In a legal mess

Published Date: 5/11/2008 - (NIE)

(T S Sekaran, Nandini Chandrashekar, Harsha, Tushar A Manjukar, Ancy Johnson, V L Srinivasan, Bikram Nayak, S N Agragami and Scaria Meledam )

Prime Minister Manmohan Singh’s call for the setting up of family courts in every district of the country has evoked mixed reactions in Tamil Nadu with some housewives urging the government to focus on the more important issues such as the steep hike in prices, on the one hand, and lawyers, on the other, terming the call timely and welcome.

“You allow more TASMAC shops, which are the root cause of marital discord and then you suggest more family courts be set up,” says Lakshmi, a middle-aged mother of two from Mylapore who faces torment at the hands of her husband, a regular drinker.

“Improve the functioning of the existing courts,” urges Gomathi of Royapuram,who visits the court in the city to get the maintenance her divorced husband is to give her.

There are six family courts in Tamil Nadu — three in Chennai, and one each in Madurai, Coimbatore and Salem. The government has agreed to establish more such courts in the state. The three courts in Chennai have the necessary infrastructure. There are separate rooms for counselling estranged couples. Two psychiatrics regularly visit the courts. There is also a children’s centre to look after the little ones while parents are in court.

Advocate Arul Mozhi says that the subordinate courts in the districts are already over-burdened with criminal and civil cases and the judges don’t have the time, temperament, patience, or expertise to deal with matrimonial cases.

“There is a feeling that family courts are set up to separate couples. It is not so. On the contrary, the courts will strive to unite them. Divorce is decreed in only exceptional cases, that too after exhausting all procedures such as counselling, mediation and psychological assistance. In cases of alcoholism, the person is referred to a de-addiction centre,” says Geetha Ramseshan, another advocate who deals with matrimonial cases.

“There are so many problems within a family and among spouses. The younger generation nowadays is quite different. The problems being faced by the IT professionals are unique. Therefore, each town needs a family court,” says Ramseshan.

The need for external mechanisms to resolve family disputes is as much a reality in Karnataka as anywhere else. Unfortunately, there are only 15 family courts in the state and none in north Karnataka. This has forced people to head to the mediation centres ,which have been set up as an alternate forum for dispute resolution.

Of the 5,834 cases filed in the family courts in the state since January 2007, 4,356 were referred to the mediation centres, which have a 70 per cent success rate for divorces and custody disputes, and an overall success rate of 53 per cent. In contrast, in family courts, people are forced to wait an entire day, not knowing when they would have to appear before an adjudicator — most of the time for an adjournment. This also translates into more money for lawyers.

The director of the mediation center,K N Keshavanarayana, points to the positive nature of intervention at the centres. Besides, disputes referred to mediation centers have to be resolved in 60 days. Buoyed by the success of these centres, 10 more have been planned in the districts, where the picture is dismal with some not having any family court.

Several disputes await resolution in Belgaum but there is only one family court. The backlog is inevitable — about 1,500 cases are pending and 100-120 are scheduled per day.

In Shimoga, the number of cases is steadily on the rise but are being dealt with the at the civil courts and the delays have caused disappointment. Till 2006-07 about 2,000 matrimonial cases, including 938 maintenance cases,were to be resolved. One example is that of Santosh and his wife, who have been waiting for two-and-a-half years to divorce. “If there was a family court, our case would have been concluded much earlier,” says Santhosh. A family court has finally been sanctioned in Shimoga district and is expected to start functioning after the vacations.

Even Mangalore does not have a family court. This results in a lot of frustration for the litigants one of whom points out that the chief judicial magistrate’s court first hears motor vehicle cases and then takes up those pertaining to conjugal rights and maintenance issues, as petty criminals, police personnel and sneering lawyers look on.

“Lawyers do not believe in protecting the institution of marriage and always skip conciliatory steps to directly file for divorce,” asserts the journalist. This eagerness to file cases, compounded by the dearth of family courts, only adds to the backlog.

The record has been dismal. More than two decades after a central legislation was enacted for the creation of family courts, Andhra Pradesh has just four — one each in Hyderabad, Secunderabad, Visakhapatnam and Khammam. Between 2006 and now, orders were issued for the setting up of 18 more courts, but these are yet to come into being for a variety of reasons, including lack of infrastructure.

As a result, cases are still heard by regular courts in most cases and thus drag on for five or more years. Even in the family courts, cases drag on for more than two years as the presiding officers are overburdened — in Hyderabad, more than 1,000 cases are filed every year. Unable to handle the pressure, presiding officers have been outsourcing the cross-examination by appointing advocate commissioners, so that the judges themselves can devote time to reconciliation, which constitutes the core activity of a family court. To save time, arguments are also permitted only in writing.

The government order of March 28, 2006, sanctioned nine family courts — one each in Guntur, Karimnagar, Visakhapatnam, Eluru (West Godavari district), Anantapur, Rangareddy, Khammam, Kadapa and Vizianagaram. On January 17, 2008, it ordered the creation of courts in Hyderabad, Nellore, Prakasam, Adilabad, Srikakulam, Mahboobnagar, Nalgonda, Sangareddy (Medak district) and Rajahmundry (East Godavari district).

A senior official of the Andhra Pradesh High Court admits that the delay in setting up these courts has been causing inconvenience to litigants, but says, “The process is almost over and judges would be posted in all family courts by end of this month.”

Says advocate Vasudha Nagaraj, who was part of a team led by senior matrimonial lawyer Flavia Agnes that studied the functioning of family courts across the country in 2004, “It is true that a case is taking nearly two to three years to get disposed of, but regular courts take twice as much time. There are also some other good features about these courts — adjournments are not given easily, there is no court fee and the parties are made to appear regularly.”

The panel submitted its recommendations to all family court judges and district legal services authority.

For Andhra Pradesh, these include a separate room for access to children as orders are passed for the non-custodial parent to meet the child within the court premises, cells to provide basic information regarding court procedures, dates and status of the case; prelitigation counselling centres so that a dispute can be amicably resolved, and appointment of lawyers only as amicus curiae and not in a commercial mode.

Sarojini Das has been making the rounds of the sub-divisional judicial magistrate’s court in Ganjam for the last three years. The 28-year-old has filed a suit seeking maintenance from her husband, who deserted her after five years of marriage. Date after date, the hapless woman who has a meagre source of livelihood and hopes for an order ensuring the payment of a monthly maintenance to her, goes to court but returns disappointed as the case is not heard or is posted for another date. The reason: a huge cause-list or nonappearance of her spouse.

Das is not the only one. Thousands of women, particularly from the lower class and the backward sections of our society are going through similar ordeals across courts in Orissa, because of the paucity of designated courts for adjudicating family cases. The number of these cases is only spiralling because of modernity-spurred marital discords coupled with rising levels of awareness on rights of relief.

Orissa, which has a population of more than four crore, has only two family courts, one in Cuttack and the other in Rourkela. The people in the other 25 districts have to bank on the courts of the sub-divisional judicial magistrate and judicial magistrate first class for maintenance cases and the civil judges for divorce and separation cases. As such, though all disputes relating to family matters are to be settled within one year, only a handful of cases have been decided within the constitutionally stipulated timeframe.

“The delay is inevitable. The trial courts have a back-bending backlog of cases. Thus, family cases, especially those relating to separation and maintenance, are pushed to the backburner,” explains a judicial officer. The non-appearance of the spouses on summons, as well as the inaction of police in executing warrants issued against them has also been a bane, the officer added.

At present, more than three lakh cases are pending in the lower judiciary with matrimonial cases accounting for at least 40,000 of them. The situation in the family courts in Cuttack and Rourkela is not much better. Several cases are pending in these courts, which are plagued by infrastructure deficiencies and shortage of staff.

The Cuttack court alone has a backlog of around 5,000 cases with an average of 1,800 cases being filed every. The court premises comprises one hall, half of which is used for court purposes and the other as office and chamber. Counselling,which forms the core of settling family matters, through mediation and reconciliation, is worst hit as there is no space nor atmosphere for vital personal interactions. The two counselors have to sit in non-conducive zones with litigants, who would not open up in public. Thus, reconciliation overtures are grossly affected and this leads to cases dragging on. Besides, around 325 warrants in maintenance cases have been issued between 2001 and 2008, but these have not been executed by the police.

Chief Minister Naveen Patnaik has been quick to announce the setting up family courts in seven districts within this year. If things move in the right direction, it would provide the much needed succour to suffering people.

The very concept of marital law in India changed with the enactment of the Family Courts Act in 1984. Conciliation and peaceful settlement of family disputes became the key words. The family courts were also seen as a way of doing away with the protracted procedures of the civil courts and thus reduce the suffering of the litigants.

However, these institutions have not been totally successful. Kerala has 16 family courts — two each in the districts of Thiruvananthapuram and Kollam and one each in the other 12 — but these have been unable to cope with the load. There were as many as 30,741 cases pending in these courts, many more than three years old.

One reason for this is the tremendous social change that has taken place in the state. The change in lifestyle caused by the inflow of NRI funds, the education and employment of women and their consequent economic independence, gender sensitization, the surge in nuclear families, consumerism, and increasing criminality have all affected the family set-up and led to a rise in the number of broken homes and divorce cases.

Some other issues also need to be addressed. The provisions of the civil or criminal procedure codes do not bar family courts from laying down their own procedures for the settlement of matrimonial disputes. The Act, with the aim of achieving reconciliation, also envisages the association of people engaged in social welfare in the resolution of disputes. However, family courts are often not conducive to reconciliation and “act as extensions of civil courts”, says advocate Lekha Suresh, who has been very active in the social sector.

The Act also provides for appointment of counsellors to assist family courts dispose of disputes. However, the number of cases is so large that it becomes difficult for counsellors to discharge their duties properly and they, thus, act mechanically.

A family court can also take the help of a medical expert or a person professionally engaged in promoting the welfare of the family. The state is supposed to pay the expert but more often than not the parties are forced to fork out the money. “How many people can afford this?” asks Lekha. The aim of setting up family courts is “to treat the root cause instead of treating the symptoms”, as a division bench of the Kerala High Court pointed out. However, even now the symptoms, and not the root causes, are being treated.