Written by Kanishka Joshi

Introduction

The Family Courts Act, 1984 was enacted to provide a specialized forum for marriages and family related disputes that burden the ordinary courts and strain affected families. Prior to the Act, family disputes (divorce, maintenance, custody, etc.) were often litigated in common courts under an adversarial civil process. However, observers noted that such emotional disputes required a more conciliatory, less formal approach.

As early as 1953, family court models in China, Japan and Russia inspired reformers like Smt. DurgabaiDeshmukhand she made a proposition to set up Family Courts in India. By the 1970s, the Law Commission in its 59th Report, 1974 and the National Commission on Women explicitly recommended creating exclusive forums to handle family cases and emphasize settlement. The Family Courts Act was thus passed in 1984 “to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs.”

The Act provides a unique model of family litigation, seeking a less confrontational process than traditional civil trials. It sees courts where judges frequently assisted by counsellors and welfare specialists help parties to reach mutually acceptable outcomes, with a focus on the interests of children and women. The objects of the Act are “conciliation over litigation,” “speedy disposal,” and “accessible justice” through more straightforward, less formalistic procedures. These goals address India’s large caseloads and the distinctive social aspects of family conflicts.

The Act, therefore, fills but does not replace current personal laws such as the Hindu Marriage Act, Muslim personal laws, etc., by creating a specialized mechanism for family cases. By law, Family Courts are to be set up in consultation between state governments and High Courts wherever necessary, particularly in metropolitan areas of one million plus population.

As of October 2024, there are around 850 Family Courts functioning across the country as a result of earlier policy efforts (e.g. the 14th Finance Commission suggested 235 additional courts by 2020) but yet to have full coverage. Following, we offer an in-depth statutory analysis of the Act, consider seminal cases interpreting it, criticize its enforcement, and propose reforms (including digitalization and legal aid), concluding with consideration of modern problems such as women’s access and LGBTQ+ rights.

Statutory Overview

The Family Courts Act, 1984 (Act No. 66 of 1984) comprises of six chapters and 23 sections. We will summarize its provisions chapter-wise:

Chapter I – Preliminary (Sections 1–2): Section 1(1) specifies the name of the Act and section 1(2) prescribes its territorial application. Under amendment, the act now extends to the whole of India (earlier Jammu & Kashmir was excluded till an Adaptation Order in 2020). Section 2 includes definitions, such as “family court” is defined to mean a court established under section 3, “Judge of a Family Court” is defined by section 4. These are the provisions that set out the Act’s general scope and vocabulary.

Chapter II – Family Courts (Sections 3–6): Sections empower States, with consultation from their High Courts to create Family Courts and detail the composition and support staff. Section 3 mandates each State Government to organize at least one Family Court in each city or town having a population above one million. The High Court can specify each court’s territorial jurisdiction. Section 4 makes provision for appointment and qualifications of judges of the Family Courts. A judge shall have no less than seven years’ experience as a High Court advocate or equivalent, for example, seven years’ executive experience in law.

Notably, section 4(4) specifies that where both parties to a dispute are women or one is a minor and the other a woman, a female judge shall hear the case. Section 5 empowers the Family Court to engage social-welfare agencies: it “shall be open to a Family Court to secure the services of any institutions or agencies engaged in social welfare… and of any person professionally engaged in promoting the welfare of the family”. Section 6 gives to the State (with the concurrence of the High Court) the power to decide the number of staff in courts, including the appointment of counsellors and other staff on such terms as State regulations may provide.

Ch. II thus sets up Family Courts and outfits them with judges, counsellors, and support staff.

Chapter III – Jurisdiction (Sections 7–8): Section 7(1) gives exclusive jurisdiction to Family Courts in some types of family disputes. The “Explanation” to section 7 enumerates the suits and proceedings covered, such as:

(a) divorce and matrimonial reliefs (nullity of marriage, judicial separation, restitution of conjugal rights), (b) declarations as to validity/status of marriage, (c) suits relating to property of spouse, (d) injunctions relating to marital relations, (e) declarations of legitimacy, (f) claims for maintenance, and (g) guardianship/custody.

Besides that, section 7(2) also bestows upon Family Courts a First Class Magistrate’s jurisdiction under Chapter IX of the CrPC (maintenance of wife, children and parents).Section 7(2)(b) also authorises any other jurisdiction that is conferred by a statute (such as matters relating to Protection of Women from Domestic Violence Act, 2005 or Guardianship Act). The Act therefore consolidates virtually all matrimonial and family law cases into one forum. Significantly, High Courts preserve their initial jurisdiction under previous laws: for instance, suits under the Indian Divorce Act (1869) in regard to Christians and some Muslim legislation persist in High Courts.

Section 8 makes exclusivity possible. The moment a Family Court is set up for a region, regular civil courts (and first-class magistrates) cease to have jurisdiction over the specified matters. All pending suits of that nature automatically come on board the Family Court when it begins operation. Practically, this implies litigants will have to bring all such matrimonial or maintenance cases before the Family Court (subject, however, to any express exception). In total, Chapter III brings family conflicts into the Family Court and excludes concurrent proceedings in other courts.

Chapter IV – Procedure (Sections 9–18): This chapter gives the unique procedure for Family Courts. Section 9(1) requires that, “in the first instance,” the Family Court attempt to help parties settle by conciliation. Judges can adopt any informal procedure they find appropriate, under rules of the High Court, to facilitate settlement, and adjourn proceedings if settlement seems likely.

Section 10 makes it that CPC, 1908 by and large is applicable to Family Court cases (considering the Family Court as a civil court); similarly, procedure under CrPC, 1973 Chapter IX (maintenance) is applicable to maintenance cases. Most importantly, section 10(3) specifically allows the Court to “lay down its own procedure” to assist in settlement or ascertainment of facts. Briefly put, the Court takes the normal civil/criminal procedure as a reference point but is authorized to deviate for conciliation or justice.

The rest of Ch. IV elaborates on this flexibility. Section 11 permits in-camera hearings: either side can request (or the Court itself direct) that proceedings not to be conducted in open court, with an awareness of the sensitive nature of family issues. Section 12 permits the Court to summon experts: “it shall be open to a Family Court to engage the services of a medical expert or such individual… including one person involved in advancing the welfare of the family” to aid the Court. Counsellors and therapists can therefore attend hearings.

Section 13 notoriously limits lawyers: “Notwithstanding anything in any law, no party… shall be entitled, as of right, to be represented by a legal practitioner”. That is to say, unlike most courts, Family Courts do not provide a right to counsel for every litigant (though parties may consent to counsel). The Court can, however, appoint an amicus curiae (a legal specialist) if required in the interest of justice.

(In practice, litigants usually do bring advocates by leave of court; Bombay High Court did hold in LeelaMahadeo Joshi v. Mahadeo S. Joshi[1] that advocates are necessary in “complicated or highly contested” cases and leave to employ them must not be denied. Section 14 permits liberal evidence: the Family Court “may accept as evidence any report, statement, document… which may, in its opinion, aid it… whether or not it would be admissible under the Indian Evidence Act”. Effectively, rules of evidence are liberalized in the direction of discovery of truth. Sections 15–16 further simplify evidence: witness testimony is only to be summarized (with the abbreviated content noted and signed), and affidavits may replace oral evidence for mundane facts.

Sections 17-18 stipulate that judgments of the Family Court “shall be a brief statement of the case, the point for determination, decision thereon and reasons”, and that decrees/orders (except maintenance orders under Chapter IX of Cr.PC ) have equal efficacy to civil decrees and are enforced under the CPC. Procedure is made simpler, therefore, while final orders are enforceable as civil judgements.

Chapter V – Appeals and Revisions (Section 19): Section 19 forms the appellate system. It stipulates that “from every judgment or order” of a Family Court (except a consent decree or order for maintenance under CrPC IX), an appeal would lie to the High Court on matters of fact and law. Appeals shall be preferred within 30 days of the order of the Family Court. 

No appeal is available from Family Court maintenance orders or consensual settlements (those are final except for High Court’s revisional or supervisory jurisdiction). Interestingly, the 1991 Amendment (Family Courts (Amendment) Act, 1991) inserted subsection (5) to maintain a High Court’s inherent jurisdiction to summon records of CrPC Chapter IX (maintenance) cases. Last but not least, subsection (5) excludes any other appeal or revision from orders of the Family Court – the High Court appeal shall be the only remedy. In practice, then, one proceeds from the Family Court to the state High Court (limited appeal on points of law and fact) and there is no further appeal as a rule.

Chapter VI – Miscellaneous (Sections 20–23): Section 20 grants the Act overriding effect – it takes precedence over any inconsistent law dealing with family disputes. Section 21 authorizes High Courts to frame rules (e.g. working hours, summer/winter vacations, procedure for settlement). Section 22 authorizes the Central Government (with the concurrence of the CJI) to frame rules giving additional judge qualifications. Section 23 permits State Governments (consulting their High Courts) to enact rules on other administrative issues: judges’ salaries/terms, terms for counsellors and staff, payment of experts and amicus fees, etc.

Together, the legislative scheme establishes Family Courts with comprehensive family-law jurisdiction (Sec.7), a focus on conciliation (Sec.9), procedural flexibility (Secs.10–18), and restricted appeal (Sec.19). The Act thus represents a special, court-supervised ADR model of marriage and connected disputes.

Landmark Case Laws in Family Courts Act

Since coming into effect, Courts have ruled upon a range of issues under the Act. Some leading judgments highlight important points of interpretation:

Right to Legal Representation (Sec 13): Section 13’s denial of a right to counsel has drawn judicial interest.

In LeelaMahadeo Joshi v. Mahadeo S. Joshi, the court held that in complicated family cases litigants require legal aid and denying permission for lawyers would “handicap” parties, particularly the poor. Bombay High Court thus warned that “in the absence of cogent reasons, leave of representation by lawyers should not be denied”. This historic judgment practically accepted that courts must allow representation in Family Courts if required, even if the Act literally prohibits it. Later, when Section 30 of the Advocates Act, 1961 was enacted in 2011, it officially enabled advocates to appear in Family Courts, and courts now give such permissions as a matter of course.

Role of Social and Welfare Agencies (Sec 5): The Act contemplates support to the Court by counsellors and welfare specialists.

In RomilaJaidev Shroff v. Rajnikant Shroff (Bom HC, 2000), the Court underscored this collaborative role. Noticing that the Act empowers judges to seek assistance from any organization involved in social welfare and “persons devoted to the cause of promoting the welfare of the family,” the Bombay HC ruled that a Family Court is “at liberty to take assistance” of social agencies and can permit such persons to join the court as part of its initiative to resolve disputes. This ruling shows that courts should be in the habit of using counsellor reports and NGO submissions to settle family matters, according to the intention of the Act.

Maintenance Proceedings: The Act gives Family Courts jurisdiction regarding maintenance under CrPC (Sec7(2)). Therefore, if there exists a Family Court, maintenance petitions by wives or children, parents are to be filed with it. For instance, in Naveen Kohli v. NeeluKohli, the court held that once Family Court jurisdiction is attached, ordinary civil courts cannot entertain applications for maintenance. (This is a consequence of Sec 8(a) excepting civil courts.) Likewise, pending maintenance cases before magistrates’ courts are shifted to the Family Court with its creation. These orders emphasize the exclusivity of Family Courts for maintenance under the Act.

Contemporary and Intersectional Issues

Modern concerns cut across the Family Courts Act’s framework, raising questions of inclusivity and equality:

Women’s Access to Justice: Women form part of the Act’s main beneficiaries since the majority of family conflicts (e.g. maintenance, custody) concern wives/mothers. Nevertheless, as indicated, socio-legal barriers tend to hinder their access. The Act does not involve gendered courtrooms or judges (save where both litigants are female), but other feminist reforms such as the Domestic Violence Act have their courts/helplines. Women in low-income or rural areas are unaware of the existence of Family Courts. Legal awareness camps, NGOs, and local media need to be utilized more for outreach. Family Courts should also liaise with Anganwadi and women welfare departments to safeguard child welfare and women’s rights in family cases.

Alternative Dispute Resolution (ADR) in Family Law: The Act itself integrates ADR by statute (conciliation, counselling). Contemporary practice increasingly looks to ADR for quick family dispute resolution. Many courts now employ family counsellors and have tie-ups with NGOs for mediation. There is also talk of court annexed mediation (similar to civil courts). However, care must be taken that ADR in family matters respects power imbalances; for example, a violent spouse should not be allowed to “bully” a settlement via mediation. Best practices (from NALSA or international models) recommend screening for domestic abuse before requiring mediation. Expanding the Act to include such safeguards – e.g. requiring a protection order under PWDVA before mediation in contested divorce cases – could protect vulnerable parties.

LGBTQIA+ Rights under Family Law: The Act was written for straight marriages and conventional families. It remains mum on gender identity or same-sex relations. Family Courts will be confronted with new challenges as legal acceptance of LGBTQ+ relationships progresses. For instance, the Madras High Court (2025) ruled that same-sex couples “can constitute a family” even if there was no marriage, upholding the “concept of ‘chosen family’” in LGBTQIA jurisprudence.

Although the Act does not define “family” through marriage, many queries linger, such as “Can a Family Court entertain custody disputes where parents form a same-sex couple in a civil union?” Should courts recognize inheritance claims of a transgender spouse under personal law? These raise queries that encourage amendment or judicial interpretation.

At present, an LGBTQ+ individual (as a sole party) may petition for maintenance or adoption under general statutes, but a same-sex partner is not necessarily “party to the marriage” dissolution because no marriage exists. Adoption law also bars cohabiting LGBT couples: existing laws permit only married couples or solo individuals, essentially excluding gay couples from adoption. The Family Courts must be ready to enforce the principle of equality (Article 21) in such situations. Judges have up to now occasionally employed broad language to safeguard queer families (e.g., invoking “custody in the interest of the child” even when the “guardian” is a lesbian partner), but repeated guidance is needed.

Conclusion

The Family Courts Act, 1984 stands as a pioneering attempt to humanize family justice in India. Its comprehensive statutory provisions (Chapters I–VI) establish a scheme of specialized courts, judges, and processes aimed at conciliation and speed. Landmark judgments have interpreted the Act’s clauses to preserve litigants’ rights (e.g. permitting counsel) and to reinforce its settlement mandate. Yet, in practice the Act often falls short of its goals due to resource and training gaps. Addressing these gaps – through legislative amendment, administrative investment (more courts, staff, technology), and court-level reform (training, ADR protocols) is essential.

Finally, the Act must adapt to changing social norms. Women’s empowerment, LGBTQ+ recognition, and digital transformation all bear on family justice today. For instance, courts are now enjoined to view marriage and family in a broader sense than the Act’s 1984 framers imagined. Ensuring the Act works fairly for all Indians, regardless of gender or orientation, will require both statutory updates and sensitive judicial application. In sum, the Family Courts Act remains vital to India’s legal landscape, but realizing its promise demands sustained attention to the issues of implementation and equity identified above.

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Reviewed by Jeet Sinha and Astha Priya.

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[1] AIR 1991 Bom 105.