Get­ting a di­vorce is a tardy and ex­pen­sive process

Governance Now - - CONTENTS - Shivani Chaturvedi

As if the pain of di­vorce were not enough, the le­gal sys­tem adds to it: with tardy pro­ce­dures, short­age of fam­ily courts and hefty lawyer fees

It is 10.15 in the morn­ing, and 33-year-old surabhi is stand­ing in­side the court room on the ground­floor of the sub court, poona­mallee, a north­west­ern neigh­bour­hood of chen­nai. it’s is the fi­nal hear­ing of her di­vorce case. she is ea­gerly await­ing the judg­ment that would put an end to her three-year-long or­deal.

But it seems that destiny, or rather, the in­dian le­gal struc­ture, has some other plans. surabhi has to wait for another two weeks to re­ceive the fi­nal di­vorce de­cree. she can ap­proach her ad­vo­cate only af­ter the stip­u­lated time to get a copy of the fi­nal di­vorce pa­pers. Yet, surabhi must thank her stars as she has to wait for only 14 days: in some cases, the lit­i­gant may have to wait for a month. how­ever, the 14-day­wait doesn’t cheer surabhi at all. af­ter wait­ing for three long years, a de­lay of another 14 days seems like an eter­nity.

it all started in 2013 when her hus­band sud­denly walked out of their home. she called him re­peat­edly, but there was no an­swer. at times, when he picked up her call, he evaded the ques­tion of his re­turn. all alone in a new city where peo­ple speak a dif­fer­ent lan­guage, Surabhi felt ter­ri­fied. Then one fine morn­ing she re­ceived a le­gal no­tice which sent shivers down her spine. “i re­ceived a di­vorce no­tice. my hus­band had ini­ti­ated lit­i­ga­tion against me. i was shocked. For a mo­ment, i felt i lost every­thing,” she re­calls.

He had filed a di­vorce case in the poona­mallee court on false charges of cru­elty. “af­ter con­sult­ing my par­ents over the phone, as they stay in a dif­fer­ent city, and with the help of a friend in the neigh­bour­hood, i ap­proached a lawyer,” she says.

surabhi de­cided to chal­lenge the di­vorce pe­ti­tion and hired a lawyer by pay­ing more than ₹70,000 in fees. The lawyer as­sured her that her case was strong and she would win eas­ily.

But it turned out to be not so easy af­ter all.

as per the in­dian le­gal sys­tem, be­fore the lit­i­ga­tion pro­ce­dure be­gins a cou­ple has to at­tend coun­selling ses­sions me­di­ated through the court. The ses­sion is con­ducted with the help of a neu­tral party, which may in­clude re­tired judges.

adamant to move out of the wed­lock, surabhi’s hus­band par­tic­i­pated in just one ses­sion. surabhi, on the other hand, turned up every time the me­di­a­tion panel gave the dates – some­times at an in­ter­val of 20 days to one month and at times two months. There were days when surabhi was for­tu­nate enough to come out of the court premises by noon. on other days her ses­sion would be­gin only in the late af­ter­noon; there were many coun­selling ses­sions lined up be­fore hers. The whole pro­ce­dure for me­di­a­tion be­tween the cou­ple dragged on for more than a year.

But it didn’t help surabhi in any way. Then one day her lawyer told her to file a counter-af­fi­davit (a counter-re­ply by the re­spon­dent).

amidst this en­tire le­gal tus­sle, surabhi started re­ceiv­ing threat­en­ing calls from her hus­band to va­cate their house (as he was pay­ing the rent). “he said that he wants to move out of chen­nai and doesn’t want to carry the bag­gage of this re­la­tion­ship,” re­calls surabhi.

The lawyer as­sured her that she was still the le­gal wife and could not be asked to va­cate the mar­i­tal home. In fact, if she wanted, she could file another pe­ti­tion in the court or seek the help of the po­lice.

Mean­while, the date for fil­ing the counter-af­fi­davit was near­ing and surabhi had to make end­less trips to her lawyer’s of­fice. At times she would fol­low up with him over mul­ti­ple phone calls. it was only in mid-2015 that her counter-af­fi­davit was filed in the court.

The pro­ceed­ings were started.but the hear­ing had to be ad­journed on some days, as the pe­ti­tioner, surabhi’s hus­band, did not ap­pear be­fore the court. “it was be­com­ing emo­tion­ally, phys­i­cally and fi­nan­cially drain­ing,” says surabhi.

Frus­trated, act­ing on a friend’s ad­vice, surabhi de­cided to take the help of a de­tec­tive to know about her hus­band’s where­abouts. she thought this might strengthen her case. af­ter shelling out a few ex­tra bucks on the pri­vate in­ves­ti­ga­tor, it was re­vealed that her hus­band was cheat­ing on her.

“When i came to know this harsh re­al­ity, it took me some time to gather my­self. i was in a dilemma and hun­dreds of thoughts clouded my mind. i was ap­pre­hen­sive about the stigma as­so­ci­ated with a di­vorce. i was wor­ried for my par­ents. Finally, i de­cided to go for a mu­tual di­vorce as there was no point in fight­ing the case know­ing that he was cheat­ing me,” she says.

She could have filed a case of adul­tery against her hus­band, but the de­tec­tive’s re­port was not com­plete and there was no pho­to­graphic ev­i­dence to prove her point. although her lawyer sug­gested that the court would set up an in­ves­ti­ga­tion into the mat­ter if she filed an adul­tery case, she de­cided against it. another case would have meant go­ing through the same drag­ging rou­tine again and years of suf­fer­ing and trauma. so she de­cided to go for mu­tual sep­a­ra­tion.

Finally on oc­to­ber 18, 2016 af­ter spend­ing nearly a lakh ru­pees and un­der­go­ing emo­tional trauma her mis­ery ended. And Surabhi re­ceived the fi­nal de­cree of di­vorce.

“For every pe­ti­tion, there will be a counter-pe­ti­tion. It is not easy to come out of mul­ti­ple cases. A lawyer should not en­cour­age the client to file mul­ti­ple cases.” Ad­hi­lak­shmi Loga­murthy Se­nior ad­vo­cate and so­cial worker

surabhi’s story is just a brief pic­ture of the tri­als and tribu­la­tions a per­son goes through while opt­ing for a di­vorce in our coun­try. The hefty fees of lawyers, the long and tardy le­gal pro­ce­dure and in­ad­e­quate num­ber of fam­ily courts fur­ther add to the woes.

a fam­ily court deals with fam­ily dis­putes, whereas a sub court deals with all the cases in its ju­ris­dic­tion, be it crim­i­nal or civil. “so when a per­son’s res­i­dence doesn’t come un­der the ter­ri­to­rial ju­ris­dic­tion of a fam­ily court, he/she has to ap­proach the sub court for mat­ri­mo­nial dis­putes. There is a need to have fam­ily court in all the districts,” says RY Ge­orge Wil­liams, a fam­ily court ad­vo­cate.

There are only four fam­ily courts on the cam­pus of the madras high court. Around 5,000 cases are filed in a year in every court, re­veals a fam­ily court lawyer. and at present, over 17,000 cases are pend­ing in th­ese fam­ily courts, says Wil­liams.

in one of th­ese fam­ily courts, di­nesh had filed a pe­ti­tion seek­ing re­join­ing with his es­tranged wife. it has been 18 months since he filed his pe­ti­tion, but his case is still pend­ing. Dur­ing the first three months of his case, the judge was trans­ferred and there was much de­lay in ap­point­ing a new judge to the case.

This is a ma­jor rea­son for in­or­di­nate de­lays in di­vorce cases where ei­ther the judge is on leave for months, or is trans­ferred and the new judge does not take charge for a long time. also, de­lay in de­liv­ery of no­tice to the other party, due to in­cor­rect postal ad­dress or other rea­sons, hin­ders the pro­ceed­ings.

Sub­hasini, 36, has been fight­ing her di­vorce case in the poona­mallee sub court for seven years. her hus­band went away to some far-off place and filed for a di­vorce. They have a sixyear-old daugh­ter. as a re­spon­dent in the case, she im­me­di­ately filed a counter-af­fi­davit and ap­pealed in the court that her hus­band should re­turn. But she lost the case.

“The lawyer told me that money played a ma­jor role in her hus­band win­ning the case,” she says. Sub­hasini wanted to chal­lenge the ver­dict, but see­ing her lawyer’s ill-pre­pared­ness and lack of in­ter­est in the case, she de­cided to quit and ac­cept di­vorce as her fate.

“i felt that i should not waste my time and en­ergy any more. my ca­reer was get­ting af­fected. I was ex­hausted; phys­i­cally, men­tally and fi­nan­cially. i was pushed to a point where i felt i should come out of this re­la­tion­ship, which never even ex­isted in the first place,” says Sub­hasini.

The court will grant her the di­vorce de­cree in au­gust this year.

as per the Fam­ily courts act, 1984, if a per­son ap­proaches the court by fil­ing a pe­ti­tion for di­vorce or re­join­ing with the spouse, declar­ing mar­riage as null and void or with any such mat­ri­mo­nial dis­pute, the ap­pli­ca­tion should be dis­posed of within six months of the date a re­spon­dent re­ceives the no­tice. The act also states that me­di­a­tion be­tween the cou­ple should be con­ducted within an in­ter­val of 15 days and should be over in 45 days, ex­plains Wil­liams.

But as seen in the cases of surabhi, sub­hasini and di­nesh this was not true. Their cases dragged on for years. more­over, Wil­liams says that peo­ple file mul­ti­ple cases, which in­creases pen­dency. he men­tions one of his cases in the fam­ily court where the lit­i­ga­tion has been pend­ing since 2010.

says se­nior ad­vo­cate and so­cial worker Ad­hi­lak­shmi Loga­murthy, “mostly in di­vorce cases there will be a do­mes­tic vi­o­lence case pend­ing some­where, dowry harass­ment case, main­te­nance case, re­turn of ar­ti­cles, resti­tu­tion of con­ju­gal rights, etc. cases mul­ti­ply. For every pe­ti­tion, there will be a counter-pe­ti­tion. it is not easy to come out of mul­ti­ple cases. a lawyer should not en­cour­age the client to file mul­ti­ple cases.”

There­fore, she sug­gests that the par­ties should first ap­proach the coun­sel­lor or me­di­a­tor in­stead of knock­ing the doors of the court or po­lice. This will save their time, money and ef­fort.

a highly-placed source in chen­nai’s fam­ily court says that some­times lawyers don’t let the mat­ter to be re­solved be­tween the par­ties, as they want to mint money. “sup­pose, if the two par­ties set­tle for ₹25 lakh as the al­imony, the lawyer would say ₹50 lakh as they want to get their cut. This drags the case,” he says.

Fur­ther, he adds, in fam­ily courts judges them­selves look into the ser­vice mat­ter (serv­ing of no­tices). if the party does not turn up, then judges is­sue no­tice. so, a method should be es­tab­lished (by way of amend­ment) where ‘mas­ters’ are ap­pointed who look af­ter the is­su­ing of the sum­mons, just like it is done in high courts.

“The de­lay in re­ceiv­ing no­tice by the re­spon­dent is yet another rea­son for cases be­ing dragged. at times, it takes a year for the no­tice to get de­liv­ered for rea­sons like the party ma­nip­u­lat­ing the post­man,” re­veals the source.

a so­cial worker from chen­nai who spe­cialises in fam­ily and child wel­fare says, when the cases get dragged es­pe­cially those women who are eco­nom­i­cally weak, they even stop fol­low­ing up the case. “if a daily wage earner has to come and stand in the court for hours, she’d lose a day’s wage,” she says.

“Th­ese women are get­ting into a kind of mind­set where they say ‘we will live sep­a­rately from the spouse but not go through the pro­ce­dure of lit­i­ga­tion’. as it is, they feel court or­ders are not of any help to them since they won’t re­marry. They are liv­ing for their chil­dren and most of th­ese women have crossed the age of 35,” she adds.

shivani@gov­er­nan­cenow.com

“When a per­son’s res­i­dence doesn’t come un­der the ter­ri­to­rial ju­ris­dic­tion of a fam­ily court, he/she has to ap­proach the sub court for mat­ri­mo­nial dis­putes.” RY Ge­orge Wil­liams Fam­ily court ad­vo­cate

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