The Family Courts Act and the Uniform Civil Code

1. Why Family Courts

The Law Commission's 59th Report (1974) and the Committee on the Status of Women urged a separate forum for family disputes, with a conciliatory rather than adversarial approach. The Family Courts Act, 1984 (Act 66 of 1984) was the result. Its long title states its object: to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs. The Act applies to all communities; it is procedural and does not change any personal law.

2. Constitution of Family Courts

• Section 3: the State Government, after consultation with the High Court, shall establish a Family Court for every area comprising a city or town whose population exceeds one million, and may establish them for other areas.
• Section 4: judges are appointed by the State Government with the concurrence of the High Court. A judge must have held a judicial office, or the office of a member of a tribunal or a post requiring special knowledge of law, for seven years, or been an advocate for seven years. In selection, every endeavour is to be made to choose persons committed to protecting and preserving the institution of marriage and promoting the welfare of children, qualified to promote settlement by conciliation and counselling, and preference is given to women. The retirement age is sixty-two.
• Section 5: the State may provide by rules for the association of social welfare institutions and persons engaged in family welfare.
• Section 6: the State appoints counsellors, officers and staff.

The Family Courts (Amendment) Act, 2022 was passed to give retrospective legal cover to the Family Courts already set up in Himachal Pradesh and Nagaland, whose notifications had been questioned.

3. Jurisdiction (sections 7 and 8)

Section 7(1) gives a Family Court the jurisdiction of a district court or subordinate civil court over the suits and proceedings listed in the Explanation:

• (a) nullity, restitution of conjugal rights, judicial separation or dissolution of marriage;
• (b) a declaration as to the validity of a marriage or the matrimonial status of a person;
• (c) disputes between the parties to a marriage about their property;
• (d) an order or injunction in circumstances arising out of a marital relationship;
• (e) a declaration as to the legitimacy of a person;
• (f) maintenance;
• (g) guardianship of the person, or custody of or access to a minor.

Section 7(2) adds the jurisdiction of a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, 1973 (maintenance of wives, children and parents), now Chapter X of the Bharatiya Nagarik Suraksha Sanhita, 2023 (sections 144 to 147), and any jurisdiction conferred by other enactments. Section 8: once a Family Court is set up, civil courts and magistrates lose jurisdiction over these matters in that area, and pending cases stand transferred.

4. Procedure, powers and functions

• Settlement first (section 9). In every suit or proceeding the court shall endeavour in the first instance to assist and persuade the parties to settle, and may adjourn for that purpose at any stage.
• Procedure (section 10). The Code of Civil Procedure applies (and the criminal code for maintenance proceedings), and the court is deemed a civil court; but the court may lay down its own procedure to arrive at a settlement or at the truth.
• In camera (section 11). Proceedings may be held in camera if the court wishes, and shall be if either party wishes.
• Experts (section 12). The court may secure a medical expert or a person (preferably a woman) engaged in family welfare to assist it.
• Lawyers (section 13). No party is entitled as of right to be represented by a legal practitioner, but the court may seek the assistance of a legal expert as amicus curiae. In practice courts usually permit representation.
• Evidence (section 14). The court may receive any report, statement, document or information that will help it, whether or not admissible under the Evidence Act. Oral evidence may be recorded as a memorandum of its substance (section 15), and formal evidence may be given on affidavit (section 16).
• Judgment and execution (sections 17 and 18). The judgment contains a concise statement of the case, the points, the decision and the reasons. Decrees are executed as civil decrees, maintenance orders under the criminal code.
• Appeal (section 19). An appeal lies to the High Court on facts and law from every judgment or order that is not interlocutory, within thirty days, heard by a Bench of two or more judges. No appeal lies from a consent decree or from a maintenance order; the High Court has revisional power over maintenance orders (section 19(4)).
• Section 20: the Act overrides inconsistent laws.

5. Article 44 and the Uniform Civil Code

Article 44, a Directive Principle, says: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Under Article 37 it is not enforceable by any court. Personal laws on marriage, divorce, succession and adoption still differ by religion. The case for a code rests on equality (Articles 14 and 15), gender justice and national integration; the case against it rests on the freedom of religion (Articles 25 and 26), the protection of minority cultures (Article 29), and the risk of imposing one community's law on others.

The Supreme Court's observations.

• Mohd. Ahmed Khan v. Shah Bano Begum, 1985 INSC 97, (1985) 2 SCC 556. Upholding a divorced Muslim wife's claim to maintenance under section 125 CrPC, Chandrachud C.J. regretted that Article 44 had remained a dead letter and said a common civil code would help national integration by removing disparate loyalties to laws with conflicting ideologies.
• Sarla Mudgal v. Union of India, 1995 INSC 363, (1995) 3 SCC 635. A Hindu husband who converts to Islam to marry again without dissolving his first marriage commits bigamy; the second marriage is void. Kuldip Singh J. asked the Government to take a fresh look at Article 44.
• John Vallamattom v. Union of India, 2003 INSC 322, (2003) 6 SCC 611. Striking down section 118 of the Indian Succession Act, Khare C.J. regretted that Article 44 had not been given effect and observed that a common civil code would help the cause of national integration.
• Shayara Bano v. Union of India, 2017 INSC 785, (2017) 9 SCC 1. A Constitution Bench, by majority, set aside instantaneous triple talaq (talaq-e-biddat). Parliament then enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. The case shows the alternative route: reform of a single practice by court and statute rather than a single code.

The Court has also said it cannot direct Parliament to legislate; Article 44 is addressed to the legislature.

6. The Law Commission's 2018 consultation paper

The 21st Law Commission, in its Consultation Paper on Reform of Family Law (31 August 2018), concluded that a uniform civil code was neither necessary nor desirable at that stage. It recommended instead that discriminatory provisions within each personal law be amended so as to secure equality, with suggestions such as codifying aspects of personal law, a uniform age of marriage, and treating the equal division of matrimonial property on divorce as a goal. The 22nd Law Commission invited fresh public views on a UCC in June 2023.

7. The Uttarakhand Uniform Civil Code, 2024

The Uttarakhand Legislative Assembly passed the Uniform Civil Code, Uttarakhand, 2024 in February 2024; it received the President's assent in March 2024 (needed because it overlaps Central laws on a Concurrent List subject, Article 254(2)) and was brought into force on 27 January 2025 after rules were notified. It applies to residents of Uttarakhand and to Uttarakhand residents living outside the State, but excludes members of the Scheduled Tribes. Its main features: a common law of marriage and divorce for all communities, with compulsory registration of marriages; a ban on polygamy; a single scheme of intestate succession with equal rights for sons and daughters; and compulsory registration of live-in relationships, with a declaration to the Registrar. Petitions challenging several provisions (especially the live-in registration regime, on privacy grounds) were pending before the Uttarakhand High Court at the time of writing.

How this is examined

Expect “Discuss the constitution, powers and functions of Family Courts” or a short note on the jurisdiction of Family Courts, and an essay on “the need for a Uniform Civil Code” citing Article 44, Shah Bano, Sarla Mudgal and John Vallamattom. Add the 2018 consultation paper and the Uttarakhand code to show the position as of 2026. A balanced conclusion that weighs equality against religious freedom earns more than a one-sided one.