CHAPTER VII

Conclusion and Suggestions

Family is the basic unit of a social system. The success in marriage and

family relationship will strengthen the stability of the community and will enrich

the future generations. Hence, for the protection of society, families are to be

protected. Every successful marital relationship is the result of love, faith and

justice, and it leads to a wider perspective on family relations and social

commitments. A stable family relationship can achieve a stable, effective and

powerful marital life.

Globalisation, attitude towards the capitalistic culture, impact of social

media and information technology are forcefully affecting the rhythm of the

family life. The consumeristic and market-oriented culture and values are

drastically infiltrating the lives of the common people. The education,

industrialisation, urbanisation, migration and globalisation have affected the

patterns of marriage and the institution of family. Inequality, domestic violence,

injustice, patriarchy, and market value system are affecting the Indian families,

particularly the lives of the Keralites. It has distorted the traditional values and

customs of the family and has eroded the brotherhood and social commitment.

The modern family concepts have also been drastically transformed by the

information technology and mass media. It has created consumerism and cultural

breakdown of families. The influence of the new economic polices, Gulf

migration, luxurious life and techno-centred life style are creating the family life

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in a mechanical situation. The social evils such as drug addiction, media

addiction, and alcoholism have affected in the essential functions of the family

life. The early migration of children from their parents, the disconnection of the

traditional religious and social relations, job stress, mental illness, and extra

marital relations have affected the sanctity of the marital relationships.

Social stability is the most important factor in a healthy family. In a stable

family people live together in harmony, peace and justice. So the family court

structure, process and functions preserve a marriage where it has broken down

irretrievably, or dissolves it with maximum fairness and minimum bitterness,

distress and humiliation.

In the context of the growing family disputes, the Government of India

established the Family Courts Act in 1984 with a view to promote conciliation

and speedy settlement of family disputes. Thus, the Family courts are specialized

courts which were established with the objective of maintaining the welfare of

the family by utilizing a multidisciplinary approach to resolve family problems

within the framework of law. The family courts aim at securing the legal rights of

the individuals on the one hand, and undertake the role of a guide, a helper and a

counsellor on the other, to enable families to cope with their problems, and

establish family harmony, following the principle of dignity of the individual and

equality of the status of both the sexes. Family courts have been established to

provide facilities of a legal and non-legal nature, so that all the issues can be

resolved in one forum.

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 In the Indian Family laws, there are different personal and special

matrimonial laws in force covering matrimonial and allied matters. The family

court has jurisdiction to settle the disputes under all these enactments. Thus the

Family Court Act is only a procedural statue. Hence the Act does not override

personal laws, but provides an alternative adjudication forum of dispute

resolution. The right and obligations of the parties to the disputes are to be

decided as per their personal or matrimonial laws. Though the Indian family

courts provide the alternative dispute resolution through mediation and

counselling, it is inefficient in many occasions due to the unskilled mediators and

inefficient counselling system.

When, compared to the Indian family courts, that give more emphasis to

the stability of the family, the ones in the USA, the UK and Australia give more

emphasis to the welfare of the children. Though the family courts provide

amicable dispute resolutions, there is still a great increase in divorce and family

breakdowns everywhere. The same sex marriage, live-in-relationship, and non–

registration of marriage are the new challenges in the family court disputes.

Unity in diversity is the hallmark of Kerala culture and heritage. However

the unity of the family system in India has undergone vast changes and affected

its structure and functions. The socio-economic and cultural structure of Kerala is

becoming more complex in the era of globalisation. Though the state of Kerala

has achieved tremendous progress in many social sectors, conflicts and

disintegration of the family are in every sphere.

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 The problems of family relationships and the emerging nature of family

disputes reveal the importance of family courts. Marriage, divorce, succession,

inheritance and maintenance can be the matter of a secular nature, and law can

regulate them. Therefore, India needs a codified law which will cover all

religions in relation to the personal laws of different communities. It is necessary

to introduce the irretrievable breakdown of marriage and mutual consent as the

grounds of divorce in all cases. It is better to introduce a uniform code of

marriage and divorce by law as a solution for unhappy marital situations.

Therefore, an effective reform of the law of marriage is needed for a uniform law,

which is applicable to all people irrespective of religion and practices in India.

The State Government of Kerala established the family courts (Kerala)

rules in 1989. In exercise of the powers conferred by Section 23 of the Family

Courts Act of 1984 (Central Act 66 of 1984), and in consultation with the High

Court of Kerala, the Government of Kerala and also formulated additional rules

in 1990.

The family courts in Kerala have increased rapidly in the last ten years.

From three family courts in the year 1992, it has increased to 28 in the year 2015.

It is estimated that Kerala has the highest number of family courts per population.

It has 28 courts for 3.38 million people, whereas Delhi has only 15 family courts

for its 18.2 million people, and Uttar Pradesh has only 75 family courts for its

215 million people.

Therefore, the state of Kerala has the highest number of family disputes

and family courts. Many of the legal experts suggest that every revenue district in

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Kerala needs at least three to five family courts for the settlement of the disputes.

The family court records reveal that financial reasons, drug addictions,

extramarital relations, mental disorders, sexual dissatisfactions, and suicide

attempts are the major reasons for filing the cases in the family courts. The other

reasons for family issues include ego problem, adjustment problems with the

family of the husband, the utopian concept of the family and relations,

differences of family traditions, high influence of parents, and the impact of new

information technology and social media creating family disputes and tensions

within the institution of family. Though the Indian family courts provide the

alternative dispute resolution through mediation and counselling, it is inefficient

in many occasions due to the unskilled mediators and inefficient counselling

system.

The filing of cases is drastically increasing in the family courts in the

State of Kerala. Last 9 years' records of the family court (2005 – 2014) reveal an

increase in the filing of suits in the family courts, but the number of the disposal

of cases does not increase. Hence the backlog of cases increases every year,

which results in a delay in delivering justice to the common people. The family

courts in Kerala have witnessed a huge increase in the divorce cases over the last

nine years from 2005-06 to 2013-14. In fact, there is a 115% increase in filings of

divorce cases in each year between 2005- 2014. Divorces have been assuming a

new dimension, and factors such as the incompatibility of personalities and the

egos of individuals and disharmony are increasing in the families. This study

reveals that in 2005-06, 8446 divorce cases were filed and the number of divorces

has been towering. Of the 57051 cases filed in 28 family courts in Kerala (2013-

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14), 19905 were divorce cases, i.e., 33% of the litigants in the family courts in

Kerala are seeking divorce. It also reveals that out of 28 family courts in Kerala,

Ernakulam family court has the highest number of divorce petitions (1752),

followed by Thiruvanathapuram (1528), Mavelikara (1311), Thrissur (1211) and

Pathanamthitta (974) in the year 2013-14. The mutual consent divorce is also

increasing, since the procedure is very easy and mere consent of the couple was

enough for granting a divorce. Changes in the divorce law allow couples to get a

divorce by mutual consent. Thus, in the family courts the divorce is an alternative

to the marital disputes. Though the family court is providing a fair and just forum

for handling family disputes in the present family court system, the women and

children are remaining insecure within their families and societies. This situation

prevails not only in the state of Kerala but also everywhere in India with minor

differences.

Since the family courts provide speedy and amicable settlement of

disputes in Kerala it is burdened with huge case logs and cannot dispose them in

a timely manner. After the three decades of its commencement, the family court

does not appear to have achieved success in the promotion of conciliation and

secure speedy settlement of family disputes. The system lacks the trust of the

majority of litigants regarding its competence to provide a fair and just forum for

handling family disputes. The backlog of cases and the increasing number of

divorces in family courts reveals that, it has to go a long way to accomplish the

objectives implied in the Family Courts Act.

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7.1 Major Findings

This research study substantiates the hypothesis framed at the beginning

that marital break downs are rising in Kerala, that the family courts, that are

overburdened with too many cases, are unable to dispose the suites in a timely

manner are insufficient and ineffective, and that the family courts are inadequate

to achieve its objectives are verified and found correct. Therefore, based on the

research study covering various topics related to the family and family Courts in

Kerala, the following are the major findings:

1. The Family Court Act provides the speedy and amicable settlement of

family disputes, but the data collected by the researcher from the family

courts reveal that family courts in Kerala have witnessed a huge increase in

matrimonial disputes and are unable to dispose them in a timely manner.

Thus the very objective of speedy disposal of cases has not been

materialised.

2. Though the family courts aim to protect and preserve the family, the study

shows that divorces, especially mutual-consent divorces, are increasing. It

reveals that in family disputes, divorce is an alternative to marital problems.

3. The Family Courts Act prefers women as Judges, but most of the family

courts have male judges. The study also indicates that the lack of

infrastructural facilities and inadequate number of staff affect the effective

functioning of the family court system.

4. The Family Court Act wants the family court to be different from the

regular court in the processes and structures of the litigations. But in

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 practice it is not much different from the regular one. Its infrastructure

and existing methods of mediation and counselling are ineffective for an

amicable settlement of family disputes.

7.2 Suggestions

In the view of the research study on family courts in Kerala, the following

are the suggestions for the effective functioning of family courts.

7.2.1 Legal Representation

Earlier, advocates could appear for the parties in a Family Court only on

sanction given by the court. So it was easy for the court to assist the parties to

arrive at a reasonable and amicable settlement. But as per the amendment of the

Advocates Act, no sanction is necessary, and Advocates could appear for the

parties as of right. Advocates appearing in Family Courts should have a better

understanding of family conflicts and their appropriate disposition. It is better to

the avoid interference of lawyers and the affected victims should be permitted to

present their cases directly. The State Government should introduce a law making

it mandatory for advocates to provide free legal advice to the illiterate and

economically weaker parties.

7.2.2 Legal Aid and Counselling

A congenial setup must be provided for the Judge and the Counsellors to

help the couples discuss and resolve their disputes smoothly. Adequate number of

trained and experienced counsellors should be available to cope with the pressure

of work. For greater interaction the availability of efficient and skilled

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counsellors should be increased. They should be available for more time. Cases

should be thoroughly investigated. This system would facilitate the speedy and

amicable disposal of cases.

7.2.3 Case management system

It is desirable to have a collegium attached to every Family Court

consisting of 3 or 4 members, including women, to which every petition filed

before the Family Court could be referred for reconciliation before it is taken on

file of the court. So that, matters which could be settled at the initial stage could

be settled once and for all, without dragging the parties to the court. By doing that

multiplicity of litigation could be prevented, and pendency in courts could be

brought under control.

Family Courts require proper and intelligent management. The judge of a

family court shall be a judge of heart rather than a judge of head. A humane

approach to the family problems will go a long way in settling the issues

amicably. There should be sufficient number of judges for quicker disposal. This

would reduce the time span for the cases that remaining pending. The

infrastructure of the court, and supporting staff should be strengthened.

The interval between hearing dates should be reduced. A proper system

should be followed and cases should be taken up for hearing in the order in which

they are listed and displayed on the notice board. Women judges should be

appointed. A simple hand-written application should be accepted by the court.

Public awareness about the institution of family court should be created.

Follow-up services after reconciliation should be evolved and monitored.

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7.2.4 Timely settlement

The disposal of cases should be less time-consuming. Cases should be

decided in a limited time frame. The procedure should be shortened and

simplified. Easily accessible adequate number of family courts should be

established.

7.2.5 Improvement of Administration and Infrastructure

Essential public conveniences and facilities such as copying and

availability of stamps should be provided in the premises of the court. Auxilliary

services should be available in the court premises. The court staff should be well-

trained to manage the system. Reconciliation process should be strengthened.

Retired judges, NGO's and social workers must be encouraged to serve as

mediators and to facilitate the smooth functioning of the Family Courts.

The working environment for the family court staff must be improved.

There is an urgent need to provide proper infrastructure facilities. Good drinking

water facilities, clean and hygienic toilets, both for men and women, must be

provided. Proper arrangements must be made for visitors and clients.

With today's technology, multiple facilities can be linked by computer or

other electronic systems to allow information-sharing and networking. IT system

should be introduced in the family courts, which will enable the citizens to

litigate a dispute through electronic means. A software must be developed in

order to cater e-litigation, including e-filing, e-payment of court fee, file-tracking,

and document management.

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