This article has been written by, Mr Shubham Kumar Sinha, 1st year student at national law university odisha (NLUO),Cuttack
Family courts in india was established by the act of the family courts act 1984 with a main aim to dispense speedy settlement of disputes arising out of small family matters through the process of conciliation. Currently there are 785 family courts across india ( july 2023 )and for the same purpose of speedy settlement of disputes 14th finance commission had suggested for establishment of more of such courts. family courts have jurisdiction over many matrimonial disputes with guardianship being one of them. Its jurisdiction is clearly defined in chapter 3 of the family courts act 1984 and its clause 7 sub clause g reads about the jurisdiction of family court in matters of guardianship.
So lets talk about what is guardianship, so basically as the name suggest it is a guardian is a person who has the legal authority and duty towards a person who is incapable of taking care of himself or herself, the incapable person can be minor or a person with disabilities due to which he is incapable to take care of himself. For this discussion we will restrict ourselves to the guardianship of a minor.The hindu majority and guardianship act of 1951 defines minor as person who has not completed the age of 18 years. He or she is seen as emotionally as well as physically immature and incapable to take their own care and hence they need someones care for them to nurture. In india we have specific guardianship laws unlike the western, European and American world where the guardianship matter is handled on case to case basis.
In India parents are considered as a natural guardian of a child. Specially as a society such patriarchal as ours it is also reflected in our laws, in India father is the sole legal guardian of a child and he takes all the major decisions but the law also provide for alteration in case the father is no more capable. On the contrary mother is said to be guardian of a child as long as she lives and this can not be taken away even if she changes her faith or adopts any child. so as we know India is a vast country with so much diversity , to accommodate it we also have different personal laws and hence for guardianship and custody matters too we have different laws and rules for different sets of people or whom we can club as a community following a certain religion. for this matter we have both codified as well as uncodified laws like the guardianship and wards act 1890 , the hindu minority and guardianship act 1956, Islamic Personal Law, Christian And Parsi Law. India has also signed the UN convention on rights of child and is bound to take steps to protect the same. In case of matrimonial disputes an important question is always asked to court, who will take the custody of the child. This question is mindboggling cause both the parents play equally important role in overall development of a child and sadly sometimes they become pray of a matrimonial family dispute with which they have no role to play.
As a child, the biggest fear of a young kid is to imagine a life without their parents and when they see these arguments and issues which eventually leads to separation of their parents, it leaves a deep impact in their life. Imagine seeing arguments and your parent lawyers shouting at each other for the issue of who will keep you, the pain that child endures is unimaginable. But law can’t do much in this regard. What law can do is ease this pain of separation of parents. For this we have our family courts in rescue. Family court is not like any other civil or criminal courts. It is a court of conciliation, a court where different views can be accommodated with ease. Family court utilizes a very different approach which is also very important as the family matter just don’t effect two individuals who are parting it impacts a huge crowd of family and friends with child at the center . there is a distinct attitude of judges in the family court which is very different from the ordinary courts. The family court act 1984 is the lone act which provides for requirement of specialists, doctors and counselors.
A judge in family court plays a role of mediator not as adjudicator , it reconcile the divergent views of the partner and decide what is in the best interest of both the parties and their child. In cases of guardianship the family court is the first court of appeal , or in district courts where there is no family court established till today. Family court in guardianship matters is presumed to look after what if best for a child. But everything is not honkey-dorrie here, family court have certain loop holes too and it should be resolved as early as possible. Based on a survey of Mumbai family court a study had following observations.
- Guardianship issue was not given a specific priority in almost all the cases. It was listened as something complimentary to marriage issues. Family court lacked the activeness to priortise the issue of adoption and guardianship.
- Also, when decided on a issue there was a lack of a follow up to the order of the court. The court failed to ensure that whether the order was duly complied to or not. This often leads to dishonor of the decisions made by the court in this issue.
- Also it was observed that there was no fix guidelines established about the working of the court. In certain cases judges interviewed the child facing traumatic experience whereas in certain cases it was left to counselors.
- It was also observed that the courts lacked ‘the child centered approach’ to deal with the issue which often created insensitivity on the part of judges and often creating issues in decision making. The counselors appointed was also not that very expert in the matter of child psychology.
- The most problematic thing which was observed that the family courts leaves it to interpretation of judges about whether to award the custody to mother or father, this wide interpretation often leads to mismanagement, laws must be very specific otherwise it creates an area of lack of honestly and which also results in the ill activities by some judges like taking bribe from either of the party to award custody in their favour.
- Also this broad interpretation of suitability which has to be decided by the learned judges has one more inner problem to it, the judges are not even providing the rational on which the judgement of custody is pronounced.
The observations tell us the inherent draw backs of family court. Family courts only mentions in their judgement that to whom the custody was granted it never mentions why. Also the child lacks the legal representation in the family court. The wife and the husband very well know what would be good for them and they push their needs through their lawyer but where the needs of a child lies? No one talks about it, there are a silent soul who are often unable to raise their voice, their needs, their desires. They are trapped in all these problems in which they had no role to play but they are indeed suffering due to the fights and disarguments of their parents, it Is heartbreaking. Think of it. in cases where the family negotiate after the judgement of the family court, if they agree they can even change the directions of the court even regarding the custody matters. What does it mean, the party who can negotiate well can take the custody.
The family court lacks the effectiveness. It don’t have enough resources and time to look after the child need effectively. In conclusion, while family courts in India have been established with the noble aim of providing speedy resolution to disputes arising from familial matters, a critical examination reveals several areas that demand urgent attention and reform. The overarching objective of family courts, particularly in matters of guardianship and child custody, is to ensure the best interests of the child. However, the existing framework, while commendable in its intent, exhibits inherent flaws that hinder the realization of this paramount goal. One of the glaring issues that surfaced in the survey of Mumbai family courts is the insufficient prioritization of guardianship matters. These issues are often treated as ancillary to broader matrimonial disputes, leading to a lack of attention and timely resolution. The family court’s responsiveness to the vital issues of adoption and guardianship is lacking, indicating a need for a systemic shift in perspective. Guardianship, especially concerning minors, deserves dedicated attention and procedural efficiency to safeguard the well-being of the vulnerable parties involved. Furthermore, the lack of a robust follow-up mechanism on court orders is a significant shortcoming. Court decisions must not merely serve as legal pronouncements; they must translate into tangible actions that are duly complied with. The absence of a monitoring system can result in the dishonor of court orders, undermining the authority and efficacy of the family court.
It is imperative to establish mechanisms that ensure the enforcement and compliance of court decisions, especially in sensitive matters like guardianship. The survey also shed light on the absence of fixed guidelines governing the functioning of family courts. Inconsistencies in judicial approaches, ranging from judges directly interviewing children to delegating such responsibilities to counselors, indicate a lack of procedural clarity. Establishing uniform guidelines will not only streamline court proceedings but also contribute to a fair and just resolution of disputes. This is particularly crucial in cases involving minors, where a standardized approach can mitigate potential biases and ensure a more predictable legal environment. A critical aspect that cannot be overlooked is the child-centered approach in family court proceedings. The observations from the Mumbai family court survey underscore the necessity of instilling sensitivity and empathy in the decision-making process. Judges, counselors, and other professionals involved in family court matters must prioritize the child’s well-being, ensuring that their voices are heard, and their interests are genuinely considered. This requires specialized training in child psychology and a genuine commitment to fostering an environment where the child’s welfare takes precedence over any other consideration.
Another pressing concern highlighted by the survey is the broad interpretation of custody decisions, leaving room for ambiguity and potential misuse. The lack of specificity in the criteria for awarding custody can lead to mismanagement and, in extreme cases, corruption. Establishing clear and unambiguous guidelines for custody decisions, rooted in the best interests of the child, is crucial to ensuring fairness, transparency, and the prevention of any untoward practices. Moreover, the issue of legal representation for children in family court proceedings remains a significant gap. While parents advocate for their interests through legal representatives, the child, often the most affected party, lacks a formal voice.
Addressing this gap by providing legal representation or advocates for children in family court matters is essential to uphold the principles of justice and fairness. In summary, the family court system in India, while embodying the principles of conciliation and speedy resolution, faces substantial challenges that impede its effectiveness, particularly in guardianship and child custody matters. Urgent reforms are needed to enhance the prioritization of guardianship issues, establish robust follow-up mechanisms, formulate clear guidelines, instill a child-centered approach, and address the lack of legal representation for children. Only through concerted efforts to address these shortcomings can family courts truly fulfill their role as protectors of the vulnerable and facilitators of just and compassionate resolutions in the intricate web of familial disputes.
References
https://doj.gov.in/family-court/
https://www.indiacode.nic.in/bitstream/123456789/16127/1/a1984__66.pdf
https://www.jstor.org/stable/25740499?seq=3
https://blog.ipleaders.in/aibe-guardianship-adoption-succession/
https://ijtr.nic.in/family%20matters/10%20FAQ%20Role%20&%20Duties.pdf