RECOMMENDATIONS AT A GLANCE

Infrastructural Support

i. Budget Allocations

The budget allocation to the Family Courts needs to be radically increased

ii. Location

The Family Court should be situated in a separate premise with sufficient space to develop other non-judicial support systems.. in the event that this is not feasible, an area within the district court should be marked off as a Family Court Complex and the entrance to this area should be easily accessible.

Appointments, supervision and Training of Family court Judges

i.  Appointment and Tenure

An innovative approach needs to be adopted while appointing Family Court judges. Along with district judges, attempts should be made to evolve a special category of judges as direct recruits. The High Court needs to evolve adequate monitoring mechanisms for Family Court judges.

ii. The West Bengal Women Commission along with the WB National University of Juridical Sciences need to jointly evolve a module for gender sensitization of the Family Court/ District Court judges on a regular basis. Involved as resource persons for such training.

Legal Representation Family Courts

In simple cases of maintenance under S. 125 Cr. PC, in petitions for divorce by mutual consent, interlocutory applications and recovery proceedings, permission for appearances by lawyers should not be granted. For legal representation in complicated matters, the Family Court judge must set up a panel of layers as amicus curiae. The State Legal Service Authority, in consultation with the West Bengal Women Commission should be involved in the process of setting up this panel. There should be a periodic evaluation of the panel.

Counsellors in Family Courts

i. Appointment and Supervision

The counseling should be made an integral part of the Family Court. Appointment of counselors should be done by the High Court, in consultation with a social work college/State Women Commission. The qualifications prescribed by the Calcutta High Court rules should be adhered to. A new scheme should be introduced for remuneration of counselors by the State Government and this should from part of the family Court budget. Adequate infrastructural support should be provided to the counselors. A manual should be prepared and guidelines need to be provided to the counselors. The principal Judge should be assigned the task of monitoring the functioning of counselors. Their performance should be reviewed bi-annually.

ii. Conciliatory Proceedings

In cases where there has been repeated history of physical violence, or where the husband has committed bigamy or adultery, women should not be compelled to attempt reconciliation. No settlement should be worked out which would deprive women of their rights to maintenance, custody, property, residence in matrimonial home.

Court Staff and Maintenance of Records

The vacancies in Family Courts should be filled up immediately. The staff should be oriented to help litigants, more particularly illiterate women who approach the court. A new format for court registers should be evolved providing for information regaerding the disposal of cases and reliefs granted.

Support Mechanisms for Alternate Dispute Resolution

i.  Simplified Procedures and Help Desks

Standard proforma should be evolved for simplifying the drafting procedures. Help Desks should be set up at to assist the litigants in filling up the forms. Display boards should be put up to provide information regarding the procedures to be followed in the Family Court.

ii. In Camera Procedings

Proceedings should be routinely held in camera.

iii.  Difficulties in Proceedings under Chapter IX of Cr. PC

The family courts should develop their own procedure for service of summons under Chapter IX of Cr. PC. The jurisdiction under the Muslim Women Act should be exercised by the Family Courts to alleviate the hardships caused to divorced Muslim women. Women should be allowed to file proceedings for arrears of maintenance beyond the stipulated period of 1 years, in the interest of justice.

Periodic Monitoring of Family Courts

A monitoring committee should be set up to over see the functioning of Family courts in the State.

Best Practices

Exemption of Court Fees for Women Litigants.

Access room for supervised access.

Non judicial support srrvices.

Simplified procedures for withdrawal of maintenance amounts deposited in Family Courts.

RESEARCH CONCERNS

1.  Infrastructural Support

The number of family courts which have been set up in each State/district, their location budgetary allocations and infrastructural facilities provided to them are important indicators while assessing a State government commitment towards this innovative institution.

i. Budget Allocations

The budget allocation to the Family Courts needs to be radically increased

The budgetary allocation for Family Courts in West Bengal is meager as compared to other states. While the State of Maharashtra has a very high budget, the budget for West Bengal is even lower than the two other States, which have been analysed for the purpose of this study, i.e. Karnataka and Andhra Pradesh. Unless this is posed as a preliminary concern and is rectified, the condition of family courts in the state cannot improve.

Statewise Budget Allocation 2002-03

ii. Location

The Family Court should be situated in a separate premise with sufficient space to develop other non-judicial support systems. In the event that this is not feasible, an area within the district court should be marked off as a Family Court Complex and the entrance to this area should be easily accessible.

Prior to the setting up of the Family Courts, matrimonial litigation was situated in the district court. Maintenance under S. 125Cr. PC was situated in the Magistrate courts. The Family Courts Act consolidated these two types of litigation into one judicial institution and stipulated that the person appointed should be of a senior category with a least seven years experience as a district and sessions judge or a person with a very sound knowledge of law.

But rather than elevating the position of the Family Court to the level of district court, the Family Court itself has been assigned a lower position within the court hierarchy by situating it within the magistrate court complex and that too at its rear end in a dilapidated portion. The litigants would have to cross the crowd at the Bankshall court premises where 17 magistrate courts are situated and access the family courts through the stairway at the rear end. This defeats the purpose for which Family Courts have been set up i.e. to shift the litigation for a away from the regular criminal and civil courts.

Family Courts in Mumbai

In Mumbai, the Family Courts  are located in a multi-story government building in the midtown area i.e. the Bandra Kurla complex a little distance away from the magistrate courts as well as the suburban small causes court. The central location of the courts makes them accessible for residents of South Mumbai as well as the Central and Western suburbs. Each of the seven courts are situated on a separate floor which has spacious court halls and large waiting rooms. Two marriage counselors are attached to each court,and each of them have been provided with a room each, within close proximity of court halls. The court premises also have a children complex for supervised access, a child guidance clinic and a stress management centre.

2.  Appointments, Supervision and Training of Family Court Judges

i) Appointment and Tenure

The success of the Family Courts, to a large extent, depends upon the dynamism of the presiding officer and his/her concern towards ensuring gender justic. The process of appointing Family Court judges, their background, tenure and training  crucial issues in this respect. Most appointments to Family Courts are are through transfer of district and sessions judges. How do the judges cope with these changes from the system they are used to, in regular civil and criminal court? Well set in adversarial pattern of dispute resolution, how do they adapt to the needs of emotionally laden arena of family disputes, delicately posised custody battles and crucial rights of women in hitherto unmapped terrains like the right of residence in the matrimonial home or an injuction against domestic violence?

A Special Cadre of Family Court judges

The Family Courts Act provides a wide scope for appointment of experts from other related disciplines as Family Court judges. The State of Maharashtra has evolved a special cadre of family court judges who are appointed through direct recruitments. One significant development in this area has been the elevation of two marriage counselors who were attached to the Family Court at Mumbai (who had a law degree along with a post-graduate degree in social work) as Family Court judges.

The problem in West Bengal gets more acute as the family courts are viewed as quasi judicial for a and judges nearing retirement age are usually appointed as family court judges. This is because, while the retirement age for district judges is 60 years, the retirement age for a family court judge is 62 years.

When district judges are appointed as family court judges they are deemed to be on deputation to the State government. But when they reach the retirement age of 60 years, the High Court does not exercise its supervisory powers over them. There is a presumption that the State Government will assume this role. But at the other level, the State Government also does not exercise supervisory powers oveer the Family Court judges. This has created a vacuum. And lack of supervision and accountability.

When probed as to why judges reaching retirement age are appointed, it was revealed that the postings are viewed as a humanitarian service to the district level judges who are at the end of their career. The advantage to judicial officers gets prioritized rather than a commitment to the objectives stipulated under the Family Court. Act.

4. (5) No person shall be appointed as, or hold the office of a judge of a Family Court after he has attained the age of sixty-two years.

It is not my premise here that judicial officers nearing the end of their career are not capable of functioning as efficient Family Court judges. The provision of setting up an age bar has been criticized by some legal experts. If a retired Supreme Court or High Court judge (who retires at the age of 65) can hold office as a member/chairperson of National and State Human Rights Commissions as well as other enquiry commissions and tribunal, they see no reason why the Parliament should set an age limit for Family Court judges.

But it is important to have built in accountability and supervisory controls. It is more likely that district judges nearing retirement or those who are on superannuation would find it difficult to unlearn the technicalities adopted by regular civil and criminal court. It would facilitate the family court project, if gender sensitive judges in their mid-career are appointed as family court judges.

The issue of tenure did not emerge as a problem during the study. But it is bound to surface when more Family Courts are set up in the State. Frequent transfers and short tenures are counter productive. By the time a judge settles down and learns the process of being a family court judge, he/she is transferred. A tenure of at least three years would give sufficient scope for a judge to introduce newer schemes and experiment with dynamic processes for improving thje functioning of a particular Family Court. 

ii. Training

The West Bengal Women Commission along with the WB National University of Juridical Sciences need to jointly evolve a module for gender sensitization of the Family Court/District Court judges on a regular basis. The training should be conducted with the concurrence of the High Court and senior judiciary should be involved as resource persons for such training. 

The Family Courts Act does not stipulate any training for judges before their posting as Family Court judges. The judges have to learn on the job the special requirements of a family court judge through a process of trial and error. But today, there is a greater awareness regarding the need for training and gender sensitization Courses are conducted periodically by the National Judicial Academy as well as state judicial academies. Some NGOs have also developed modules for gender sensitization of the judiciary. But unfortunately, there has not been any mechanism evolved at the State level, for training and sensitization of judges adjudicating over family disputes.

Excerpts from the Recommedations by the Parliamentary Committee

Judiciary ought to be sensitized about women problems. Judges of the Family Courts should be given suitable training from time to time to enable them to understand complicated family disputes and to help them in rendering justice to the wife who is generally the weaker party in the dispute.

3. Legal Representation in Family Courts

In simple cases of maintenance under S. 125 Cr. PC, in petitions for divorce by mutual consent, interlocutory applications and recovery proceedings, permission for appearances by lawyers should not be granted. For legal representation in complicated matters, the Family Court judge must set up a panel of lawyers as amicus curiae. The State Legal Service Authority, in consulation with the West Begal Women Commission should be involved in the process of setting up this panel. There should be a periodic evaluation of the panel members.

Section 13 of the Family Courts Act reflects the legislative concern regarding the exploitative role lawyers play in the arena of litigation. Legal experts, legislators and women;s right activists pin the blame for the failure of the justice delivery system upon the legal profession. Exorbitant litigation costs, corrupt court practices, manipulative and subversive tactics, prolonged and acrimonious legal battles, refusal to ˜compromise or settle all these malaise are attributed to the presence of lawyers in court rooms. This section was meant to bring in certain regulatory measures to curb this disturbing trend within the legal profession.

Notwithstanding anything contained in any law, no party to a suit or proceeding before a family Court shall be entitled, as of right, to be represented by a legal practitioner.

Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of legal expert as amicus curiae.

But the legislative intent was rather short sighted and did not address the ground reality of the highly contested litigation terrain. In the absence of lawyers, who will help the litigants through the complex maze of court procedures? Were the conciliators/counselors meant to replace lawyers within the court rooms? If so, would they have the necessary skills and expertise to carry out this task? What was meant by seeking assistance of legal expert as amicus curiae? is assisting the court synonymous with representing the contesting parties during litigation? Or at another level, is amicus curiae synonymous with legal aid to the poor and the needy? There seems to be a great deal of ambiguity regarding the scope of this section even among the judiciary.

While there is no denying the exploitation by lawyers, it is the illiterate, the marginalized and the powerless who need support and guidance during litigation how would this segment be abel to access the courts without the aid of lawyers? Who will evolve effective strategies to ensure gender justice?

The relationship of a husband and wife, at best of times, is not one of equality. Hence, to expect the woman to put forward her case, amounts almost to cruelty. Who will strategize for the woman when her rights are violated? Often barely literate, does she know what evidence she should produce? S.14 of the Family Courts Act entitles the court to receive in evidence any report, documents, etc., which will help the court to decide the issue. How does a woman who is not in a position of equality either because of her lack of exposure, or economic or emotional dependency upon her husband, even know what is relevant and what she should mention to the judge? Will she be able to reply in a coherent manner to cross-examination? Surely the woman, if not both parties, needs their help of lawyers. It is one thing to say that the party cannot, as of right, be represented by a lawyer. But should they not have the assistance of some person?

Dr. Lotika Sarkar, Law Professor

At another level, this section has been resented by lawyers, who feel that thisd provision is in conflict with S.6 of the Advocate Act, which bestows upon them the right to enter any court. Curtailment of this right is viewed as an attack on the legal profession. Lawyers seem to reject the concept of a special court for family matters with diminished role for themselves. Opposition from Lawyers Associations is stated as the major hinderance against setting up of family courts in the country.

The Principal Judge, Shri Aroop Kumar Das routinely permitted representation by lawyers after he took charge in 2002. today a peculiar situation prevails where one court permits unrestricted entry of lawyers while the second court presided over by Judge Shrimati Chitra Biswas, strictly prohibits lawyers. Regarding the shift in the established practice, the Principal Judge commented :  feel it is better that lawyers are permitted to represent the parties honestly rather than lawyers appearing insidiously as friends or relatives of the litigantys. The litigants prefer to be represented by lawyers than seek the help of conciliators. At the other level, lawyers seem to be unhappy regarding the procedure followed by Judge Shrimati Chitra Biswas and have complained against her. When interviewed, she maintained that she strictly follows the procedure stipulated under the Family Courts Act. The court seems to adopt an either/or practice between consellors and lawyers.

Most family courts started off with restricting the entry of lawyers but have gradually settled down to a familiar pattern of permitting representation by lawyers . But most family court judges who were interviewed from other State expressed the view that the lawyers lobby is strong and influential and that they do not have the power to resist it. Though there is a statutory requirement of seeking permission of the court, many judges feel that this is a mere formality. They feel that they there is no point in refusing permission, because if they do, the concerned party will apro9ach the High Court for permission. Hence refusal to grant permission causes further delays and increases litigation costs. 

Unfortunately while the Act stipulated the special qualifications for a judge to preside over the Family Court it did not prescribe the special qualifications to be a lawyer at Family Court proceedings. Can a lawyer who neither has the skill of conciliation or the capacity to work with other professionals or one who is personally opposed to equal rights for women be eligible to be associated with a Family Court? Instead of seeking to prescribe special qualifications for Family Court advocate like the Family Court judge, the Parliament adopted the easy way out by prohibition of lawyers appearing as a matter of right. The consequence was initially opposision to the setting up of the Family court itself in some States and afterwards compelling the judge to allow appearance routinely like any other court.

Prof. (Dr.) N.R. Madhava Menon, Director, National Judicial Academy, Bhopal.

4. Counsellors in Family Courts

i. Appointment and Supervision

The counseling should be made an integral part of the Family Court. Appointment of counselors should be done by the High Court , in consultation with a social work college/State Women Commission. The qualifications prescribed by the Calcutta High Court rules should be adhered to. A new scheme should be introduced for remuneration of counselors by the State Govertment and this should from part of the family Court budget. Adequate infrastructral support should be provided to the counselors. The Principal judge shoulod be assigned the task of monitoring the functioning of counselors and their performance should be reviewed bi-annualy by the High court.

As per the provisions of the Act. the State governments, in consultation with the High Court were to provide counselors to assist the judges in the discharge of their functioning. In most States, counseling has remained external to the judicial fora and the mandatory provision of sounselling is followed in a cursoty manner. There is wide disparity in the procedures adopted ror appointment of counselors, their remueration,. The role and position awarded to them with the Family courts and the counseling techniques adopted by individual counselors.

Sections 23-27 of the rules framed by the Calcutta High Court in 1990 deal with the counseling process. (See Appendix C) S. 26 which deals with the Appointment to Counsellors stipulates that counselors will be appointed by the High court in consultation with one or more professionally qualified experts in family and child wefare, preferably working with a recognized institution of social science or social work. S-27 prescribes the qualification a Master degree in social work with minimum experience of two years in family counseling. But rather strangely, though there are only two family courts in the entire state, 35 counsellors were appointed in 1995. There work has never been evaluated and their names continue on the list of conciliators despite the fact that many of them have full time employment elsewhere. While the study was in progress, the number of regulars has dwindled to a mere six but even the irregular ones could stroll in as and when they wished. None of the counselors who were interviewed had the required qualification. What is surprising is that sonciliators appointed for the family counseling centers under other schemes have the required qualification of a post graduate degree in social work, while the counselors in family court do not.

THE CALCUTTA HIGH COURT FAMILY COURTS RULES,1990

S-26 Appointment to Counsellors  Counsellors attached to the counseling centyer will be appointed by the High Court in consultation with one or more professionally qualified experts in family and child welfare, preferably working wioth a recognized institution of social science or social work.

S-27 Qualification  Persons having Master degree in social work with minimum experience of 2 years in family counseling will be eligible for appointment as counselor.

Neither the Family Court, nor the High Court nor the Government have any mechanisms for monitoring the functioning of the marriage counselors. According to the Principal judge, Family court, the only way in which he has dealt with the comp0laits received regarding the functioning of the marriage counselors is to permit representation by lawyers. So the current position is that if legal representation is permitted, the parties need not go through a counseling process.

There is a wide disparity in the remunation paid to counselors . In Maharastra they are appointed on a permanent basis as Class I officers. This is reflective of the high status awarded to conciliatory proceedings within the State of Maharastra . In Karnataka, the remuneration which used to be Rs. 60/- per day has been enhanced to Rs. 200/- per day and most function on a part time basis on selective days and/or selective hours.

In West Bengal the procedures followed for remuneration of counselors differs fdrom the adove two patterns. It is based on the number of cases they handle. Per each session they are paid Rs. 50/- with maximum of five sessions which amounts to Rs. 250/- per case. So whether it is warranted or not, the counselors routinely have five sessions, which includes two home visits. These amount as well some amount for expenses have to be claimed from the Stater Government and this is done on an annual basis. According to the counselors at times the travel expenses are borne by the litigants. The NGOs complain that counsellora side with the husband as he is in a better fiancial position to win over the counselors.

The counselors state that their remuneration and rembnursement per year is around Rs. 6000/- to Rs. 12,000/- per year, depending upon the number of cases they handle. The Pattern of annual reimbursement causes a great deal of hardship to the counselors. They have made a number of complaints to the State Government in this respect but no one has looked into their grievances.

According to the Principal judge there have been a number of complaints against the counselors and litigants prefer the services of lawyers that counselors. Since he does not have regularoty powers over the counselors, he found representation by lawyers a better option.

But the second court presided over by judge Shrimati Chitra Biswas does not permit representation of lawyers and relies upon the services of counselors. She finds it very useful particularly while investigation the disputed facts regarding income etc.

The institution of counseling in the Family court at Kolkata lacks status and dignity. The High court and the state administration has not paid due attention to this novel scheme stipulated by the Family Courts Act. The scheme has been introduced in a cursoty manner. There is no manual to guide them in their work, no formats have been evolved to standardize their work, they have been provided with stationery, files, registers or cupboards. They lack basis minimum facilities. When probed as to how they maintain records, some counselors brought out their worn out personal pocket/ desk dairies and stated that they note down the case numbers and some details about the case in these diaries. The manner in which this institution is allowed to function has led to a lot of frustration for both the counselors as well as the litigants.