Marital Counselling in India: Perspectives from Family Court Counsellors
10.1 The Implementation of the Family Courts Act, 1984
Family courts over the world fall into two main categories; courts from countries such as the United States of America, Australia and Hong Kong follow a model that focuses on legal matters that relate primarily to families and children. Pre-trial mediation programmes are not an integral part of the legal processes.
By contrast, in Japan and India family courts not only deal with family matters but are also cast as informal, comfortable spaces where litigants frame their own issues before judges or counsellors (paralegal mediators) and where conciliatory rather than adversarial practices are to be employed. (Basu 2012, p. 474)
The passing of the Family Courts Act can be seen as the outcome of the efforts of the women’s movement in India, wherein familial and marital disputes were withdrawn from the congested, intimidating and overbearing atmosphere of the Civil Courts, and discussed and settled in a more amicable, sympathetic and women-friendly environment (Family Court Mumbai 2015; Basu 2012). A major concern arising from the patriarchal cultural context in India was to ensure that women received a fair hearing in the judicial system, which tended to favour the interests of men. Yet another intention of the Central Government of India in the setting up of the family courts was to provide an inexpensive remedy for fam- ily disputes and problems. According to Basu, the delay in setting up the family courts in India was in part due to resistance from lawyers and advocate bodies (Basu 2012). The first state to set up a court under the Family Courts Act was Rajasthan in 1986, followed by states such as Tamil Nadu, Maharashtra, Kerala and Bihar (EKTA Resource Center for Women 2008).
According to the 1984 Family Courts Act, the family courts in India were set up “with a view to promote conciliation in, and secure speedy settlement of dis- putes related to marriage and family affairs” (Gazette of India 1984). The term
conciliation is a form of alternative dispute resolution, which is a contrast to the adversarial legal procedures commonly followed in the courtroom. However, most practitioners in the family court—lawyers, counsellors and judges consider con- ciliation to be more akin to reconciliation or efforts to patch up a marriage. The language of the Act speaks of preserving the institution of marriage, and promot- ing the welfare of children within the institution of the family.
According to clause 3 (1) (a) of the Family Courts Act, 1984, provisions have been made through which the state government, after consultation with the high court of the state, can establish a family court for every city or town in the state, whose population exceeds one million (10 lakhs) (Gazette of India 1984). The jurisdiction of the area served by the family court would be determined and speci- fied by the state or union territory. Apart from such million-plus agglomerations, state governments have the freedom to establish family courts in parts of the state, if there is a need felt. Expansion in terms of an increase in the number of fam- ily courts, according to this provision, is important. Data from the Department of Justice in the Ministry of Law and Justice show that there are 410 func- tional family courts in India, as of 31 October 2014. Among the states of India, Uttar Pradesh reportedly has 75 functional family courts, followed by Bihar with 33 Courts, Madhya Pradesh, with 31 courts, and Rajasthan and Kerala with 28 courts (Department of Justice 2014).
The Family Courts Act allows for the family courts in each state to formulate and institutionalize their sets of procedures and rules. Apart from prescribing the requirements for the appointment of judges in the family courts, the Department of Justice, under the Ministry of Law and Justice has little or no role to play in the administration of the Act. This has led to significant differences between states on the effective implementation of the Act. The Family Courts Act attempts to loosen the shackles of the conventional legal system by bypassing the lawyers and advocates; the Act stipulates that litigants are not entitled to have a lawyer present, unless specifically allowed to do so by the court. In practice, however, this require- ment is rarely adhered to (National Commission for Women 2002).
10.1.1 Marriage Counsellors in the Family Court
The post of Marriage Counsellor was created, enacted, legalized and introduced by the Family Courts Act, 1984, in India and provisions were made to conduct inde- pendent proceedings of therapeutic counselling before the marriage counsellor to attempt to settle matters between families and couples amicably before initiating trial in the court (Gazette of India 1984). The intention was to dispense with the lawyers and advocates in the process of litigating family disputes. The presence of lawyers was perceived to increase the time taken for the litigation, along with increasing the cost for the litigants. Additionally, it was felt that for family dis- putes, a venue separate from that of the civil courts was preferable, as family mat- ters required a separate expertise and experience. After the establishment of the
family courts at Mumbai in 1989, all matrimonial disputes from city civil courts were transferred to the family court and counsellors in the city civil courts were appointed as marriage counsellors in the family court at Bandra, Mumbai.
The marriage counsellor is the mandatory first point of contact for all parties entering the family court. Under the counsellor’s jurisdiction, each party is given the opportunity to voice their concerns wholly. During the course of the coun- selling sessions, the counsellor identifies the detrimental emotional, social and physical effects caused due to strains in personal affairs. The marriage counsel- lor, over three to five sessions attempts to assist towards a reconciliation of the parties involved, without the presence of any advocates. If reconciliation fails, the marriage counsellor works towards an amicable settlement of the issue, with mutual consent (EKTA Resource Center for Women 2008; National Commission for Women 2002). The marriage counsellor begins the interaction with the client through an intake sheet. This intake sheet contains the demographic background of the parties involved, and also elucidates basic reasons for approaching the legal system. Further, the counsellor documents the subsequent interactions with the parties involved, thus providing a rich source of processes and conclusions to all cases. While the Family Courts Act, 1984, recommends that suitable trained and qualified marriage counsellors be appointed to provide the necessary therapeutic inputs, in practice, most states have not done so. Even in states where there are counsellors in places, procedures and rules have not been laid down (Basu 2012;
EKTA Resource Center for Women 2008).
The National Convention of Family Court Counsellors
The Family Court, Mumbai, celebrated its silver jubilee in October 2014. In 1989, five family courts were initially set up in Mumbai, and by 1995, there were seven courts in operation. In 2014, there were seven courts functioning in Mumbai in the Bandra-Kurla Complex, and one court in the adjacent Thane district. On the occa- sion of 25 years of the establishment of the Family Court, Mumbai, the Department of Marriage Counselling, Family Court, Mumbai, and the Centre for Human Ecology, Tata Institute of Social Sciences (TISS), Mumbai organized a national con- vention titled ‘Counselling couples in India: Perspectives from family court coun- sellors’, during 11–12 October 2014. TISS played a crucial role in the setting up of the Department of Marriage and Counselling in the Family Court in Mumbai, first as an experimental project, and then as a permanent establishment (Agnes 2001).
The national convention provided an opportunity to bring together counsellors, activists, judges and other individuals who play the role of mediation in the family courts in India. The event allowed for a collective discussion relating to the imple- mentation and setting up of family courts in various states, the nature of issues placed before the courts, techniques and practices of the counsellors, challenges arising for counsellors in practice, and suggestions for ensuring synergy and conti- nuity in family court practice. The scope of further growth and development of the counsellors was debated.
The participants for the discussions were 98 individuals, from fourteen states and one union territory in India,1 who played the role of marriage counsellor, in their state family courts. While most of the participants were designated marriage counsellors, two states that did not have the post of marriage counsellors, had fam- ily court judges who participated in the proceedings.