Manav Chakraborty 22010567

RESEARCH PROPOSAL:
Introduction

The establishment of Family courts in India was an age-old historical idea stretching back to
the 1920s and 30s. It especially gained traction during the 1980s, which witnessed an
explosion of new-age women’s rights movements. The main aim of these movements was to
usher in radical legislative changes, particularly in areas where women were the most
vulnerable and faced the brunt of violence – rape, wife murder and dowry and other related
offences. It aimed to shift matrimonial and maintenance legislation away from district courts
and magistrate’s courts to special Family Courts. The main ideological premise behind the
enactment of the act was the creation of women-friendly adjudication spaces away from the
technicalities and legal jargon of adversarial court systems. There was a conscious shift in
approach to make justice more accessible and fathomable to women from weaker and
marginalised sections and ensure they do not face the same discrimination and sexism they
faced in traditional court systems. To achieve these aims, steps were taken to reduce the role
played by lawyers and shift this dependence on counsellors to help aid the parties in reaching
a more amicable and cordial solution. An implicit attempt was made through the enactment
of this act to embed the notions of gender justice in our judicial system and provide a strong
legal framework for the protection of women.

Even though there was a noble and bona fide intention behind the introduction and enactment
of the act, however, there was a huge chasm between the fruition of these objectives and the
actual provisions. Through this research proposal, we argue that some of the provisions of the
Family Court Act which prioritises the ‘preservation of family’, and the institution of
marriage may not be synonymous with the protection of women’s rights.

Summary

1st Reading: Family Courts: A Critique by D Nagasaila1

1
D. Nagasaila, ‘Family Courts: A Critique’ [1992] EPW 1735.
This reading talks about how the traditional, formal adversary system is unsuited to the needs
of family disputes as they rely on an objectivist and impersonal approach, where they are
bounded by precedents and prevented from contextual, case-by-case decision-making. In
response to these drawbacks, family courts have been introduced to ensure parties have more
capability and control over their cases and an individualistic approach can be taken.

However, the author argues that a fundamental proposition often assumed but not borne by
reality is that both men and women are equally placed at the negotiating table. As seen in
most cases it is the man who inevitably is the dominant party which unfortunately puts the
woman in a weaker position. Therefore, the danger always lies that the woman could be
compelled to enter into compromises which imperil her safety and interests.

The author then points to the repeated emphasis that the objects and reasons and even
provisions of the Family Courts Act have made on the preservation of the institution of
marriage and how in the appointment of judges, "every endeavour shall be made to ensure
that persons committed to the need to protect and preserve the institution of marriage and to
promote the welfare of children... are selected". The author contends that this continual
emphasis on the preservation of marriage works against the interest of women as, the family
is the place where they are the most vulnerable, tyrannised and subjugated to violence and
mistreatment. The most odious and abominable crimes against women, like dowry deaths,
and wife battering, take place within this ‘holy’ institution. A similar case is made out that
even though the protection of children is essential when it is done at the expense of women, it
marginalises their needs and blurs their prospects. Consequently, an undue emphasis on
preserving marital unions and ensuring the welfare of children within the framework of this
act could potentially undermine its original and overarching purpose: the safeguarding and
empowerment of women.

Nagasalia also draws our attention to the inherent limitations which a formalised conciliation
process presents us with. Under the Family Courts Act, the choice of mediators is not at the
discretion of the parties and is obligatory under its provisions. Furthermore, the provisions of
the Family Court Act even allow the judge to play the dual role of both conciliator and judge,
thereby endowing him with a considerable degree of power over the parties before him. In
such a framework, where a person who wields a sizable magnitude of power over both parties and has
been designated as the person entrusted with preserving the existing marriage between the two parties,
there is a strong inclination for him to settle as many cases as he can. This would even mean going
against the welfare and best outcomes for women because the judge might have a vested
interest in preserving the Court and his own time and it would be better for them if disputes
are settled out of court rather than making it to the proceedings stage.

Similarly, the author also contends that even though the statute excluding lawyers from the
ambit of Family Courts had been well-intentioned, it has to some extent made women more
susceptible at the hands of law. The rationale behind excluding lawyers was that there is a
certain pre-conception attached to their work, that their interest lies in driving wedges and
creating more hurdles and obstacles to justice and since Family Courts intended to move
away from a formalised judicial structure, the exclusion seemed justified. However, delving
into the intricacies of our law system is an arduous task, which majority people in our country
are not accustomed to, especially parties who are vulnerable and at risk. Lawyers act as a
protective cushion or barrier between the woman and other parties involved and shield them
from any kind of danger or potential harm, either mental or physical they might face. They
help create an equilibrium in the power dynamics and act as guardians who protect the
woman from being exploited or deprived of her rights.

2nd Reading: Judges of Normality: Mediating Marriage in the Family

Courts of Kolkata, India2

This article by Srimati Basu presents an ethnographic study of the everyday hustle bustle of
the Kolkata Family Court to evaluate the practical implications of the reformative and
feminist legislation, i.e., the Family Courts Act 1984. This article seeks to critique the notion
that replacing the formal, adversarial legal structure with mediation and other dispute
resolution mechanisms provides better results and outputs for women while also criticising
the logic which legal processes adopt in respect to marriage. Simultaneously, she also argues
how the law continues to be embedded in deeply restrictive and sexist conceptions of
conjugality and provide women with only limited spheres of legal autonomy. The article by
conducting interviews with counsellors, judges and litigants aims to examine how law
reinforces notions of authority, violence and labour in marriage, while at the same time
paradoxically appearing to act in the best interests of women.

2
Srimati Basu, ‘Judges of Normality: Mediating Marriage in the Family Courts of Kolkata, India’ [2012] Signs
492
The author begins by stating how Family Courts have often conflicting and uncertain
viewpoints of divorce, which extends to power dynamics and violence within marriages. This
ambiguity is best reflected according to the author in the objects of legislation, which states
that Family Courts have been set up with a “view to promote conciliation in, and secure
speedy settlement of disputes related to marriage and family affairs.” Conciliation as a term
may encompass several connotations, which might be open to different interpretations.
Conciliation, in light of the purpose of the Act, was meant to be a form of conflict resolution
mechanism which would serve as an alternative to the formal, adversarial system. However,
conciliation is frequently confused with reconciliation, a concept with an entirely distinct
meaning and context. The author exemplifies the dangers which might arise from this
misrepresentation through her case studies and interviews with counsellors, who seemed to
take delight in the reunions they brought about.

One of the cases featured an account of a counsellor named Shopna in Kolkata, who talked
about was how a daughter in-law who was being physically and mentally abused by her
parents’ in-law and wanted separation was made to sit down with all the family members and
through some counselling was made to move back to her husband’s home. In another case,
the husband was extremely controlling and paranoid and slashed his wife so horrifically that
she almost lost three buckets full of blood. The wife lied about the real reason for the injury,
so that the husband would not lose his government job which in turn would entail her to lose
maintenance for herself and her children. What these two accounts exemplify is that
according to counsellors the most optimal solution for them in any marital dispute is
reconciliation, regardless of how severe and dire the circumstances are in the marriage, with
the only positive takeaway being greater freedom and mobility for women.

The general takeaway which the author deduced from all her experiences was that
counsellors overarching priority always remained in securing an agreement for their wife,
which according to them left them in a more advantageous position with a vigilant ally rather
than taking a strong anti-violence stance, as given the societal norms regarding marital
relationships in our country, it would not be a pragmatic option. Similarly, due to the way
labour markets in our country are distributed, it would be more viable. The role of
counsellors, in their own words, is ensuring a woman’s “strategic survival within an existing
marriage.”
3rd Reading: Adjudicating 'Litigotiation' Cases Filed in the Mumbai Family
Court3

This research paper by Prashant Iyengar aims to offer a quantitative snapshot of the inner
workings and operational process of Indian Courts. The Author endeavours to do so by
examining the extensive data published by National Informatics Corporation (NIC), on its
website about the thousands of lower court judgements and other pertinent information
relating to the Maharashtra judiciary. Through his research he aims to shed light on how
patterns of discrimination are still very much prevalent in our judiciary, particularly
adjudication of women’s economic rights.

When talking about case disposition in Mumbai Family Courts, one thing which immediately
struck the author out was how significant was the number of petitions which were disposed of
“without entering into merits”, mainly due to a determined effort by the Court. This is even
further exemplified by the data demonstrating that almost in 32 percent cases resolution
arrives by means of mutual settlement between the two parties. The author views such high
numbers as unsurprising due to the emphasis which the Act has put on settlement and
conciliation. The author questions whether such a high number is a genuine reflection of the
policy goals of the Act being achieved or rather a compelled mediation being forced upon the
women without adequate consideration for their best interests.

Another notable figure which Iyengar highlights is how strikingly high attrition rates are for
cases involving marital property and maintenance under the CrpC and Hindu Adoption and
Maintenance Act. This exorbitant rate demonstrates the latent gender bias still very much
ingrained within our judicial system and the impediments which women have to surmount to
in order to realize the rights they are entitled. Furthermore, a miniscule rate of 1 to 3 percent
in respect of these categories highlight that these kinds of suits are strenuously contested by
husbands further expounding the difficulties and hardships faced by women.

When trying to construct a narrative from these statistics, the author suggests, according to
his data, that when the average litigant would bring a case in the Family, it has a 32 percent
chance of it culminating in a settlement. As previously highlighted, this is not surprising
considering the thrust of the Family Court lies in bringing forth more settlements and
negotiated resolutions. While ordinarily, this would be seen as a positive development,

3
Prashant Iyengar, ‘Adjudicating Litigotiation: Cases Filed in the Mumbai Family Court’ [2016] EPW 40
however in light of various studies and research findings this has to be treated with caution
and heed. Studies in the U.S have shown that even though judicial time has been freed up by
shifting more cases to mediation so that Courts may deal with more pressing and substantive
cases, this has not transpired in reality. According to the author, his findings of the Mumbai
Family Court seem to attest to this proposition as even though a high number of cases in the
Family Court have been settled or referred to mediation, other more serious matters like that
of maintenance petitions consider still taking an average of 2 years to dispose of.

4th Reading: Arriving at A Settlement Under Family Courts Act, 1984:

Deconstructing the Role of The Judge of The Family Court and Counsellor4

This research paper by Professor Daniel Matthews traces the widespread adoption of
Alternative Dispute Resolution mechanisms by legislators across the world due to it being the
most viable and pragmatic option, in dealing with multifaceted challenges plaguing their
judiciary. In Indian context too, policymakers have increasingly embedded provisions based
on dispute resolution methods as the best feasible option to deal with issues such as docket
explosion, protracted waiting periods among other issues. The flagship provision dealing with
issues related to Personal Laws, i.e., Family Courts Act 1984 is no exception. However, the
author contends that compelled dispute resolution instituted in the Act is susceptible to being
abused, especially where there is a power imbalance between the two parties, and that a
similar problem besets the Family Court Act.

The author contends that even though it is a laudable and necessary initiative taken by
legislators in context of marital disputes, concerns in respect of its excessive push have
arisen. Judges in Family have oftentimes tried to treat Family Courts in the same manner as
formal courts and have tried imposing their views and attempted to solve issues by adopting a
narrow and restrictive view on the matter, rather than trying to arrive at consensus or
settlement. The judge’s role is to act as conciliators and try to reach a broad-based consensus
between the two parties where their interest is kept in consideration and the relationship is
still salvaged. However, keeping in mind the limitations which judges face in discharging this
onerous burden, provisions have been made for assistance by experienced and trained
counsellors.

4
Daniel Matthew, ‘Arriving at A Settlement Under Family Courts Act, 1984: Deconstructing the Role Of The
Judge Of The Family Court And Counselor’ [2014] JILI 376
Provision for counsellors have been made in the Family Courts Act to ensure that the best
possible assistance is provided to the litigants and a personal, informal approach maintained
to keep the parties at ease. Unfortunately, there have routinely been charges of intimidation,
harassment and misrepresentation by counsellors as to important aspects such as cost, time
and possibilities and an urgency on their part to settle disputes as expediently and urgently as
they can. Such an approach goes against the spirit of the Act and denies women the
representation and support which the Act aimed to provide them with. What makes this even
worse is that stories of success are spare and constant blemishes due to lack of proper and
adequate support, infrastructure and effective guidelines thwart the effectiveness and
efficiency of family courts.

RESEARCH QUESTIONS

Q) To what extent does the preservation of marriage, as emphasized in the objectives of the
Family Court Act, conflict with the interests and well-being of women, particularly in cases
involving domestic violence and gender inequality?

Q) Have the Dispute Resolution Methods as envisaged by the Framers of the Family Courts
Act, 1984, proven more beneficial for women in terms of achieving improved outcomes and
results when compared to the formal legal structure?

METHODOLOGY

1. Qualitative Interviews: We seek to interview individuals who have interacted with

Family Courts in some capacity or had experience working in one either as a
counsellor or judge.

I. How old are you?

a. Below 18
b. Between 18 to 25
c. 25-35
d. 35-45
e. 45-55
f. Older

II. Marital status

a. Married
b. Divorced
c. Widow

III. Which State do you belong to?

IV. Educational background?

a. Incomplete schooling
b. High school graduate
c. Undergraduate
d. Post graduate

V. How was your experience with the family court proceedings?

a. Positive
b. Neutral
c. Negative

VI. Are you familiar with the objectives and provisions of the Family Court Act?
a. No
b. Yes
c. Partially

VII. From your experience, do you believe that family courts lay more emphasis on the
preservation of marriage than on the wife's well-being?
a. Yes
b. No

VIII. Do you think Family courts ignore the condition of the wife and her suffering and
instead focus on reaching a settlement?
a. Yes
b. No

IX. If your case was related to domestic violence or cruelty, how effective do you
think the family court is when dealing with cases as mentioned above?
a. effective
b. Relatively effective
c. Relatively ineffective
d. Ineffective

X. Do you feel working along the dispute resolution methods made your process any
easier?
a. Yes
b. No