Understanding the Basics of Family Law Practice (LITIGATION BASICS 16)

Family law practice is emerging as a specialized practice area like criminal law and civil law. The Family Court Act 1984 provides for the Establishment of Family Courts with a view to promote conciliation and speedy settlement of disputes relating to marriages and family affairs. Family Law practice deals with issues involving family relationships such as marriage, divorce, maintenance, child custody, adoption, guardianship, succession and among others. Family law practice is a mix of both civil and criminal law. Law students and junior lawyers who wish to practice in family law, first understand the basic approach of law and the procedure of the courts.

(A) UNDERSTANDING THE PROCEDURAL AND SUBSTANTIVE LAWS

The Law Practitioner requires thorough understanding of procedural and substantive laws relating to family Law practice.

(1) Procedural Laws –

The procedural law provides procedure to be followed by Courts. The family law practice are both civil and criminal in nature. Generally cases under family laws comes under the jurisdiction of Family Court, Civil Court, Court of Judicial Magistrate and Appellate Courts.

The Family Law practitioner requires thorough understanding of following procedural laws –

1. Civil Procedure Code (CPC) 1908
2. Limitation Act 1963
3. Criminal Procedure Code (CrPC) 1973
4. Evidence Act 1872
5. Family Court Act 1984 and Family Court Rules

(2) Substantive Laws –

The family laws deals with issues involving family relationship such as marriage, divorce, maintenance, child custody, adoption, guardianship, succession and among others. The substantive family laws includes statutory laws, customs and personal laws.

The Family Law practitioner requires thorough understanding of following substantive laws –

(a) SECULAR LAWS –

• Special Marriage Act, 1954
• Foreign Marriage Act, 1969
• Succession Act, 1925
• Guardians and Wards Act, 1890

(b) HINDU LAWS –

• Hindu Marriage Act, 1955
• Hindu Adoptions and Maintenance Act, 1956
• Hindu Succession Act, 1956
• Hindu Minority and Guardianship Act, 1956

(c) MUSLIM LAWS –

• Muslim Personal Laws – Refer Mulla – Principles of Mahomedan Law
• Dissolution of Muslim Marriages Act, 1939
• Muslim Personal Law (Shariat) Application Act, 1937
• Muslim Women (Protection of Rights on Divorce) Act, 1986
• Muslim Women (Protection of Rights on Marriage) Act, 2019

(d) CHRISTAIN LAWS –

• Christian Marriage Act, 1872
• Divorce Act, 1869

(f) PARSI LAWS –

• Parsi Marriage and Divorce Act, 1936

(g) OTHER LAWS (INCLUDING CRIMINAL LAWS)

• Protection of Women from Domestic Violence Act, 2005
• Dowry Prohibition Act, 1961
• Indian Penal Code – Section 498A
• Criminal Procedure Code – Section 125
• Prohibition of Child Marriage Act, 2006
• Majority Act, 1875

(B) UNDERSTANDING THE DIFFERENT COURTS AND THEIR JURISDICTION

(1) Family court

Family Courts have established under Family Court Act 1984. The Family Courts enjoys jurisdiction over the matters provided in Section 7 of the Act.

The suits and proceedings referred in Section 7 are of the following nature, namely –

1. Suits between the parties to marriage for Decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage
2. Suit for Declaration as to validity of marriage
3. Suit Relating to Properties of the parties in the marriage
4. Injunction suit
5. Suit for Declaration of legitimacy of any person
6. Suit for maintenance
7. Suit in relation to guardianship or custody of child

(2) Civil Courts

The civil courts enjoy jurisdiction over the proceedings under the law of intestate and testamentary succession.

(3) Court of Judicial Magistrate –

The suits and proceedings which are criminal in nature comes under the jurisdiction of Judicial Magistrate First Class.

1. Proceedings under PWDVA 2005,
2. Criminal Proceedings under Section 498A of IPC,
3. Maintenance proceedings under Section 125 of CrPC

(4) Appellate court –

• Appeal against the Judgment or Order of Family Court shall lie to the High Court.
• Appeal against the judgment or order of Judicial Magistrate First class shall lie to the Court of Session.

(C) TYPES OF CASES UNDER FAMILY LAW

(1) Marriage –

The following types of cases comes under the heading marriage–

• Registration of marriage
• Declaration relating to validity of marriage
  • Example – Section 5 of the Hindu Marriage Act provides for Conditions for Hindu Marriage
• Injunction suit to restrain marriage

(2) Divorce –

The divorce proceedings are mainly two types –

1. Mutual Divorce – Where both parties in marriage agree to dissolve marriage through mutual consent
   • Example – Section 13B of the Hindu marriage Act provides provision for Divorce by mutual Consent
2. Contested Divorce – Where court grants divorce to parties on proving conditions for divorce provided in the law.
   • Example – Section 13 of the Hindu Marriage Act provides provision for grounds for divorce.

(3) Decree of Nullity of marriage

Marriage become null and void if it contravenes the conditions of valid marriage.

Example – Section 11 and 12 of the Hindu Marriage Act provides for void and voidable marriage.

(4) Restitution of Conjugal Rights

When the either of the party to marriage without reasonable reason withdrawn from the society of the other, aggrieved party may apply for restitution of conjugal rights.

Example – Section 9 of the Hindu Marriage Act provides for Restitution of Conjugal Rights.

(5) Judicial Separation

Judicial separation is a period that comes before divorce. Under decree of judicial separation married couple to cease cohabiting but not dissolving the marriage.

Example – Section 10 of the Hindu Marriage Act provides for Judicial Separation.

(6) Mediation

Mediation is the most effective alternative dispute resolution strategy in cases relating to family and matrimonial disputes.

(7) Maintenance

Married women have the right to seek maintenance against husband under statutory laws.

The types of maintenance proceedings are follows –

• Claim of Maintenance by Wife against husband under the statutory law –
  • Example – Maintenance under Hindu Marriage Act and Hindu Adoption and Maintenance Act
• Petition for maintenance under S 125 of CrPC
• Petition for maintenance under PWDVA 2005
• Proceeding for recovery of Maintenance

(8) Custody of Child

Child custody is often a major issue of contention between the parties in divorce proceedings.

Example – Section 26 of the Hindu Marriage Act provides for custody of children

(9) Adoption

Adoption is a process whereby a person assumes the parenting of child, from that person’s biological or legal parent.

Example – Hindu Adoption Act & Maintenance Act provides provisions for Adoption.

(10) Guardianship

Guardianship is a legal process used to protect individuals who are unable to care for their own well-being due to infancy, incapacity or disability.

Example – Hindu Minority and Guardianship Act provides provision for Guardianship.

(11) Succession

Laws of Succession relate to legal principles of distribution of assets of a deceased individual.

There are two types of succession –

1. Testamentary succession – Where succession is govern by a testament or a will.
   • Example – Indian Succession Act provides for testamentary succession.
2. Intestate Succession – Succession of the person dying without leaving a valid and enforceable Will, is called Intestate Succession.
   • Example – Hindu Succession Act provides provision for Intestate Succession  

(12) Criminal Proceedings

The following criminal proceedings under the family laws arises –

• Proceeding under PWDVA 2005.
• Section 498A of IPC – Husband or relative of husband of a woman subjecting her to cruelty
• Petition for Quashing of proceedings to High Court under Section 482 of CrPC and Article 226 of the Constitution

(13) Appeals and Revisions

Section 19 of Family Court Act provides for Appeals and Revision. Appeal against the Judgment or Order of Family Court shall lie to the High Court. Appeal against the judgment or order of Civil Court and Court of Judicial Magistrate governs under the provision of CPC and CrPC respectively.