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

Family law practice has emerged as a specialised area of legal practice, distinct yet closely connected with civil and criminal law. The Family Courts Act, 1984 provides for the establishment of Family Courts with the object of promoting conciliation and ensuring speedy settlement of disputes relating to marriage and family affairs. Family law practice deals with issues involving family relationships such as marriage, divorce, maintenance, child custody, adoption, guardianship, and succession. Since family disputes often involve both civil remedies and criminal proceedings, family law practice is a combination of civil and criminal law. Law students and junior lawyers intending to practice family law must first understand the legal approach, procedural framework, and the sensitive nature of such disputes.

(A) Understanding the Procedural and Substantive Laws

Family law practice requires a thorough understanding of both procedural laws and substantive laws governing family-related disputes.

(1) Procedural Laws

Procedural laws prescribe the manner in which cases are instituted, tried, and decided by courts. Proceedings under family laws may be civil or criminal in nature and generally fall within the jurisdiction of Family Courts, Civil Courts, Courts of Judicial Magistrates, and appellate courts. A family law practitioner must therefore be familiar with the procedural laws of respective courts.

(2) Substantive Laws

Substantive family laws govern rights and obligations arising out of family relationships such as marriage, divorce, maintenance, custody, adoption, guardianship, and succession. These laws include statutory enactments, personal laws, and customs applicable to different communities.

 

(B) Understanding the Different Courts and Their Jurisdiction

Family law matters are adjudicated by different courts depending upon the nature of the proceedings.

(1) Family Courts

Family Courts are established under the Family Courts Act, 1984 and exercise jurisdiction over matters specified under Section 7 of the Act. The suits and proceedings include:

1.      Suits between parties to a marriage for nullity, restitution of conjugal rights, judicial separation, or dissolution of marriage

2.      Suits for declaration regarding the validity of marriage

3.      Suits relating to the property of parties to a marriage

4.      Injunction suits

5.      Suits for declaration of legitimacy

6.      Suits for maintenance

7.      Suits relating to guardianship or custody of children

(2) Civil Courts

Civil courts exercise jurisdiction over matters relating to testamentary and intestate succession, including probate, letters of administration, and succession certificates.

(3) Court of Judicial Magistrate

Criminal proceedings arising out of family disputes fall within the jurisdiction of the Judicial Magistrate First Class. These include:

1.      Proceedings under the Protection of Women from Domestic Violence Act, 2005

2.      Criminal proceedings relating to cruelty and allied offences under the BNS/IPC.

3.      Maintenance proceedings under the BNSS/CrPC.

(4) Appellate Courts

·         Appeals against judgments or orders of the Family Court lie to the High Court.

·         Appeals against judgments or orders of the Judicial Magistrate First Class lie to the Court of Session.

 

(C) Types of Cases under Family Law

Family law litigation involves a wide range of disputes, including the following:

(1) Marriage

·         Registration of marriage

·         Declaration relating to validity of marriage

·         Injunction suits to restrain marriage

·         Example: Conditions of marriage under Section 5 of the Hindu Marriage Act

(2) Divorce

·         Mutual consent divorce (e.g., Section 13B of the Hindu Marriage Act)

·         Contested divorce on statutory grounds (e.g., Section 13 of the Hindu Marriage Act)

(3) Decree of Nullity of Marriage

·         Void and voidable marriages under Sections 11 and 12 of the Hindu Marriage Act

(4) Restitution of Conjugal Rights

·    Remedy available when one spouse withdraws from the society of the other without reasonable cause

·         Example: Section 9 of the Hindu Marriage Act

(5) Judicial Separation

·         Legal separation without dissolution of marriage

·         Example: Section 10 of the Hindu Marriage Act

(6) Mediation
Mediation plays a crucial role in family and matrimonial disputes and is actively encouraged by Family Courts.

(7) Maintenance
Maintenance proceedings may be initiated under various statutes, including:

·         Hindu Marriage Act and Hindu Adoptions and Maintenance Act

·         Bharatiya Nagarik Suraksha Sanhita, 2023

·         Protection of Women from Domestic Violence Act, 2005

·         Proceedings for recovery of maintenance

(8) Custody of Children

·         Disputes relating to custody and visitation rights

·         Example: Section 26 of the Hindu Marriage Act

(9) Adoption

·         Adoption proceedings under the Hindu Adoptions and Maintenance Act

(10) Guardianship

·         Guardianship proceedings under the Hindu Minority and Guardianship Act

(11) Succession

·         Testamentary succession governed by wills (Indian Succession Act, 1925)

·         Intestate succession governed by personal laws such as the Hindu Succession Act, 1956

(12) Criminal Proceedings

·        Proceedings under the Protection of Women from Domestic Violence Act, 2005

·        Criminal proceedings relating to cruelty under the Bharatiya Nyaya Sanhita, 2023

·  Petitions for quashing before the High Court under the inherent powers and constitutional jurisdiction

(13) Appeals and Revisions

Section 19 of the Family Courts Act provides for appeals and revisions. Appeals against judgments or orders of Family Courts lie to the High Court, while appeals and revisions arising from Civil Courts and Magistrate Courts are governed by the CPC and BNSS/CrPC respectively.