ommon cases heard in family courts

  • Dissolution of marriage

India is one of the countries with the largest population, due to which there are many married couples in the country. While having this large number of married couples, there will be more chances of having more cases of disputes between the couples and their family. And for seeking remedy they will surely approach the courts. 

In India, the family court can accept the appeals for grant of decree of divorce under various acts like Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce) Act, 1986, the Parsi Marriage and Divorce Act, 1936, the Divorce Act, 1869, the Special Marriage Act, 1954, Foreign Marriage Act, 1969 etc. For the dissolution of Hindu marriage, one can file an appeal for divorce under Hindu Marriages (validation of proceedings) Act, 1960.

In the case of Reddy Anada Rao v. Ms Totavani Sujatha, the appellant and the respondent were living their life by following Christian religion but they got married as per the Hindu rituals in a Hindu temple. The appellant i.e. the husband claimed that he was forced to marry the respondent therefore, he appealed for the dissolution of his marriage and to set aside his marriage certificate. The question was raised by the office of the family court that the marriage was itself null and void as per the provisions of Hindu Marriage Act, 1955 so there is no need for the suit. The judge held that the appeal for dissolution of marriage is not maintainable in the family court as Section 5 and Section 11 of the Hindu Marriage Act has clearly laid down that the marriage is null and void if it has been done with coercion or without the consent of any party. Later, the husband appealed in the High Court for which the court held that as per the Explanation (a) of Section 7 of Family Courts Act, 1984, the family court has jurisdiction in the concerned matter. As per the provisions of this act, the family court has jurisdiction over the disputes arising out of the marriage of any caste or creed. 

  • Child custody

The explanation (g) in Section 7(1) provides that the family court has jurisdiction to grant the custody of the child to a proper person and to make that right person the guardian of a minor. The cases related to the custody of the child are filed before the family court where he usually resides. For example, if the father is residing in Uttar Pradesh and the mother along with the minor child is residing in Mumbai and the father wants to have custody of the child then he has to file the case in Mumbai’s family court. Thus, the family court has exclusive jurisdiction over child custody cases. The family court has also the power to accept the petitions made under the Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. 

  • Security orders- domestic violence

The family courts act has not specifically mentioned the jurisdiction of the family court in matters of domestic violence. And this is the area where family courts are lacking. Though the act hasn’t made any provision related to the matters of domestic violence. However, there is a provision under the Protection of women from Domestic Violence Act, 2005(hereinafter DV Act), according to which the family court can entertain the matters related to domestic violence. The DV Act is not wholly a criminal law; it has also granted powers to the civil and family courts. As per Section 26 of the DV Act, the victim can not only claim relief from the Magistrate but also from the family court and other civil courts. 

In the case of Sudhannya K.N. vs. Umasanker Valsan (2013), the Kerala High Court discussed the scope of DV Act and held that the scope of DV Act is wide as it guarantees rights to women to approach either magistrate or family court for filing suit according to her comfort zone. The court also held that the family court has the power to pass the interim protection orders as well as interim residence orders under Section 26 of the DV Act. 

However, Section 26 is not used adequately because the powers of the family court are not properly described as in the matters related to domestic violence and also the family courts are not clear about their jurisdiction under Section 26 of the DV Act. Due to this, most of the victims approach the Magistrate instead of the family courts. 

  • Maintenance 

Under the family court act, explanation(f) of Section 7(1) clearly provides that the family courts have jurisdiction over the suits or proceedings for maintenance. Also under Section 7(2), the family courts have the power to exercise a jurisdiction which is exercised by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, 1973, which is related to maintenance of wife, children and parents. This means the family courts can grant maintenance under Section 125 of CrPC. 

The Supreme Court recently in the case of Rana Nahid v. Sahisul Haq Chisti (2020) has given a contrasting judgement over the jurisdiction of the family court under Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act). The facts of the case are: a Muslim woman moved to the family court of Ajmer under Section 125 of CrPC for claiming maintenance from her husband as she was harassed for dowry and was thrown out of the home. The family court accepted the application made under Section 125 of CrPC, as an application under Section 3 of the 1986 Act. The family court ordered the husband to pay Rs 3 Lakh to his wife and Rs 2000 every month for the maintenance of his child. 

The husband moved to the High Court against the order of the family court and questioned the jurisdiction of the family court under the 1986 Act. The High Court held that the family court has no jurisdiction to pass such an order under the 1986 Act. However, the petitioner can approach the Court of competent Magistrate under Section 3 of the 1986 Act. The wife approached the Supreme Court against the order of the High Court. 

Justice Bhanumati was of the opinion that the family court has no jurisdiction for accepting an application filed under Section 3 of the 1986 Act. She supported her opinion by saying that Section 3 of the 1986 act confers exclusive power on the Magistrate of First Class to entertain applications made under the said section. She also made reference to the judgements passed by various High Courts. However, Justice Indira Banerjee holds the position that the family court has the jurisdiction for accepting applications made under Section 3 of the 1986 Act. She held that the preamble of the Family Courts Act suggests that it is a secular statute which means all the laws are applied in the matters irrespective of the religion. Also, Section 7(1), of the act provides that the family court has the same powers and jurisdiction as of a District or Subordinate Civil Court to entertain suits or proceedings for maintenance. She also made a reference to the principle of equality under Article 14 and Article 15 of the Indian Constitution and extended the jurisdiction of the family court for the benefits of Muslim divorced women. 

  • Property disputes

As per the explanation (c) of Section 7(1) of the family courts act, the family court has jurisdiction over the disputes related to the property of the parties to the marriage. Generally, the disputes between the parties to the marriage arise when the decree of the divorce has been passed. The family court can entertain the suit or proceeding related to the disputes of the property of the parties of the marriage by satisfying two conditions:

  • Such a dispute must have arisen between the parties to the marriage only;
  • Such a dispute must have arisen due to the property of either party. 

In the case of Mrs Mariamma Ninan v. K.K. Ninan (1997), the petitioner i.e. the wife approached the family court for the partition of the property and claimed her separate possession as she also contributed Rs 3 lakh for the construction of the property. The family court didn’t accept the petition and directed the petitioner to file a Civil suit. However, the High Court set aside the order of the family court and held that the said matter falls under the jurisdiction of the family court as per Section 7(1) of the family courts act. The high court held that the family courts have jurisdiction to entertain the disputes related to the partition of the property of the parties to the marriage. Therefore, the high court resend the matter to the family court and directed the court to entertain the matter and settle the dispute.  

#familymatterscaseslawyerindelhi

#familymatterslawyerindelhi

#familycasesmattersadvocateindelhi

#domesticviolencecaseslawyerindelhi

#domesticviolencecasesadvocateindelhi

#Divorcecaseslawyerindelhi

#Marriagecaseslawyerindelhi

#advocateindelhi

#bestadvocateindelhi

#lawyerindelhi

#bestlawyerindelhi

#lawfirmindelhi