In her continuing series, the author makes some valuable suggestions to fast track divorce petitions.
DIVORCE, as defined by the Cambridge Dictionary, is “an official or legal process to end a marriage.” But when you approach the courts in India for a divorce you are put through the legal wringer and you come out spinning, with or without a divorce, a few years later. If a few changes were incorporated it wouldn’t be such a cumbersome process.
Time
Sometimes a divorce case lasts longer than a marriage. This I state, not from merely theoretical research, but both, from the cases I handle and from my very own personal experience. There is Mr Parekh’s* divorce case which has gone on for over 13 years, for a marriage that lasted around 5 years with no children, and each New Year I’d jokingly tell him to make a New Year resolution of finishing his divorce case. In America or the United Kingdom, this situation wouldn’t have arisen. Nor the situation with my divorce, where I was married for less than 2 years (thank God) and the divorce took around a decade for inexplicable reasons. I speak about this in detail in my book The Ex-Files.
So divorce cases really need to be fast-tracked and there could be daily hearings so that you can move on to a new life. These are possible through extended court timings, filling in the judge vacancies and of course, the inevitable –Virtual Courts.
Triplicate and Bureaucracy
With the courts doing away with so much unnecessary paperwork while filing any urgent hearings during the lockdown, the same could be done even when normal court hearings resume. Sometimes some documents are asked for, which really reflect the bureaucratic wheels speeding away-like recently I filed for divorce by mutual consent for a famous couple-in the news frequently for their work. They had a notarized marriage certificate but the court insisted on the original, this despite the fact that everyone knows that they are married and later as another client pointed out who would want to file a divorce from someone when they are not married to that person.
Access and Interim Maintenance
These are very important aspects of a divorce proceeding.
Section 24
Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum…
Section 26
Custody of children.- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody,
If these were dealt with right at the beginning of the case then not only a lot of heartaches would be avoided but also the warring couples would realize that there wasn’t much left to fight over. A few years ago I had sent these as a recommendation to the Attorney General of India but it hasn’t yet been incorporated.
Separation of issues
If the couples could agree to a divorce and checkmark all the issues that they are agreeable to and leave the contentious issues to be presented before the court it would be ideal. This way, the couples could move on and divorce wouldn’t be used as a tool of torture or teaching the spouse a lesson. In Brad Pitt and Angelina’s case, this is what they have done so why not in India where our judges and judiciary are intelligent and progressive.
As a young lawyer, I still believe that quite a few of the changes will be incorporated and our judiciary would become better.
*Name changed to protect privacy
[Vandana Shah is a Senior Counsel with National Commission for Women, an award-winning lawyer, social entrepreneur and author whose book Ex-Files published by Penguin under the Shobhaa De imprint is a part of the Judicial College syllabus]
