Thursday, August 05, 2010

Reforms in Family Law Part 1

This post is on a Legal topic. there is going to be a series of these posts. I will explain about one topic at a time so that it is easy for you to understand. There are total eleven such reforms and I am planning to cover them one at a time in each post. It is going to be useful to many. And for the rest, you know what to do right?

Judicial reforms are the need of the Day in the Country. And the Reforms in the Family courts are even more urgent. A person can continue living a normal life even if faced with criminal matter or been victim of crime in any fashion be it robbery or assault. However when faced with marital breakdown a persons life is put on hold till the verdict. Hence it is imperative that Marital Problem is given the highest priority and overhauling of system is important.

Judicial reforms is not about tinkering with a few process it needs overhaul in following direction

Change of Laws 
There are two many laws in the country against the husband in civil, criminal and quasi criminal arena which do not have standard procedures of normal laws applied to them examples are the Domestic Violence Act and the Section 498a. There are also multifarious laws for a same relief. There are five laws on maintenance for standard of living from a husband. This needs to change and complete gender equity, equality and fairness be brought about. The laws need to be harmonized and equalized by gender.

Change of Procedures, practices, presumptions and guidelines 
There are multiple procedures which tend to become procedural harassment of the husband and the family. This should change. The heavy procedure need to be lightened and made more litigant friendly. A key example is on handling cases where in a husband (wife) is from out of station. In such a case the standard practice should be to provide two or three continuous dates so that the out of station person can take leave etc. It has become a procedure for the cases to be transferred to the place of wife's liking. This should change and the convenience of a working person should be taken into consideration as there is far more stakeholders who need to be aligned for working spouse. To not allow more then 2 interim application would be useful guideline. There is a legal and social presumption which is best described by the Victim Women Criminal Men Syndrome which needs to change and it's time for the entire system to get out of this trap.

Change in the current Transparency on dates and estimated dates on the court cases.

In India getting a reservation or attending the courts at a short notice puts a burden on litigants and litigants are clearly interested in knowing when will I get my decision .It is imperative that within 2 months the courts provide a schedule of dates and activity that will be conducted so that the litigant is clearly aware of the stages and phases and prepare accordingly. The judiciary can very take the help of project management expertise of the Ex-litigants for this matter. SIFF (Save Indian Family Foundation) is willing to provide this expertise.

USE of the latest Technology
Involve litigants in defining the requirements of the computerization process.

Change in Attitude

The judiciary should not expect to be a great sermons speaking from Ivory tower. They should clearly be aware of the difference in Matrimonial relief like divorce or child custody. The shift in attitude for family related cases are more in the nature of I am here to resolve the disputes and allow the parties to live a happy life. Currently there is an attitude that is felt that one should use laws, procedure, guidelines, practices and spurious arguments everything against a husband seeking relief. 
Part two of the post will be published soon. Remind me please if I forget :P


  1. I know only what I have read in newspapers. And somehow I feel that its high time that family laws are revised and taken a second look now.

    Sometimes, the law seems so against husband. Few times, the procedure seems so tedious and lengthy. Excellent point made when you said make use of technology.

    There need not be physical presence of everyone at the court. Even conservative people tend to get divorce by quoting "talaq" 3 times

    All said and done, 75% problems solved if family cases are resolved out of court.

  2. High time they changed laws. There is too much duplicity and loopholes. Civil laws like marriage are further hounded by religious clauses. But why, what ever the religion be, they are just husband and wife and mother and father to kids. Hope they make a uniform law soon.

    Loooking forward to next post.

  3. Very good post ,Neha. You take up pertinent issues. The legal system should not be too cumbersome. But I would be wary to make women the criminals and men victims even though it is true in many cases, it still does not change the fact that the overwhelming number of victims of domestic violence are women.

    Looking for ward to the nest post:-)

  4. wowo thats some info.. the only thing i would say is Its ok to have such reforms BUT the one reform we need at the moment is SPEEDY trial .. TILL that happens all these reforms are a waste of TIME..

    I am sorry if you feel i am talking crap here .. but what use are these reforms if it takes a decade to come to a judgement.. then even after that there is a appeal

    The REFORM should be .. ONE CASE taken up and finished It should be the responsibiltiy of the lawyers and other staff to have there facts right..

    I had gone for a JURY service here , there was a murder and attempt to murder case Both taken against one man.. and it lasted 8 working days .. From START to FINISH.. I know its a far fetched thing but that is what the REFORM shud be..

    It was shceduled for 5 days , the judge was to go on holiday but HE had to cancel his holidays as the case stretched .. this will never happen in india

    Now no ways thats going to be 8 days in india.. it takes 10years +..

    so these refroms will be brought in but my question is what use if there is a 70year old person still running pillar to post to get his/her dues..

    Just my thoughts ... its time people are pushed the reforms brought in for this .. the rest will follow i guess ..

  5. 498A is sheer overdose of inequality, this time tilting against men. The scope for abuse is so vast that it actually ends up propelling domestic abuse against men. Gender neutrality rather than gender equality is what our laws need.

    The changing psycho-social structure requires amendments like the recent 'irretrievable breakdown of marriage' as ground for divorce.

    Will you be dealing with the Prevention of Offences against Child Bill as part of this series?

    Looking forward to reading your posts.

  6. Cool!! That's insightful.
    The changes that should be there in the system, makes sense.
    Hope speedy justice happens too!

  7. Neha,good, a very informative post.Just foe my information,even if we amend the law or constitute a new one, do we always follow the British laws?
    I had an opportunity of looking at the family law of Singapore.You might like to read it, if not already done.
    I look forward to more posts on this subject.

  8. ya as everyone here has said there is dire need for reforms..oh god..y r v forced to put up with stupid politicians for everything...india need not become a military superpower, v can turn economic superpower and for that v need reforms at a faster pace..hey..what were u talking abt? legal aspects? shucks..where have i gone??

  9. @ Jil, I have not yet decided whether to include that bill or not, as it goes into too much of legalities..I will however be covering restriction on child marriage and adoption..there are going to be 11 more posts around this topic of reforms :P

  10. yes we need to change and reform every Indian law.
    Thanks you can mail me the paper which you mentioned.
    the history and evolution of Intellectual Property Rights.

  11. Lama and I were talking about another post which published the number of pending cases in Indian Courts(which must be growing by the minute)! Without speedy trial, how can we hope for justice. And like someone pointed out, 'gender, religion, caste, creed'-neutrality needs to be considered while framing/reforming laws.

    Thanks for the very informative post. Hope to read the others too in this sequence.

  12. Reformation is the need of the hour.. We need to reform our legal system as the society is changing and we need to be adept to handle the changing demographics and interests of the citizens on a whole.. :)

    Wonderful piece

  13. Nice reforms mentioned here Neha. If possible can u write a post on RTI and PIL coz I wish to learn more about it.

  14. A good initiative, Neha!

    For others interest, you may want to look at "Women & Law in India" by Flavia Agnes (co-author). It has been published by OUP.

  15. Congrats on the Spicy Saturday Pick. :)


  16. I agree with you. I wish I had your blogging style.