Marking a decade of intimate litigation

Like Agnes, many had expected the Family Courts, set up under the Family Courts Act, 1984 8220;with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and families8221;, would be the magic wand for that poor wife to get maintenance speedily, or that harried parent to obtain custody of a school-going child.

What one finds though, is people like Hemlata, who has been coming to the courts for the past five months. Her husband who lives in Govandi suddenlystopped paying her maintenance. 8220;And the office here cannot seem to be able to go to his house or send him a letter8221;, she says, 8220;everyday they just give me another date8221;.

If the two benches hearing matrimonial matters at the City Civil Courts a decade earlier took around 10 years to dispose of a case, the 8220;speedy settlement8221; promised under the Family Courts comes after a good two years. That too, provided the courts function on full strength and lawyers are willing.

It is only now that with six judges, the seven-judge strength of the Family Court looks complete. Judges S B Lolage and Rekha Bhatt were appointed only last month. For long having battled their cases with almost half the strength of judges, lawyers here would not like to make an issue of this vacancy or of the fact that 8220;one has to make a representation for a strength of 10 judges8221;. But the delays in appointment and increasing workload has left its mark on the disposal of cases.

Statistics collated at the bar show that cases haveclimbed by a 1,000 every year since 463 cases were filed in 1989. Yet, of the 5,411 cases filed in September 1998, only 3,868 were disposed of that year.

Yet, it is not just the slow disposal of cases that bothers the bar. Recently, the high court heard a petition challenging the appointment of one of the Family Court judges who was promoted from a marriage counsellor.

According to the petitioner, though a law graduate, the judge had not practised as a lawyer and did not have practical knowledge of various provisions of law like the Indian Evidence Act. The state advocate general pointed out that the judge8217;s qualifications were covered by the Family Courts Act and she had been appointed by a 8220;full house of the Bombay High Court8221;.

The petition was withdrawn, but views are still divided on whether one needed judges with a 8220;practical knowledge of law8221;. Since the express aim of the Family Courts Act was one 8220;to promote conciliation8221;, the 8220;nitty gritties8221; of law are sought to be overlooked. Whileknowledge of law is necessary, one need not be a practising lawyer to be a judge here. Also, to promote informality of procedure, the Indian Evidence Act is not held to be applicable. Anything, in fact, can be taken as evidence or 8220;information8221; on the matter.

So what happens? Lawyers who have had their cases pursued to higher courts insist that the Indian Evidence Act does apply. Evidences, they point out are sometimes wrongly recorded, important documents are overlooked. Orders are then overturned by the high court.

But there are an equal number of lawyers who say marriage counsellors have proved more than sensitive to matters. Secretary of the Family Court Bar Association, Mrunalini Deshmukh, cites a case where Judge B Y Parikh gave the custody of a two-month-old child to the father when it was shown that the mother was prone to mental disturbances, though she had never harmed the child. 8220;The judge went beyond the usual norm of giving the child to the mother no matter how she is,8221; she pointsout.

The judges appointed can be marriage counsellors attached to the court itself, judicial officers from the state Law and Judiciary department or district judges. If counsellors have no practical knowledge of law, district judges and state law officers are 8220;too technical8221;, losing out on compassion or empathy in the process.

The intimate but belligerent nature of litigation here takes its toll on lawyers as well, who more often than not are blamed for causing delays in disposal of cases. 8220;Yes, like in other courts, money making is a racket here as well,8221; says a lawyer, 8220;but sometimes the clients themselves want the lawyer to delay the case. If you have a party which has filed for divorce and the other party does not want it, dragging the case is the only way out. It might just end in consent8221;.

But the Act has also worked for some. Only marriages under the Special Marriage Act and Hindu Marriage Act come under the jurisdiction of Family Courts, while Christians, Parsis and Muslims move the highcourt. However, activists like Agnes have snatched upon a small clause wherein disputes over matrimonial homes are also entertained here. 8220;So if a Christian woman8217;s husband is moving for divorce and she fears being thrown out of the house, we move the Family Court for the house,8221; she says. A quick, short-term remedy. 8220;Till there is statutory backing for a wife8217;s share over matrimonial property, these are the only means we have,8221; she says.