KIRIT P MEHTA SCHOOL OF LAW, MUMBAI
A Research Project on:
Disposal of Matrimonial Cases
IN COMPLIANCE TO THE PARTAIL FULFILLMENT OF THE MARKING
SCHEME, FOR SEMESTER IV OF 2018-19, IN THE SUBJECT OF Family
Law
SUBMITTED TO: - SUBMITTED BY:-
Professor Ishnoor Mayank Srivastava
A058
BBA. LLb (Hons.)
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Index
S.No. Contents Page No.
1. Introduction 3
2. Research Problem 3
3. Delay in Disposal of Cases 4
4. Cons Observed in Process 5
5. Conclusions 6
6. Bibliography 6
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Introduction:-
The paper is going to give brief analysis on the process of disposal of matrimonial cases in
India. The time taken by the family courts for the disposal of matrimonial cases has been
constantly criticised by the jurists and the litigants. There has been justice delayed in the
matrimonial cases which causes constant emotional as well as financial disturbances to the
litigants. Long delay in the disposal of such cases has already resulted into huge arrears.
There has been a heavy back-log of pending files in various courts of the country. The justice
delayed not only affects the adults, it also affects the lives of the children, and children have
also been involved in many cases which also shatters the mental stability of the mind. There
has been no set procedure established by the law which could justify the delay in the cases.
Keeping the case pending by one of the litigant amounts to harassment to the other side and it
is deliberately resorted to as a method of punishment to the other side. High Court (HC) has
ordered this time to dispose all the pending matrimonial cases in the tenure of six months.
This has not been a single instance, same ordered was passed by the Chennai High Court
dated 2nd July, 2016 and by New Delhi High Court dated 1st October 2014. If the ordered has
been passed, why has it been not followed yet and if it has not been followed: why no action
has been taken against it. To have a healthy populated country, we need to seek special
attention of the concerned authorities towards the issues and get it set right. The paper will
present the grievances of the litigants which they have to suffer because of the back-log of
cases. Various ways and methods are discussed in many meetings, then why the failure
prevails in the system regarding disposal of cases. After various rules, why there is no
downfall in the crime rate regarding the matrimonial cases. The Vishakhapatnam Court had
told that delay in the court procedure in granting divorce seems to be a blessing in disguise
for estranged couples. There were recently two cases in Vizag Family court where the
couples reunited after eight-ten years due to delay in disposal of the divorce cases. In the first
case, the litigants had two children who are around 7-8 years till the time the date arrived of
the proceedings. They decided to pull back the divorce proceedings and decided to cohabit.
Research Problem:-
Why has there been huge delays in the hearing of the cases regarding the disposal of the
matrimonial cases? The pending cases in the courts has led to many illegal marriage or
illegitimate child. It was never in the option of the litigants to break the law and go against
the protocol but the delay in the hearings of such cases leads to the commencement of such
things. Even after many sessions on how this matter can be solved at a faster rate, no such
law or any new procedure has been made which will insure the speedy trials. The factors such
as child, age, and impotency were the main contentions, still it was paid a deaf ear and no
changes have been till now. Conducting of such sessions have been of no use till now, getting
out solutions to these problems is just the first step: applying those solutions which have been
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discussed by most of the jurists will boost the process of disposal of cases and that will be
considered as a concrete step put forward by the authorities. Why the judicial authorities
related to these departments are failing repeatedly to meet their goals on time?
Delay in Disposal of Cases:-
No standard uniform practise and procedure is followed by the courts for the disposal
of the matrimonial cases. The provisions for the interim maintenance and permanent
alimony, which has to be granted under Section 24 and 25 of the Hindu Marriage Act
are not being utilised. This has been a matter of serious concern. It is certainly not the
intention of the law that parties whose marriage is going to dissolve, may suffer
further misery of starvation in the absence of grant of alimony. The different tactics
applied by the litigants to get rid of their wife/husband had seen many new ways.
One such example is that petitioner Meenakshi Sundaram1 had moved to the family
court under The Hindu Marriage Act 1955. He wanted his marriage to me annulled on
the ground that his wife had declined to consummate. Later the ground was changed
to cruelty. Our justice system even in grave cases, suffers from slow motion syndrome
which is lethal to 'fair trial' and that speedy justice is a component of social justice
must be ensured to every litigant. This case also is a case where the situation is grave,
as the allegation is non-consummation of marriage.
Suggestion:-
In suit or proceedings, before a Family Court, it shall not be necessary to record the
evidence of witnesses at length, but the Judges as the examination of each witness
proceeds, shall, record or cause to be recorded, a memorandum of the substance of
what the witness deposes, and such memorandum shall be signed by the witness and
the Judge and shall form part of the record.
Though the provisions of the Civil Procedure Code is made applicable, still, the
Family Courts can lay down its own procedure with a view to arrive at a settlement in
respect of the subject-matter of the suit or proceeding and Section 10 of the Act,
dealing with the same, runs as under:-
10. Procedure generally.-(1) Subject to the other provisions of this Act and rules, the provisions
of the Code of Civil Procedure, 1908 (5 of 1908), and of any other law for the time being in
force shall apply to the suits and proceedings other than the proceedings under Chapter IX of
the Code of Criminal Procedure, 1973 (2 of 1974), before a Family Court and for the purpose
of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall
have all the powers of such Court.
1
Meenakshi Sundaram Vs. H. Radha, Civil Revision Petition (PD) No. 320 of 2016
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(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974), or the rules made thereunder, shall apply to the
proceedings under Chapter IX of the Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down
its own procedure with a view to arrive at a settlement in respect of the subject-matter of the
suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.
Cons observed in the process:-
The litigants are almost in dilemma about the leading judgements in the cases and the huge
pile of cases which further delays the date for the judgement. The future planning of the
litigants are under suspension. Procreation (process of reproduction) of children may become
an impossibility because of the advancement of the age of the litigants. Some of the impatient
litigants resort/ may lead to illegal marriage and then it leads to the birth of an illegitimate
children. The late disposal of cases leads to the high rise in these types of cases. When such
serious consequences are involved in the lives of the litigants, it should be the duty of the
family courts to dispose the cases at a fast rate. If there are any bottlenecks in the system or
the handicaps of the judges, it should be discussed in the judicial academies and solution has
be to sorted out. Either the law has to be changed or the procedure. Change will also be
needed in the attitude of the parties. Calling it the “silent cry of a husband, who is allegedly
deprived of the conjugal relationship right from the date of marriage”, the judge had directed
to dispose of all the family related cased as early as possible. Most people resort to “parallel
proceedings” under the better known maintenance provisions under Section 125 of the
Criminal Procedure code, the court noted that parallel proceedings took more time and
deprived the weaker spouse of maintenance.
Suggestion:-
The maintenance provisions under the Hindu Marriage Act apply to both spouses, meaning
that the husband can also claim maintenance from wife at the time of divorce in case it is
proved that he does not have sufficient income or assets. The directions have been issue after
the court decided to hear nine separate pleas for maintenance filed by women whose
husbands had filed for divorce. The court noted that the disposal of cases had taken a long
time, with the oldest of the nine cases dating back to 1996. The court in its order has now
directed that the spouse who files for divorce is required to file his or her affidavits with
details of income, assets and expenditure, as required by Section 24 of the Hindu Marriage
Act, at the same time as the divorce plea, if they want to claim maintenance. The respondent
party should also file their affidavits within 30 days of the notice being issued, the court said.
Further, in order to protect the spouse who is the respondent in divorce proceedings, and is
usually the party which claims maintenance, the court has said lower courts could consider
directing the petitioner to deposit money to be paid to the respondent as litigation expenses.
The court has also prescribed that the affidavit and counter affidavit on income must be filed
within six weeks of notice being issued on a divorce petition. “If the disposal of maintenance
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application is taking time, and the delay is causing hardship, some ad interim maintenance
should be granted to the claimant spouse,” the court said.
Conclusion:-
In order to provide a cheap and speedy remedy to married women, orphans, sisters and
daughters, who are generally handicapped for lack of funds, it appears necessary to set up
Special Family Laws Courts, which will not be hidebound by the technicalities of the Civil
Procedure Code or the Evidence Act. They should, instead, follow a very much simplified
procedure. We agree with the proposal made by the Commission on Marriage and Family
Laws, to the effect that the Legislature should lay down a few fundamental principles for the
guidance of such Courts and the remaining procedure should be regulated by simple rules to
be framed by the High Courts. The object aimed at should be that substantial justice should
be ensured to the parties who will have recourse to these Courts and, therefore, there should
be a certain amount of flexibility in the procedural rules that shall govern these Courts.
Family Courts should be urged to make use of alternative disputes resolution (ADR) methods
such as conciliation, mediation and lok adalat. It is an enjoined duty of the family courts to
make efforts for settlement at the first instance, wherever it is possible to do so, consistent
with the nature and circumstance of the case. Settlement brings finality to the litigation and
peace to the family. Directs trial courts should ensure speedier granting of alimony and
maintenance to the ‘weaker spouse’.
Bibliography:-
https://www.indiatoday.in/pti-feed/story/hc-for-speedy-disposal-of-matrimonial-
cases-559326-2016-02-22
https://www.business-standard.com/article/pti-stories/hc-for-speedy-disposal-of-
matrimonial-cases-116022000373_1.html
https://indianexpress.com/article/cities/delhi/high-court-wants-divorce-cases-
disposed-of-in-6-months/
https://blog.ipleaders.in/matrimonial-dispute-settling/
