Top 5 things wrong with Matrimonial Law in India

Matrimonial disputes today may possibly (and rather unfortunately) be one of the largest growing branches of litigation in India. In metros alone, this is evident by the proliferation of dedicated Family Courts and Mahila Courts to deal with Matrimonial disputes, as well as the celerity with which they too have become overburdened like most other courts. 

This article is a brief look at a few aspects from a Lawyer's perspective on the shortcomings, challenges and failures of the practice of law relating to matrimonial disputes in India. Though the subject merits a larger discussion, the current article is restricted to 5 major aspects:
  1. Multiplicity of Litigation, Criminalization & Matrimonial Disputes - Anyone who has had the unfortunate experience of having a loved one go through a matrimonial dispute would be familiar with the fact that a divorce case is not just a divorce case. Along with the divorce case, there will be cases filed by either side on an exceeeding number of issues like maintenance, custody, domestic violence, dowry harassment etc. etc. In genuine cases, the aggrieved person should certainly not shy from availing of judicial remedies available to them. However, it is an open secret that these cases are very often a part of the 'legal strategy' to create leverage to ultimately be used in the negotiation of a financial settlement. Regrettably, the collateral damages of such 'legal strategy' is that often false cases get filed - often cases that are criminal complaints. This leads to immense harassment of the other party at the hands of the police and our ailing criminal justice system. In a recent case titled K. Srinivas Rao Vs. D.A. Deepa, a 3-judge bench of the Honourable Supreme Court when dealing with a case under the oft misused Section 498A, called for the need of mediation centres having pre-litigation desks / clinics to make efforts to settle matrimonial disputes at the pre-litigation stage itself.

  2. No practical consequences of committing perjury - The irony of matrimonial law in practice is that while (often false) criminal cases like the ones stated above are instituted without hesitation, and the police and other agencies act with inordinate haste to prosecute people, the one criminal offence actually committed regularly and brazenly by parties to matrimonial disputes - perjury - is rarely prosecuted. While perjury is a criminal offence punishable with up to 7 years of imprisonment and fine, convictions for the same are few and far between. While it is often difficult to satisfy the requirements to prove the commission of perjury, there are often cases where it can be conclusively shown that a party has presented false / fabricated evidence before a court of law. The abject failure to prosecute and convict for perjury unfortunately fosters a situation where filing false cases has become regular tools of the trade for many unscrupulous lawyers, and clients often justify it to be a commonplace and therefore acceptable 'legal strategy.'

  3. Interference by the Police - As mentioned above, litigants are often conditioned and convinced to believe that filing false cases is in their best interest in order to intimidate the other side and maximize the ultimate financial settlement. A role too often played in this intimidation and harassment is that by the police. For reasons best known to them, the police take a particular interest in involving themselves in matrimonial disputes. In cases where even a plain reading of a complaint does not disclose a convincing case of the commission of an offence, the police will still land up at the accused person's house (or call them to the thana). The harassment, social humiliation and bribes work a long way towards this intimidation. This is not to say that in genuine cases of dowry harassment, domestic violence, the police should not play a role, but when it's plain to see that a complaint has been filed merely as a retaliation/counter-blast to the initiation of divorce proceedings, harassment by the police only exasperates the situation.
    Edit: In a landmark case (02.07.2014), the Hon'ble Supreme Court has issued directions to curb this rampant abuse of power by the police. You can read more in my blog post here.

  4. Impediments to settle - Any lawyer versed with matrimonial litigation could tell you that more often than not, matrimonial litigation ends in a settlement. This is only logical as Courts are usually averse to deciding matters that are intensely personal in nature and often convoluted with mud-slinging by both sides. Therefore, it becomes extremely difficult to decide who's 'right' and who's 'wrong' in a matrimonial dispute. Moreover, courts also recognize that there is no real winner or loser in matrimonial litigation, and the best case scenario in deciding what is completely a personal dispute, is really in both parties walking away amicably (especially when children are involved). Many people waste away an immense amount of time and money in extremely contentious litigation before they inevitably come to the realization that a settlement would be in both sides' self-interest really. The State and the courts have done a tremendous amount towards promoting settlements, such as by setting up of mediation centres, appointment of counsellors attached with family courts, and judges themselves encourage parties to resolve their differences amicably. However, the road to a amicable settlement is often impeded by two main factors - the egos of the parties involved and bad legal advice. (To be covered more in a future article).

  5. Irretrievable breakdown of marriage - As of now, divorce can be sought on a limited number of grounds - primarily those in the nature of establishing that the other spouse committed cruelty, adultery, desertion etc. It is not simply enough to seek a dissolution of marriage on the ground that the parties are not compatible and do not enjoy a healthy relationship. It would come as no surprise to anyone (except perhaps our legislators) that when parties get involved in a matrimonial dispute with a multitude of petitions and criminal complaints replete with allegations of a deeply personal nature, there is little to no chance of the two parties ever going back. The instituting of false criminal proceedings, for instance, virtually destroys any chance of the two parties ever reconciling. In such a scenario, their marriage is effectively finished, and to then expect the judicial machinery to process and adjudicate as to whether the person pressing for divorce was at fault, or the person resisting it, is not only academic, but a criminal waste of time, money and effort of everyone involved. At many points, the Supreme Court itself has lamented the failure of the legislature to make irretrievable breakdown of marriage a valid ground to seek divorce, especially when parties are involved in litigation for several years and decades, vehemently fighting each other over every issue and every step. Despite recommendations in several judgments that irretrievable breakdown should be made a ground for divorce, till now it has not been made so. (However, hopefully the Marriage Laws (Amendment) Bill, 2010 will be passed soon to rectify this situation).
Out of all litigation, Matrimonial disputes perhaps have the most adverse affect on the social milieu. Therefore, it is vital that every effort must be made to simplify such litigation and to resolve them through amicable settlements as far as practicable, preferably at a pre-litigation stage. This is especially possible since most matrimonial disputes really boil down to two things - the finances and custody of children, which are both easily resolvable if the parties and their lawyers approach the matter with maturity. Moreover, the legislature needs to come to terms with the fact that marriage is a two-way street, and if even one party wants out there is no moral high-ground in constraining people to continue being trapped in a gainless relationship.

To fix the current challenges faced by litigants, the wheel really does not need to be re-invented - little tweaks here and there can do wonders to ensure that people at such an emotionally turbulent juncture of life, are facilitated (rather than obstructed) by the mechanisms meant to resolve such issues, not prolong them.