The Family Courts (Amendment) Bill, 2022

The Family Courts (Amendment) Bill, 2022 is a legislation that pertains only to the states of Himachal Pradesh and Nagaland in India. It amends the Family Courts Act, 1984, and extends the application of the Act to these states. The purpose of the Family Courts Act, 1984 is to allow state governments to establish family courts in order to promote conciliation and resolve disputes related to family affairs and marriage promptly. The Act gives the state governments the authority to set up and oversee the functioning of family courts, in consultation with their respective high courts. It also lays down provisions for the appointment of judges in family courts.

Why was the amendment necessary?

Two family courts were established in Nagaland on September 12, 2008, and three in Himachal Pradesh on February 15, 2019, through notifications issued by the respective state governments. However, these courts were functioning without any legal authority as no central notification was issued to bring the provisions of the Act into force in these states, as required under Section 1(3) of the Family Courts Act. The issue came to light after a petition was filed in the Himachal Pradesh High Court (Omkar Sharma vs. State of Himachal Pradesh), which contended that the family courts in the state were functioning without jurisdiction as the Central Government had not issued any notification. The petition also stated that this would render void any action taken by these courts.

In response to the petition, the Himachal Pradesh High Court expressed serious concern and directed the Assistant Solicitor General of India to seek instructions from the Central Government. The Central Government was subsequently impleaded as a party in the matter. Since there was no provision in the Act for the Central Government to notify the establishment of family courts, the Union Law Ministry brought The Family Courts (Amendment) Bill, 2022 to address this lacuna. The amendment was introduced with the aim of addressing the legalities and “validating” and “saving” all actions taken by the state governments and family courts, including the appointment of judicial officers and court staff.

Key provisions of the amendment

The Family Courts (Amendment) Bill, 2022 will amend the Family Courts Act by inserting a proviso to Section 1. The proposed new Section 3A extends the application of the Act to Himachal Pradesh and Nagaland, with effect from the dates the family courts were set up. This means that the Act will be deemed to have come into force in Himachal Pradesh on February 15, 2019 and in Nagaland on September 12, 2008.

Under Section 3A, all actions taken, appointments made, and notifications issued under the Act in Himachal Pradesh and Nagaland before the commencement of the Family Courts (Amendment) Act, 2022 will be deemed valid. This includes orders of appointment of a family court judge, and the posting, promotion, or transfer of such a judge under the Act. All powers exercised, functions performed, matters dealt with, and proceedings undertaken by the family courts in these states will also be deemed valid.

The amendment also states that any suit, appeal, or other proceedings pending before any court in Himachal Pradesh and Nagaland, which would have been within the jurisdiction of a family court if the Act had been in force, shall be transferred to the nearest family court.

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