Comissió d’Investigació

The very purpose of the Family Courts Act is to promote conciliation and where there is no scope for conciliation efforts should be made to secure speedy settlement of disputes relating to marriage and family affairs and the connected matters. A duty is cast on the Family Court to make efforts for settlement in every proceeding or suit before the court, by persuading the parties to arrive at the settlement in disputes related to breakdown of marriages, restitution of conjugal rights, claim for maintenance, and claim for custody of children etc. Counselors are specially being nominated to perform the important task of conciliation and to arrive at settlement between the parties of the disputes. Thus, the counselors are the key players in accomplishing the very objective and purpose of the Act.

The term ‘conciliation and settlement’ should be understood in the right sense. Conciliation is an alternative method of dispute resolution and an attempt at preserving the institution of marriage. Under Family Court Act, the counsellors are expected to carry out the conciliation process. The counsellors, guided by the principle of objectivity, fairness and justice should assist the parties in an independent and impartial manner to arrive at an amicable settlement, considering the rights and obligations of the parties. The counsellors are supposed to make proposals for a settlement of a dispute, based on the preferences made by the parties. They offer a range of choices for resolving the dispute; ‘formulate’ or ‘reformulate’ the terms of a possible settlement; considering the factual and legal aspects of the dispute as well as what the counsellor considers could be an appropriate resolution to the dispute. The range of dispute resolution process could be options to live together, matters such as maintenance , lump sum settlement, sharing of property, custody of the children, returning of jewels, articles, clothes, visitation of children, divorce on mutual consent,

To effectuate the conciliation, the Family Court Act has provisions and accordingly every Family Court shall maintain a list of persons and agencies engaged in the field of social welfare. The persons and agencies should be professionally engaged in promoting the welfare of the family and working in the field of social welfare. The Act also permits that the assistance of medical experts and welfare experts in every proceeding, to discharge its functions.

Family Courts (Tamilnadu) Rules, 1987 says that ‘The Family Court shall prepare a list of not less than ten persons (including institutions or organizations) from among those engaged in the field of social welfare or representative thereof, professionally engaged in promoting the welfare of the family, working in the field of social welfare. The Family Court shall nominate two persons who may include representatives of institutions or organizations out of the list prepared as counsellors. The term of office of the Counsellors so nominated shall be three months. If for any reason, a Counsellor so nominated is unable to attend the Family Court, the Family Court may nominate another Counsellor from out of the list prepared. Every Counsellor shall be entitled to a sitting fee of Rs.300/- per day in Chennai and Rs.200/- per day in other cities and will be paid upto a maximum of Rs.4000/- per month. Initially, this sitting fee was Rs.30/- per day’.

As per G.O.Ms.No.500, dated 11th_{April 2007, two Marriage Counsellors are appointed for each}

Family Court, at a consolidated pay of Rs.5000/- per month as honorarium. The Marriage Counsellors should possess a degree in Social Work or Psychology. They are appointed on temporary basis for one year. Rs.7.2 lakhs was earmarked for this proposal.

Though it is not being spelt out explicitly in the preamble that the very objective of the Act is to promote conciliation with an intent to protect and preserve the institution of marriage, this is being spelt out under Sec 4 of the Family Courts Act, which says that the judges appointed should be committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and to that effect, the judges should promote the settlement of disputes by conciliation and counseling. Thus, in turn, the counsellors appointed under the Act are instructed to do the conciliation, keeping this objective in focus.

The normal procedure being followed in the Family Court is that after a petition is being filed by a petitioner, the same is presented before the Sheristedar of the Family Court who goes through it and if any more information is required to be mentioned, he informs the petitioner accordingly

and after the filing procedures are complied with, the petition is taken on file and assigned a number. After the Petition is numbered, the summon is served on to the respondent either through the court bailiff or through registered post acknowledgement due along with the copy of the petition with a specified date for hearing. On that date the petition is called in court and if both parties are present the date for counseling is fixed in consultation with the parties. The parties are supposed to meet with the counsellor on the date so fixed.

The Family Courts (Tamilnadu) Rules, 1987 does not mention anything about the duties, functions and powers of the counsellors. However, the Andhra Pradesh Family Courts (Court) Rules, Family Courts (Kerala) Rules, Family Courts (Maharashtra) Rules, Family Courts (Goa) Rules, Family Courts (West Bengal) Rules and Family Courts (Madhya Pradesh) Rules,stated elaborately the duties, functions and powers of the counsellors. The main duties include a.)right to supervise custody of children b)right to supervise the reconciled couples c)to do pre-litigation counseling d)to undertake home visits e)to seek information from the employer of any of the parties, if need arises and f)Referral to an expert etc.