Neither the law nor its hidebound interpretation makes it easy for a couple to end a marriage

Seated on one of the wooden benches lining the walls of a sultry family court in Chennai, 28-year-old school teacher Mallika* waits for her case number to be called. This will be her 13th hearing, in as many months, for divorce, monthly maintenance, and custody of her three-year-old son. Her lawyer, a young woman, gestures silently to her to approach the judge. She returns within moments. “Adjourned,” she tells me. “Again.”

There is a steely resolve about Mallika as she recounts the circuitous journey of her case, although she knows it could be months if not years before an order is passed. Her school has been considerate with leave, but this protracted case is costing her time and money.

It needn’t have been so long-drawn. But for the first few months, the additional court had no judges. When the judges came, her husband would not turn up at hearings. Just like today, for the third time in a row.

Do it for the kids

There have been days when her patience has run thin, days when tempers have flared. But the most trying day at court was one that should have been a fairly benign one — the day she and her husband met the counsellor, as mandated by family courts.

“The counsellor told me off for not wearing a thaali (mangalsutra). He said I was still married and that I was disrespecting Indian culture. He asked my husband if he loved me, and when he said ‘yes,’ the counsellor asked me what more I could want. I told him I wanted respect,” says Mallika. “When I think about it, the session can hardly be called counselling — it was very one-sided.”

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A couple of years ago, on Valentine’s Day, Simran, 40, a trainer, remembers being given a similar dose of confounding paternalistic advice — this time by a judge in a Mumbai family court, where she is battling for divorce and custody of her daughters. “He recommended a restaurant across the road and said my husband and I should have a meal together and try and work things out. He said we should do it for the kids.” Simran, whose case involved domestic and sexual abuse, refused to consider the suggestion. “Then we were sent for endless rounds of counselling and mediation. It just wasted months of my time.” The case, which began in 2011, carries on.

In September this year, the Supreme Court waived the six-month ‘waiting period,’ once compulsory for mutual consent divorces. This was seen as huge progress in a country where getting a divorce can take anything from two to 12 years. But a contested divorce continues to be a prolonged nightmare for the couple.

Three decades ago, matrimonial cases were taken out of the adversarial setting of civil courts to family courts. This came with an inbuilt counselling and mediation mechanism. But the dynamics of family courts also came inbuilt with huge systemic delays. The notorious staff crunch, for one, whether among judges or stenographers, leads to a massive pendency of cases. This means litigants sometimes wait months just for the next hearing. In Chennai, an average of 70-80 cases are listed for hearing in every court, of which a fraction is substantively heard, and the rest adjourned.

Five years and counting

Family courts clearly need reforms in procedural practices to make sure cases don’t drag on interminably, says Bengaluru-based lawyer Jayna Kothari. “What we need is a timeline, a case management strategy that is more litigant friendly, so cases are closed within a reasonable time. Especially so for maintenance and child custody, where couples end up spending years in court.”

Ravi Prasad, a senior IT executive in Chennai who has been fighting a divorce and custody case for five years now, would agree. His teenage children have chosen to live with him, “but the petitions don’t stop and adjournments are constantly forced on us,” he says. He has lost count of the number of interim petitions filed since the case began in 2012. “There you go — seven,” he says, after a quick search on his laptop. “And that doesn’t include the cases of kidnapping and domestic violence slapped on me.” He has tried on several occasions to settle the matter out of court but believes that his wife’s lawyer does not allow it.

Indeed, a protracted case works to the advantage of lawyers, especially if every adjournment and hearing means a fee. “And this is where lawyers need to be sensitised. A prolonged case is obviously beyond the means of many,” says Kothari.

It can become a vicious cycle: the longer the case stretches, the more judges change hands. Each time, they have to study the case afresh, a time-consuming exercise. “My case file is getting thicker by the day, so the judge has no time to read anything but the final argument,” says Ravi. “It’s ridiculous. I want to move on with my life, not have it swallowed up by the court.”

In an endless loop

But as much as procedural delays, there is something far more fundamental that holds up divorce in India: the Family Courts Act’s thrust ‘to promote conciliation’ and ‘preserve the institution of marriage’ that lends itself to much sanskari interpretation. Counsellors and judges often try first to “save” rather than “break” matrimony, says senior advocate Sudha Ramalingam. “The judiciary is after all nothing more than a reflection of our society, where marriage is seen as a sacred union, not a legal contract.”

So litigants like Mallika and Simran are put through endless loops of counselling and mediation, whether they want it or not, wasting precious time. Counselling, if conducted by trained professionals, can indeed sometimes be useful, says Ramalingam, but a push to reunite or reach a settlement is not just something the couple might not want, it can leave people stunningly vulnerable.

K. Santhakumari, president, Tamil Nadu Federation of Women Lawyers, tells me about a case that she wrapped up last year. Her client, a 55-year-old homemaker, wanted a divorce for reasons that included domestic abuse. The case stretched for 10 years. The judges — and there were several over the decade — couldn’t understand why a woman of her age would want a divorce. “Almost every judge told my client, ‘You have lived most of your life with this man, why can’t you spend the remainder with him’.” The woman had to explain, repeatedly, that she had stuck around only because she wanted to see her children settled; now it was time for her to get on with her life.

The legal system today does not allow for an easy parting of ways. “If a marriage is dead and your spouse does not want a mutual separation, you are left with no choice but to prove adultery or cruelty or desertion or insanity. And this takes a long time,” points out Chennai-based lawyer Poongkhulali B. In 2013, the Marriage Laws (Amendment) Bill was moved, introducing ‘irretrievable breakdown of marriage’ as a ground for divorce.

The Bill was stalled. Only because various groups protested, predictably, that it might lead to a breakdown of the institution of marriage and family values. Again, sanskar.

The amendment, if passed, could make life much easier for hundreds of couples by speeding up divorce. “My only concern would be,” says Poongkhulali, “that it could, in theory, result in financial hardship for women and children if men unilaterally decide to pursue such a remedy. But if there are safeguards, there is no reason why this ground is not suitable for India.”

Get with the times

Meanwhile, last month, a 96-page Supreme Court judgment, which dealt with an entirely tangential matter — the pros and cons of introducing video-conferencing during divorce — brilliantly encapsulated how the Family Courts Act 1984 is at odds with contemporary social trends. The debate began earlier this year when a Supreme Court bench directed courts to begin video-conferencing facilities, so that estranged couples didn’t have to travel between cities for each hearing, as is often the case when one of them moves residence.

In October, another bench raised concerns that video-conferencing could imperil the spirit of the Act that confers “the court with a duty to persuade the parties to reconcile”.

In his dissenting judgment, Supreme Court judge D.Y. Chandrachud pointed out that the use of technology could reduce the “massive pendency of cases” and would help people whenever it was difficult for them to come to court.

Justice Chandrachud was in a minority on the bench but his argument carried an important message for the courts — to get with the times. “Fairy tales are built along the lore of couples ‘who lived happily ever after…’, but we know that life is not perfect... marital relationships do on occasion run aground, increasingly so in recent times. Institutions such as the Family Courts are intended to provide service to families in distress. In doing so, there must be a synthesis between the ideals of the law and the need to implement them in dealing with practical problems of society today.”

He left the bench with a question: “Should this court even attempt to put a lid on the inexorable movement towards incorporating technology? If we do so, we risk ourselves being left behind as an anachronism in a digital age.”

Supreme Court advocate Indira Jaising echoes the sentiment. Divorce, she says, needs to be ‘liberalised’. “People cannot wait a lifetime for a divorce. Times are changing, and people now know that life does not begin and end with marriage.”

*Names of litigants changed to protect identity.