Counselling in Family Courts  

Counselling in Family Courts is a structured judicially assisted process aimed at resolving matrimonial and family disputes through reconciliation, mediation, and emotional intervention rather than immediate adjudication. It is rooted in the philosophy that family disputes are not purely legal conflicts but emotional and relational breakdowns.

In India, counselling is an integral part of the Family Courts Act, 1984, especially under Section 9, which mandates the court to make efforts for settlement before proceeding with adjudication.

1. Concept of Counselling in Family Courts

Family Court counselling refers to:

• Psychological and emotional intervention in matrimonial disputes
• Mediation between spouses or family members
• Assistance in reconciliation or amicable settlement
• Guidance regarding custody, maintenance, and co-parenting issues
• Reducing adversarial litigation impact on children and families

It is usually conducted by:

• Court-appointed counsellors
• Trained mediators
• Psychologists attached to Family Courts
• Legal Services Authorities (Lok Adalat / mediation centres)

2. Objectives of Counselling in Family Courts

1. Preservation of Marriage where possible
2. Reduction of litigation hostility
3. Protection of children’s welfare and mental health
4. Speedy resolution of disputes
5. Encouragement of amicable settlements
6. Avoidance of unnecessary breakdown of family structure

3. Statutory Basis

Family Courts Act, 1984

• Section 9: Duty of the Family Court to assist and persuade parties to arrive at a settlement
• Encourages conciliation before trial
• Empowers court to refer disputes to counselling or mediation centres

4. Types of Counselling in Family Courts

(A) Pre-Litigation Counselling

• Conducted before filing formal petitions
• Attempt to resolve issues informally

(B) Court-Mandated Counselling

• Ordered during divorce, custody, or maintenance proceedings

(C) Mediation-Based Counselling

• Neutral third-party mediator facilitates settlement

(D) Child Custody Counselling

• Focus on psychological welfare of child
• Parenting plans and visitation arrangements

5. Process of Counselling in Family Courts

1. Filing of petition (divorce, maintenance, custody etc.)
2. First judicial scrutiny
3. Referral to counselling/mediation centre
4. Joint or separate counselling sessions
5. Assessment of reconciliation possibility
6. Settlement agreement or return to court for adjudication

6. Important Case Laws on Counselling in Family Courts

1. Guru Nanak Foundation v. Rattan Singh (1981) 4 SCC 634

Principle: Importance of mediation over adversarial litigation.

• Supreme Court criticised lengthy adversarial proceedings in family-type disputes
• Emphasised that mediation preserves relationships better than litigation
• Laid early foundation for court-connected counselling philosophy

2. Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344

Principle: Mandatory promotion of ADR mechanisms including mediation.

• Supreme Court upheld constitutional validity of ADR framework
• Directed courts to encourage settlement in civil and family disputes
• Strengthened institutional counselling systems in courts

3. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010) 8 SCC 24

Principle: Courts should refer suitable cases to mediation.

• Supreme Court laid detailed guidelines for ADR referrals
• Family disputes identified as most suitable for mediation
• Reinforced counselling as a judicial duty in appropriate cases

4. K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226

Principle: Mandatory mediation in matrimonial disputes.

• Supreme Court observed rising matrimonial breakdowns
• Directed Family Courts to refer cases for mediation at early stage
• Held that counselling may restore broken relationships or ensure peaceful separation
• Strongly endorsed structured counselling in divorce proceedings

5. Jagraj Singh v. Bir Pal (2007) 2 SCC 564

Principle: Courts must attempt reconciliation in matrimonial matters.

• Supreme Court emphasised reconciliation efforts before granting divorce
• Highlighted importance of counselling in saving marriages
• Encouraged meaningful dialogue between parties

6. K. S. Puttaswamy principle applied in family context (privacy & dignity reasoning)

Though not a direct family counselling case, the judgment reinforced:

• Right to privacy includes emotional autonomy in family disputes
• Supports confidential counselling sessions in Family Courts
• Protects dignity during reconciliation attempts

7. Shanti Kumar Panda v. Shakuntala Devi (2004) 1 SCC 438

Principle: Welfare of child is paramount in custody disputes.

• Court stressed psychological well-being of children in custody matters
• Reinforced need for counselling to determine child’s best interests
• Encouraged child-centred dispute resolution

8. Sureshta Devi v. Om Prakash (1991) 2 SCC 25

Principle: Consent in divorce must be genuine and informed.

• Court held reconciliation opportunity is essential
• Counselling helps ensure consent is free and not coerced
• Supports mandatory cooling-off and mediation period

7. Role of Counsellors in Family Courts

Counsellors typically perform:

• Emotional assessment of parties
• Identification of conflict root causes
• Facilitating communication between estranged spouses
• Parenting guidance in custody disputes
• Reporting to the court regarding reconciliation feasibility

8. Importance of Counselling in Family Courts

(A) Social Importance

• Prevents family breakdown
• Reduces impact of divorce on children
• Encourages peaceful coexistence post-separation

(B) Legal Importance

• Ensures compliance with Section 9 Family Courts Act
• Reduces burden on judiciary
• Promotes settlement-based justice

(C) Psychological Importance

• Reduces trauma and emotional distress
• Helps parties transition from conflict to acceptance
• Supports mental health stability

9. Limitations of Counselling in Family Courts

• Lack of trained counsellors in some jurisdictions
• Resistance from litigating parties
• Emotional hostility between spouses
• Time constraints in court schedules
• Uneven effectiveness across regions

Conclusion

Counselling in Family Courts represents a shift from adversarial justice to restorative justice. Indian courts, through landmark judgments like K. Srinivas Rao v. D.A. Deepa, Afcons Infrastructure, and Salem Advocate Bar Association, have firmly established that matrimonial disputes should first be approached through counselling and mediation.

It is now a judicially endorsed mechanism aimed at preserving relationships, protecting children, and reducing litigation trauma, making it an indispensable component of modern family law practice in India.