Almost a decade ago, when I entered the legal fraternity as a fresh graduate, the striking differences between legal proceedings in two identical matrimonial disputes raised by two similarly placed women clients, one belonging to Chengalpattu and the other belonging to a neighbouring taluk, before the family court and the sub-court respectively both housed in the Chengalpattu Integrated Court Complex caught my curiosity.
The family court was flooded with litigants and when they were absent citing pressing reasons, cases got adjourned resulting in protraction of proceedings even in the presence of their advocates. On the other hand, the sub-court was relatively calmer as litigants came only when they were required for trial/mediation and there were mostly exchange of factual and legal submissions from advocates and matters were disposed more expeditiously.
Similarly, whenever the family court client visited the court, she broke down emotionally based on what was spoken, seen and heard, while that was not the case with the other client.When I entered the rolls of Bar Council in 2014, there were 4 family courts at Chennai crowded with litigants some carrying toddlers. A few years ago, five other courts were added to deal with matrimonial disputes; nothing much has changed.
When the Family Courts Act, 1984 was enacted, exclusive courts were established in cities housing more than a million population to expedite disputes and doing away with strict rules of evidence. It declared that no party shall be entitled as a matter of right to be represented by a legal practitioner in family courts to prevent interference of procedural technicalities and third-party influence in disputes.
Almost four decades later, it is time to introspect if family courts have achieved their purpose. Today, litigants raising/defending matrimonial disputes must do the same in their names. Apart from essential requirements like attending counselling/mediation, adducing evidence in trial etc., litigants must be present even to cure defects that are identified in their petitions by the registry, to apply for/receive certified copies of documents, pleadings and order copies. The litigants are compelled to do all these as proxies standing next to their advocates by paying them fee.
It does not make sense to subject litigants to any further suffering by requiring them to be present even to receive copies and cure defects exposing them to court scenes, triggering emotions etc., even while engaging advocates. At all stages of the proceedings in which their presence is not facilitating settlement of disputes, litigants only pay a hefty price in terms of their mental peace.
In the alternative, are the litigants empowered to handle matrimonial disputes without any assistance from advocates? If a divorce petition does not conform to the prescribed format with requisite enclosures and court fee, the petition would fail scrutiny at the registry and cannot even be rectified by an average litigant without assistance. After all, can all common men examine and cross examine witnesses in a full-fledged trial?
Though litigants are not entitled as a matter of right to be represented by a legal practitioner, they must necessarily follow strict rules of pleadings and paper work by paying such practitioners. Why should the litigants be subjected to mental trauma by making them revisit/hear facts leading to the disputes repeatedly on every hearing date even when their presence is not required? Why should they forego their work and spend hours in the court on every day of hearing while also paying hefty fee to advocates? Unless efforts are taken to simplify processes, life of litigants from urban centres will remain more miserable than those from towns that do not have family courts as advocates represent them in civil courts in their absence unless they are required for counselling or mediation and finish their cases off with relative expedience if the disputes are not settled amicably.Footnote is a weekly column that discusses issues relating to Tamil Nadu
Nirmalkumar Mohandoss is an advocate at Madras High Court