[sacw] India: widen jurisdiction of family courts & reform matrimonial laws

[Harsh Kapoor]

FYI
Harsh Kapoor
------------------------
The Hindustan Times
7 November 1999
Features 

Trapped
(Vandana Majumdar reports on a recent call to reform our hopelessly
outdated marriage laws)

At a recent seminar, Justice Ajit Shah of the Mumbai High Court, stressed
the need for widening the jurisdiction of family courts and reforming
matrimonial laws. The legal fraternity, women activists and hapless
couples have been quick to welcome the suggestion. Indian matrimonial laws
are such that individuals prefer to remain in "empty-shell" marriages,
bored or bruised, rather than go through an ordeal in court.

An attempt to reform matrimonial laws led to the Family Courts Act, 1984,
which established exclusive courts to resolve domestic conflicts, provide
assistance, and, in cases of divorce, secure speedy settlements.

The family courts had the same jurisdiction as a district court or
subordinate civil court. That is, they could entertain a suit or
proceeding pleading for a marriage to be annulled or restitution of
conjugal rights or judicial separation or dissolution of marriage.

The Act prescribed one family court for every 10 lakh people, as well as
in every area of a state comprising a city or town whose population
exceeds 10 lakh. The progress, however, has been extremely tardy. Says a
legal expert of the National Commission for Women (NCW), "A survey,
conducted in 1994, showed that only 50 family courts existed."

Numbers apart, the hope that family courts would both adjudicate and
advise was belied. Says NCW member Poornima Advani, "The family court was
supposed to be a specialised venue where sensitive, delicate matters could
be understood. But with the intervention of too many lawyers, family
courts now operate more as an extension of civil courts rather than
reconciliation courts. The human element as originally conceived is
totally missing."

In fact, there is also a strong view that lawyers should be excluded from
family courts, and "do-it-yourself" divorces should be possible. But in
his speech, Justice Shah expressed reservations about this, and pointed to
a Mumbai high court judgement which clarified that the Act did not
specifically bar advocates from family courts.

But Justice Shah did believe there was a pressing need to make advocates
appearing in family courts more sensitive. "There should be proper
training courses for advocates conducted either by the Bar Association or
the High Court," he said.

Advani, suggests that the courts also rope in part-time services of those
qualified in social work-who can be relied upon to be more humane.

But a sensitive, humane court is impossible to create as long as archaic
marriage laws are not changed. Said Justice Shah: "The existing
matrimonial statutes and, in particular, the Hindu Marriage Act, 1955, is
based on an English statute, the Matrimonial Causes Act, 1950. Since then,
the English law has progressed in strides, but we in India are not willing
to take active steps to remedy the defects although we are fully aware."

Justice Shah specifically cited the example of Section 27 of the Hindu
Marriage Act, which provides for the settlement of only the property
presented jointly to the husband and wife at or about the time of their
marriage.

Concurs senior Supreme Court advocate Indira Jaising: "Very often, a woman
just clings to a bad marriage because the law does not allow the court to
transfer the property in her name. Right now, all she can ask for is
alimony. The law should be changed to ensure that a marriage is terminated
alongwith a property settlement."

Asks Senior Supreme Court advocate Shyamlha Pappu, "How many divorced
women can keep running back to the courts for the division of a house or
land or anything else? The issue is about dividing the property
equally-and this should be ensured at the time of divorce itself."
Britain's Matrimonial Causes Act, 1973, stipulates the transfer of
property from one party to another as well as settlement of the spousal
property for the benefit of the needy party and the children.

Justice Shah also felt that Section 9 of the Hindu Marriage Act-known as
the Restitution of Conjugal Rights clause-has outlived its utility. If a
person walks out of the matrimonial home, the other partner can file a
petition under this section asking the court to order the spouse to
return. Says Jaising: "This is a meaningless, outdated, barbaric
provision, because no one can force anyone to stay with him or her. This
section should be removed because it can be used as a tool of harassment."

Adds Pappu: "When a person walks out, it is a very conscious decision. You
can't ask him or her to come back. How can a court decide that somebody
has to live with somebody? It has to be voluntary."

Advani says the list of changes required in matrimonial laws is "endless".
For example, a person trapped in a bad marriage can seek divorce only
under a handful of grounds laid down in the Hindu Marriage Act. "We have
to focus on the fact that simple irretrievable breakdown of marriage is
reason enough for divorce."

Above all, "The process of changing matrimonial laws should be initiated
urgently."