of
proceedings and these forms should be framed in manner as to be adaptable to the
circumstances of each case.
(iv) Pleadings should be simple and should not have the traditional fault-oriented
approach.

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(v)Pre-trial processes should be designed in such a manner
as to provide dignified means for the parties to reconcile
their differences or to arrive at amicable settlements
without the need of trial.

(vi) Facilities for legal advice should be made available to
each litigant so that he or she may become aware of the
right and responsibility, and, where, children are involved,
an early opportunity should be provided to ensure that their
rights are adequately protected.

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(vii) Issues between the parties should be determined without
any prejudicial delay. This is particularly significant when the
court is concerned with the placement of children.
(viii) The language, conduct, documentation and legal
representation should be simple, shorn of all technicalities.
(ix) Pre-trial documentation of the pleadings should be such
that issues between the parties are clearly defined. This will
help avoid frivolous litigation and encourage pre-trial debate
and settlement.

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Special procedures
In Camera Proceedings
It is now a part of the concept of family court that confidentiality of
the court record should be maintained and if the parties so desire
or the court so thinks proper, the proceedings should be in camera.
Section 11 of the Family Courts Act makes it obligatory on the part
of the court to hold the proceedings in camera if any party so
desires.

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Dowry Prohibition Act, 1961
What is dowry?
According to section 2 of Dowry Prohibition Act, 1961, the term
“dowry” means any property or valuable security given or agreed
to be given either directly or indirectly.

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(a) By one party to a marriage to the other party to the marriage,
or
(b) By the parent of either party to a marriage or by any other
person, to either party to the marriage or to any other person, at
or before [or anytime after the marriage] [in connection with the
marriage of the said parties, but does not include] dower or
mahr in the case of persons to whom the Muslim Personal Law
(Shariat).

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In Rajeev v. Ram Kishan Jaiswal, the court held that any
property given by parents of the bride need not be in
consideration of the marriage, it can even be in
connection with the marriage and would constitute
dowry.

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Who would be an offender under the law?
According to section 3 of the Dowry Prohibition Act, 1961, it is
an offence to both take dowry and give dowry. So the family of
bridegroom would be liable for taking dowry so would the family
of bride be to consent to give dowry.

24. zLegal Framework in India for the
Prohibition of Dowry
Penalty for giving and taking dowry (Section 3) – According to section 3, if
any person after the commencement of the Act gives or takes, abets the
giving or taking of dowry shall be punished with an imprisonment for a term
not less than five years and with fine which shall not be less than fifteen
thousand rupees or the amount of the value of dowry, whichever is more.
Penalty for demanding dowry (section 4) – According to section 4, if any
person directly or indirectly demands dowry from the parents, relatives or
guardians of the bride or the bridegroom shall be punished with an
imprisonment of not less than six months and which shall extend to two
years and with fine which may extend to ten thousand rupees.

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Ban on advertisement (section 4-A) – According to section 4-A, the
advertisement in any newspaper, journal or through any other
medium or a share in the property, business, money, etc by any
person in consideration for marriage shall be punished with an
imprisonment which shall not be less than six months and which may
extend to five years or with fine which may extend to fifteen thousand
rupees.According to section 8 certain offences under this Act shall be
cognizable, non-bailable and non- compoundable.

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Other Penal Punishments
Indian Penal Code, 1860
Dowry Death (section 304 B)- Section 304(B) reads as follows-
Where the death of a woman is caused by any burns or bodily injury
or occurs otherwise than under normal circumstances within seven
years of her marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for
dowry, such death shall be called “dowry death” and such husband
or relatives shall be deemed to have caused her death.

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Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life.

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Husband or relative of husband subjecting women to cruelty
(section 498-A) – Section 498- A reads as follows-
Husband or relative of husband of a woman subjecting her to
cruelty- Whoever, being the husband or the relatives of the
husband of a woman, subject such woman to cruelty shall be
punished with imprisonment for a term which may extend to three
years and shall also be liable to fine.

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Social Evils of Dowry
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Female Foeticide
Suicide by Young girls
Uneducation to girls
Mental Harassment to girls

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Misuse of Dowry laws by women
There are always two sides of a coin; similarly, every law has
its use as well as misuse. The anti-dowry laws have proved to
be a panacea for women at the same time they have also
proved to be a nuisance for men. Not all dowry cases filed by
women are true and in more than 40% cases filed; the
allegations made by women are false.

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The two-judge bench of the Supreme Court headed by Justice
Chandramauli Kumar Prasad recently in a 21-page order said that
the simplest way to harass the husband is to get him and his
relatives arrested.
The Judges stated a notable point that in many cases the
bedridden grandfathers and grand- mothers of the husbands, their
sisters living abroad for decades are arrested.
The judges also reminded the authorities that they must follow a
so-called nine-point checklist that has been part of the anti-dowry
law before noting down a dowry-related complaint.

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Thank You...