The long road to separation

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


Shivani Chaturvedi | August 4, 2017 | Chennai

#society   #legal procedures   #law   #divorce   #marriage  
(Photo: Shivani Chaturvedi)
(Photo: Shivani Chaturvedi)

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-day-wait 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 Rs 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. 
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 six-year-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 Rs 25 lakh as the alimony, the lawyer would say Rs 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.

(The article appears in the August 1-15, 2017 issue of Governance Now)



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