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Demystifying Family Law

In Episode 3 of the DAKSH podcast, we are joined by Chethana V, a family lawyer practising in Chennai. Family courts are interesting in many aspects and Chethana sets the tone for this insightful discussion on how these courts function.

In the context of family law, the citizens are often overwhelmed by the litigation process and so we discuss how we can improve access to information on family law related disputes. The hold of religion over the framing of family laws, the stigma attached with matrimonial disputes, the status quo of the LGBTQ community as regards family law – all come together in this interview with Chethana.

Show Notes

The opinions expressed here are personal to the individuals appearing in the show anecdotal and not an endorsement. The podcast is not a substitute for legal advice. We highly recommend that you please consult a legal professional before acting on any information heard on the podcast. Listeners discretion is strongly advised.

In the accused Naryan Kamde  865 is charged under Indian Penal Code Section 306 abatement of Sucide.Vikas Dubay is dead he’s been killed after an encounter broke out. This is the big breaking news that’s coming in. Suspense is finally over the Mumbai trial court today gave more with Momhamad Amin Cassab death sentence for murder and waging war against the country 17 months. The Consitutent assembly will frame the Constitution in terms of paragraph three of the resolution.

Sandhaya:  Hi, I’m Sandhya and welcome to the DAKSH podcast. DAKSH is a Bangalore based nonprofit dedicated to judicial reforms and access to justice in India. Through this series, we will explore the law and justice system with the help of our wonderful guests. 

The plurality of India means that personal laws differ according to religion. In the context of family law, the citizens are often overwhelmed by the litigation process. The lack of accessible information for citizens, the stigma attached to discussing matrimonial issues are all formidable challenges that citizens will have to overcome while resolving their family disputes. This episode is a discussion dedicated to demystifying family law. We are joined by Chethana V, who is a family lawyer in Chennai. Chethana explains the various concepts pertaining to family law starting from the family courts and the work they do. We then proceed to discuss the nuance associated with matrimonial issues such as cruelty, custody, and also talk about how the system works differently across various legislations. An important aspect we signpost in this discussion is about how the system is inaccessible to the LGBTQ community. We discussed the way forward to make the family courts more citizen friendly.

Hi, Chethana. So before we go to the family courts and the matters that come there, tell our listeners a little bit about yourself and your experience in the family courts.

Chethana: Sure, I graduated from Gujarat National Law University in 2017, with my least favorite subject being Family Law. I then went into corporate law and I worked in a corporate law firm in Bombay for one year, after which I came back to Chennai, to start litigating. And here, I really liked family courts, and I really liked family law, to my surprise, so I’ve just stuck around here. And it’s been four years since I’ve come back to Chennai. So my work spans across the family courts, trial courts, like magistrate courts also and the Madras High Court.

Sandhya: So just for our listeners, now that we are discussing family courts, can you tell the difference between family courts and other courts, and the kinds of matters that come to family courts, because all of us know that, of course, matrimonial issues come there, but what other kinds of matters come to the family courts?

Chethana: So, family courts are special courts that have been established under the Family Courts Act that deal with issues arising from marriages like divorce, guardianship, legal separation, and it can also deal with property that a couple jointly gets at the time of marriage, right? So these family courts specialize in dealing with these matrimonial issues. And according to the Family Courts Act, they’re established in any town or city where the population is over 1 million. So if you go to a small village today, you probably would not see a family court. So places that don’t have a family court, the cases I tried in either the Subordinate Courts, if it’s a Hindu marriage, or the district courts, if it’s a Christian marriage or a marriage under the Special Marriage Act.

Sandhya: Can you elaborate a little bit about whether all marriages, regardless of religion actually are under the jurisdiction of the family courts? And under which law can a couple belonging to different religions, like register their marriage? And, you know, can you elaborate on these two things a little bit for us?

Chethana: Sure. So when you come to the family courts, yes, every marriage, irrespective of religion, will be subject to the jurisdiction of the Family Court. So I’ll give an example of a Hindu couple married under Hindu law and a couple who have registered their marriage under the Special Marriage Act, this couple belonging to different religions, and a couple who have been married Under the Christian marriage act, or proper Christian marriage, all three of them will be subject to the jurisdiction of family courts. It’s a little interesting when we step outside the jurisdiction of family courts, to those towns that have a population of less than 1 million or don’t have a family court yet. So in these cases, the subordinate court of that district will handle the Hindu Marriage Act cases. And divorces under the Indian Divorce Act, however, will come before the district court, because of how the word “court” is defined under the Hindu Marriage Act and the Indian Divorce Act. If I can give an example from Chennai, because that’s where I’m from, in Chennai city, in the family courts, a divorce under the Indian Divorce Act, which is applicable to Christians and Hindu Marriage Act, both come under the Family Court. But let me move outside Chennai, a little bit towards our airport in the Kanchipuram district. There, the Alandur subordinate court will deal with divorces under the Hindu Marriage Act. But the Kanchipuram District Court only has the jurisdiction to deal with divorces under the Indian Divorce Act. It’s going to be a matter of time before family courts are established in other parts. So until that happens, I think this division and jurisdiction is a very interesting angle that will always exist. And cases under the Guardians and Wards Act is something that can only be filed in the District Court. So that’s also there. That can’t be filed in a subordinate court. Now, with respect to your second question about couples under different religions, what can they register your marriage in? So first, I want to start off by saying matrimonial laws in this country are very religion specific. So a lot of people ask me, I’m born a Hindu, but I identify as an atheist. But if you’re married under Hindu customary laws and traditions, then you will be governed under the Hindu Marriage Act. Tamil Nadu has a very interesting amendment, called the suyamariyathai thirumanam, which is a self respect marriage. What defines a Hindu law is when you finish this saptapadi, the seven steps around the fire, but because of that amendment in Tamil Nadu, you don’t need that. In the presence of witnesses, you can just declare each other as husband and wife or exchange garlands or exchange things that also constitutes a valid Hindu marriage in Tamil Nadu. The Christian marriage act has certain requirements for two people being married. Under the Hindu Marriage Act, both parties need to be Hindus, but in the Christian marriage act it’s sufficient if one party is Christian, for that marriage to be considered a valid Christian marriage, the focus on getting a registration certificate from the church in a Christian marriage is also very important. The Special Marriage Act deals with a marriage between two people from different religions. There’s another interesting element in the act. It deals with two things. Solemnization of a marriage under Special Marriage Act and registering a marriage that has been performed in other forms under the Special Marriage Act. So, with respect to solemnizing a marriage is what we see in all these movies with going away to the registrar’s office and getting married. To do that, however, you need to give a notice intending to marry the other person. This notice will then be put up on notice boards. The process is a little complicated, and not at all friendly to two people from different religions who want to marry because more often than not, this is a marriage that their families and society itself doesn’t respect. So, to my knowledge, you need to display this notice in the jurisdiction of both the partners and not just the office where you intend to get married. And then after that after this notice period is over, and if there is no opposition, you can continue to get married by going to the registrar’s office, and solemnizing your marriage under the Special Marriage Act. Second is interesting, registering a marriage that has been performed in a religious way under the Hindu Marriage Act or under the Christian Marriage Act, or according to Muslim rites and traditions under the Special Marriage Act. So, when you register your marriage under the Special Marriage Act, whatever, your marriage is now going to be governed by the Special Marriage Act. So, interestingly, if you are a Muslim couple, who have been married according to Muslim rites and traditions, and remember, Muslim law is not codified. So you would not have a Muslim marriage Act like you have a Hindu marriage Act or a Christian marriage Act. So, dissolution of a Muslim marriage can only happen through a suit, filed under the Civil Procedure Code read with Mohammedian law. However, if two Muslims register their marriage under the special Marriage Act, they can file a petition before the family courts to dissolve their marriage under the Special Marriage Act, because their marriage, even though it has been solemnized according to Muslim rites and traditions, has now been registered under the Special Marriage Act. So, the Special Marriage Act’s terms and conditions will follow. This is interesting for a number of reasons. And there can also be discrepancies because of it. Like, for example, the separation period for getting a divorce under the Hindu Marriage Act and Special Marriage Act is one year. But for Christian marriages, it is two years. You need to be separate for a period of two years. So these matrimonial laws themselves are not uniform. And especially with things as important as the separation period in time of marriage, they are uniquely different. Special marriage Act has the distinction of having these two separate concepts within it- solemnization of a marriage under Special Marriage Act and registering a marriage performed according to other religious acts under the Special Marriage Act.

Sandhya: we can see that there’s clearly a lot of information that you need to probably filter and understand and process. So, you know, people who are like normal citizens who have to like deal with the family courts or who have to like going to register their marriage under the special Marriage Act. So how do you think like people should go about accessing this information?

Chethana: When you’re going through a matrimonial issue, it’s hard to just call up someone and say, hey, my husband’s been dealing with cruelty for the past five years, how do you think I can get out of this marriage and then suddenly, people clam up. Suddenly they say, no, you why don’t you give marriage another shot, or they’re just very secretively just say that here, this third cousin of this fifth cousin of mine, you know, they’ve come to a divorce, I think, but they’re not in the city. So if you want to call them at the dead of the night when nobody around you is listening, maybe they can guide you with very hush-hush. Also, the lack of access is something you can see very clearly, in many villages and towns and cities. There are people who still believe that if you sign on a stamp paper, saying that your marriage is officially ended, it means you are divorced. You’re very much still married. And in the meanwhile, they would have gone ahead and contracted another marriage which gives rise to more complications in law because now you’re guilty of bigamy and it doesn’t stem from desire to violate the law. It comes from not knowing what the law is and many people actively want this stamp paper idea because going to court is embarrassing. Standing in family court is embarrassing, acknowledging that your marriages fail in front of other people is not what society expects of you. So the fact that that happens, it’s not just because of lack of information, it’s also because of people unwilling to share the information, even if they are privy to it, because of some extremely patriarchal notion to save these marriages. So I think the only way forward to bring more transparency in matrimonial law is more people writing about it, not just in English, but also in vernacular is for the same organizations that conduct workshops on domestic violence and sexual abuse to also include divorce and matrimonial law reliefs as part of their output to women. So they also know. So that getting out of a marriage is, it will never be as easy as entering a marriage but we can, even the odds there if this information is out in the public domain. For women to know that curbing cruelty under the acts is not just physical cruelty, but also verbal abuse, emotional abuse and economic abuse. It’s not just if he hits you, you can get a divorce. No, there are so many other things that involve what cruelty is. Now all this, from what I have seen and interacted with people is not out in the public domain yet. So what I do on my part as a lawyer is when women come to me with these problems and wonder if there is a solution to file an FIR or to file a domestic violence complaint, I also tell them that they have this option of divorce under matrimonial law, what the provision is and what the processes so they have all the options before them to make that decision. 

Sandhya: How do you think that you know when parties want to argue something and bring it under the ambit of cruelty? What kind of evidence does the family court look at? And also how do they generally treat these things?

Chethana: So when we talk about cruelty, it’s important to note that the definition of cruelty varies across different legislations. So for example, under Hindu Marriage Act, it just says, after solemnization of the marriage treated the petitioner with cruelty. The Indian Divorce Act, however, that’s applicable to Christians has an added clause. It says has treated Petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner, that would be harmful or injurious for the petitioner to live with the respondent. So the threshold under the Indian Divorce Act to prove cruelty increases. It’s not just that he has treated you with cruelty, he’s treated you with cruelty to such an extent that you cannot reasonably live with your spouse anymore. So, cruelty itself as according to case law, as laid down by the Supreme Court is extremely subjective in nature. This is something that while the caselaw’s appellate, many people still don’t understand it. There comes the element that you discussed; To what extent will courts consider it. Courts are not going to dismiss a petition immediately because they don’t see any merit in it. After you file a petition, the case in a family court setting will be referred to mediation or counseling. And people are encouraged to settle their disputes as amicably as possible without it becoming a contested matter. Now, Subordinate Courts and district courts are also referring the matter to Lok Adalats, or their own domestic way of ADR. It needn’t be strict mediation or strict counseling, if there’s a Lok Adalat that’s being held there, matrimonial cases, maybe refer that to see if it can be settled. So if mediation or counseling fails, then the respondent will have to file their counter. Now, you may not have strictly called evidence to file along with your case, these are all things that happen between husband and wife in extremely close quarters. Someone’s definition of cruelty can be being subjected to unnatural acts of sex that they don’t want to; it can be constant criticism of the other person inside a room; but no one else is there; it can be flinging food across the dining hall because they are not happy with it. These are things that other people are not witness to, it’s just you and your spouse, and you can’t expect to live a marriage by taking your camera everywhere and recording every single conversation that you’ve had. In fact, some people’s concerns can also be that he is not respecting my privacy. We have CCTV cameras everywhere in the house. And I cannot live in a house like this. But not all people have access to smartphones. Not all people can record conversations, and you may just at that point of time, not be able to record it. Let’s say even with physical abuse, what you can do after you have been hit is have someone take photos of those injuries with the timestamp or hold the day’s newspaper and take photos of those physical injuries to show that on such and such a date, you have a bruise. This would in normal circumstances be quote unquote, perfect evidence. But what if you don’t have that access to do that? And many times if you go to police stations, also, they don’t advise you to go to government hospitals. They say go to private hospitals. So that it’s one less case, you’re not expected to have perfect evidence while filing a case. Yes, it does make your case stronger if you file a case with those photographs, with those video calls, with those emails, with those abusive voice recordings. But it’s okay, even if you don’t. So it’s important that when you want to file a case, and if you don’t have evidence, it’s still okay to do it. Chances are that it can even settle at the time of counseling, chances are it can be proved at the time of trial. You can’t hesitate or you shouldn’t hesitate to file a case because you feel you don’t have enough evidence because at some point in an abusive relationship, and if people feel that their breaking point is there, they need to take that step to file that case. 

Sandhya: How effective do you think this mediation process is? Is it just a mechanism to get the case load off from the main case list? Or is the mediation actually a thoughtful, sensitive process where people are trying to understand because sometimes some things just can’t be mediated as well. So in your like experience, how effective do you think this mediation process is and how it’s been used?

Chethana: I am in complete favor of mediation because I think that this is probably the first time in the history of the matrimonial dispute that a husband and a wife are just facing each other and a third party mediator, not family, not friend, not someone they know. And they’re asked to talk about what has happened to them, in some cases it’s therapeutic, in some cases it is just pure anger. But at the end of the day, what you do have is people putting their issues out there. And in many cases of divorce, it can also be silenced that led to that divorce, right? It can be complete non communication from one party to the other. So here they have to talk about what happened to them and what happened to their case. Of course you’re right. If one party does not want to cooperate, nothing can force them to do mediation. In such cases, mediation has failed even before it has started, and I’m not talking about these cases. I’m talking about cases where people actually want to talk about their issues to their spouse to see if it can be sorted. So let’s say both of them want a divorce, then it’s up to the mediator to now tactfully see how to get that marriage to a mutual consent rather than a contested process that can hurt both of them. So the right mediator, and the counselor is also very important in these situations.

Sandhya: There’s one more thing I actually want to discuss, which is also like a concept. I don’t know how many people will be familiar with it. But there is something called like restitution of conjugal rights. Is there any merit in retaining this? What about the implication it has on like privacy and the agency of the partner against whom this remedy is actually granted?

Chethana: Sorry, I’m laughing. Restitution of conjugal rights is….In my head, restitution of conjugal rights is like this landline phone that nobody uses, very rarely uses, and it’s just going to go defunct at any point of time. So restitution of conjugal rights is a remedy that’s available under personal laws, that basically, it’s your go to the court saying, hey, my spouse has gone away from me. And the court is like, Why? Why did you leave this person without cause? So it’s now up to the other partner to say, No, I left them because I simply cannot bear to be with them anymore. Or it’s for them to say, No, I left him because of my own free will like I don’t see this marriage going anywhere. And then the court decides on whether or not this person has been left for a good reason, or for no reasonable cause. That’s the word in the class. And if the court feels that this spouse has been abandoned, with no reasonable cause, order for restitution of conjugal rights, which is exactly what it sounds, resuming conjugal relations with your spouse under the same roof in the same house is passed. Now, it makes absolutely no sense to pass such an order. In this day and age, it goes against every aspect of agency, of privacy, and of that person’s independence. Yet, this remedy exists. So a lot of people ask me, oh, my God, if this order is passed, does it mean I have to go live with them? The answer is no. Nothing can force you to go live with the person who you don’t want to. Even if an order of restitution of conjugal rights is passed, you will not be forced to go live with the person. The police is not going to come knock on your door saying, “Hey, how come you have not gone back to your spouse’s house after the order’s passed”. Nothing like that. In fact, a ground for divorce is when your spouse has not respected the order of restitution of conjugal rights. So that remedy exists for the person who has spent a lot of time, money and energy to go to court asking for the wife to come back and she doesn’t come back. The law says okay, like she’s not coming back, just go ahead and file for divorce. So, restitution of conjugal rights is a very archaic concept that’s come to us as part of this great British legacy that we have not been able to shake off, even in our personal laws. And if you look at the spate of judgments, the Supreme Court in the case of Joseph Shine v. Union of India that deals with adultery, the Supreme Court found that some things, part of our British legacy, have to be struck down is the doctrine of coverture. So actually how adultery as a criminal penal provision worked in India is that the wife could not file for adultery if a husband is cheating on her. It was only a man who could file a case against another man who was at that point engaged in extramarital relations with his wife. So, this is how adultery worked. It completely stripped the woman of agency and it also made sure she could not complain, even if her husband was the one who was engaging in adultery. So coverture is a term where after marriage, the wife’s existence or entity is absorbed into the husband’s. So she as her own person has no right to make a complaint or raise anything. This doctrine of coverture found itself in the adultery clause in our Indian Penal Code, which the Supreme Court then struck down. So maybe the same thing can happen here. There is a challenge to the restitution of conjugal rights petition that is currently pending. Twenty years back, the Supreme Court found that restitution of conjugal rights is perfectly okay. They have in fact said that  in 1984, in the case of Saroj Rani, the Supreme Court said that restitution of conjugal rights has a social purpose that aids in the preservation of marriage, but this was nearly 30 years back so times have changed and society has changed. And it is high time that this clause also changes and is removed, is my personal opinion. But it is still being used by people. If not anything, to show that they want to save the marriage first is just that their spouse was moved away from them. I do think there’s hope for restitution of conjugal rights also to be viewed as unconstitutional in the future, especially since the Supreme Court has held in a nine judge bench that the right to privacy is a fundamental right, so let’s see what happens.

Sandhya: Yeah, yeah, no, while we are discussing this, you know, a very awkward kind of a provision, that’s the restitution of conjugal rights, which is, it doesn’t really sit well with many things. So I was just thinking, you know, internationally, you have this one ground called either conceivable differences or something I wanted to ask you, where it finds its place in the Indian, like, personal laws?

Chethana: We don’t have retrievable breakdown of marriage, we don’t have conceivable differences, we don’t have that. The closest to that is a divorce by mutual consent. But we don’t have a no-fault divorce concept in India. So if you want to divorce your husband or your partner, it cannot just be because they are annoying, or just because you have fallen out of love with them, which is a very reasonable cause to go for divorce. If you want to divorce and they are not willing for a divorce by mutual consent, then you have to go the contested path. You will have to file under either cruelty or desertion or whatever remedies available to you under personal laws. This is something that is quite draining, when you just want to get out of a marriage, which you feel is not working. But somehow you’re not able to because you’re forced to find a fault in it, even if it doesn’t exist. But that’s just how the law is now.

Sandhya: Now, how will the court determine like who gets custody of the minor child or children? And do they take into account what the child wants at that time, even if it’s a minor child? And once like if a custody order is given, can it be changed? Or is it final? What can you tell us a little bit about what happens in the custody proceedings?

Chethana: Under Indian law, custody and guardianship are two different things. Custody is physically having the child with you. Guardianship is the ability to make decisions for the child. Now under Hindu law, the father is supposed to be the natural guardian of the child. However, after supreme court judgments and case laws, the mother is also recognized as natural guardian of the child. The statute that deals with guardianship and custody, Hindus have their own personal law about it. But the Guardians and wards Act is secular. Now if you want to be appointed as the guardian of a child, you file under this Act. Now what the court looks at is one who has a child been with the longest and who is the child comfortable with. So let’s say that the child has been with a mother for 10 years, you will not have a code that removes a child from the mother’s custody and hands it over. So second, the court will look at what’s best for the welfare of the child. Welfare and best interests are words that will be repeated in cases pertaining to guardianship and custody. How is this welfare and best interest determined? The courts have a set of factors: One, who has been with the child longer as to who’s capable of mentoring the child, who is capable of bearing the cost of education, and everything. But nowadays, courts are also looking at who else is there to look after the child. Grandmothers or the nannies, or do they have the ability to put the child in daycare. So all these are factors that the courts look into while deciding guardianship. However, the process of guardianship itself is going to be, a case is going to be exhausting both physically and mentally. So in the interim, you can ask for visitation rights, to go see the child and to stay in contact with them. An interesting concept that’s emerging is communication rights. Because courts are recognizing that in a globalized world, sometimes the father is in America and the mother is in India. So you can’t expect to fly down every week to see your child. So communication through FaceTime or Skype or video call is just as important. So the father or the mother who is the non custodial parent, is what they are called when the child is with the other parent, to be given communication rights to be able to interact and speak to the child are also things that are coming before courts now. Another very interesting concept is Parental Alienation Syndrome. When one child has been with one parent for a very long time thus completely alienated from the non custodial parent. What can the non custodial parent do to remedy this? Courts are encouraging children to go to child psychiatrists and child therapists and counselors to see what’s happening and how best to rectify the Parental Alienation Syndrome. And courts can also speak to the children to decipher what the child wants. If it’s a five year old or four year old kid, there is not much you can ascertain. But let’s say the child is 10 or 11. Can has a good idea of what’s happening around them and knows where the child is most comfortable with, then the wishes of the child will definitely be a very important factor when the court is considering guardianship and custody.

Sandhya: So,  I want to ask just the one question because I mean most of, I understand and recognize that we’ve had this discussion very very much centered on heteronormative people so what I want to ask, what is the like can individuals in a living relationship, irrespective of their sexuality or LGBTQ couples, can they approach the family court for anything, let alone like separation or other matters, how does the court treat them or they are really completely out of the process. Because that’s also quite a scary thing I would say because you’re a citizen but you have no access to this right and now it’s just a very very scary state of affairs.

Chethana: So, the law currently only recognizes marriage between a man and a woman. That is unfortunately where the law stands right now, all personal laws. I think a petition is pending to make marriages between same-sex couples legal under the special Marriage Act that however is still pending and interestingly, however, for the LGBTQ community, there have been recent judgments of the Madras high court. For example, where it was held that a marriage between a transgender woman and a man is valid under the Hindu Marriage Act and can be registered also. So it’s a judgment by Justice G.R Swaminathan where the Hindu Marriage Act doesn’t say man and woman. It says bride and bridegroom. Those are the terms that are used so he says that under the NALSA judgment, your self-identified gender is that of a woman you are a woman hence you do fit the definition of bride under the Hindu Marriage Act. So, this was a case that came up before the court where the register office refuse to register a marriage between a transgender woman and a man so I’ve got this judgment held that no if you self-identify as a woman and you marry a man, your marriage is still valid under the Hindu Marriage Act and thus can be registered. So, I understand that this is a very small victory but it’s a victory nonetheless so, marriage between trans couples can now also be registered and it’s a valid marriage and then a lot of people have asked me but how do I get this marriage registered and then the answer to that I say is no I because I’m in Chennai I say that no you have the remedy of suyamariyathai thirumanam even if you don’t want to go to the full-fledged marriage so in the presence of witnesses if you choose to marry each other following whatever is provided under the Hindu Marriage Act, it is still a valid recognized marriage. I don’t know if other states are also recognizing this but it’s a Madras High Court judgment so I think if other people in other states do want to try it they should be able to. So, marriage between two people professing the same gender identity is not yet recognized in Indian law, not even under special Marriage Act. You can choose to live-in with your partner but the remedies that you have under law if that live-in relationship is not very successful or if you are subjected to abuse in that is still definitely something that needs a legislature for we don’t yet have it. My advice to live-in couples would be to get insurance together to open a bank account together. I think slowly private players are allowing people to open joint bank accounts. It is a much more difficult process than it is if you are to waltz in as a married couple and my complete sympathies with the community for that but right now there is not much you can do but you can choose to solidify your relationship by opening a joint account by purchasing Insurance together,by maybe putting your names together on the lease State or the rent agreement or a purchase agreement. But if let’s say that this relationship fails or if this relationship breaks down and if let’s say you have jointly purchased property together you may not be able to go to the family court to seek relief because

your marriage is not yet or your union is not yet recognized. You will have to approach a city civil court with respect to separation of property or something like that. So, with respect to matrimonial law remedies, there is none at the moment. What about the domestic violence act? So, under the Domestic Violence Act, a domestic relationship is defined as a marriage or in the nature of marriage and the Supreme Court has defined “in the nature of marriage” to mean a relationship which can potentially end in a marriage which unfortunately, today same-sex couples do not have. This narrow definition also not only affects them, it also affects women who are living in with someone who’s already married because that person cannot marry the person living with them since they’re already married. Their union cannot end in what is legally recognized as marriage. So, remedies under the Domestic Violence Act also are currently out of the picture now.

Sandhya: Yeah, so which pretty much means what I said right so they’re really out of the system in so many ways and that’s a really I think not something that we can be proud of because you know we have to try and give the same rights to all the citizens irrespective of gender and sexual orientations.

Chethana: Yeah, that you can do by starting to amend the Domestic Violence Act a bit. If you make police stations more accessible, that itself will be a huge relief to the community who currently face a lot of harassment and discrimination from the police authorities themselves which make it very difficult to give complaints especially against their own partners.

Sandhya: I guess it’s a lot to do with sensitization as well. When you’re going to make something accessible, it’s also about sensitizing the system and the people who are all there in the system including like the justice system, the police force. 

Chethana: It’s slowly happening. The judgment of the Madras High Court that recently come up to say that police personnel have to be sensitized to close a missing person complaint that sometimes parents of the LGBTQ community file against them in order to harass them to make them come home when they have left an abusive home environment is to be closed upon receipt from that person that no, the reason I left home is because of this. So, police have been instructed to do all that. Whether they’re carrying it out or not is a different story and I have used it to good effect in one case personally. We had a police complaint, a missing person complaint closed after a return representation from one person. Of course, I had to go to the High Court twice to one, seek police protection and second, to quash that complaint under 482 CrPC, but at the end of the day, the police station themselves closed the complaint and gave the action dropped report to the High Court. This was also a police station deep south in a small town who probably would not have had access to what the law has said or what the High Court has said as quickly as a police station in our Metro City so I think changes within these police stations also is going to be slow but it is happening.

Sandhya: Actually, it’s a good point you make because when we talk about information access, it’s not just the citizens you know it’s sometimes people in the system also face this little gap. We often forget that. We just assume everybody knows everything. It’s not just the citizens who are not aware but pretty much when access is a very you know it’s a very different thing it affects everybody.

Chethana: For example, the list and phone numbers of the protection offices in Tamil Nadu is published in the social welfare department’s website but how many people you know can go access the social Department welfare, download that PDF, then call the number on it. 

Sandhya: So, I was thinking is there any scope you know, systemically speaking in the Family Court proceedings? Is there scope to tweak the system? For example, like just to do away with this presence of the couple in every single hearing because I think people don’t see the repercussions sometimes. You know somebody could be losing like a work day because they come every month for a hearing. If it’s a contested divorce, it goes on for 10 years and what am I supposed to do like what job can I possibly hold if I have to miss a day like every month and then keep a track of this. I find it a little concerning that sometimes there is a way to tweak this system. Do you think there is any scope to make the process a little citizen friendly?

Chethana: See, when you look at people having to come to court every day, I agree with you, it can be a problem for many people but let’s say in child custody cases that’s the only time in a month that the other parent gets, non-custodial parent gets to see the child because of a court order to meet the child in the Family Care Center or in maintenance cases when interim maintenance has been awarded let’s say five thousand or seven thousand rupees the husband actually gives that money in cash to wife in the court in front of the judge so for me, family courts are not just having to come to court everyday. Because you have a case, it’s quite literally you trying to finish what’s the most pressing matter of your life fast in court and a lot happens in the court premises between the two parties that may eventually help the matter setting. But I agree with you that it can be very cumbersome especially for single working women and what would they do like I’ve had to speak to employers on the phone saying no she has a family court case, she has to come. It can be very difficult so I think it starts by making the process easier. Maybe, let’s say issuing a litigant pass so that they don’t have to wait in long lines at the family queue centers to actually having proper seating in courts. I find many courts are missing proper seating ventilation for the parties or even dividing Family Court proceeding into time slots so you can come at that time because you have 10:30 to 4:30 or 5 o’clock right so you don’t have to wait from the morning to for your case to be called and get over. Maybe, dividing those cases in time slots will also help. Family Courts are right now also accepting power agent petitions to represent a party. So let’s say that if you cannot go to court often but if you’re retired father or mother can. I mean of course the privilege that comes with having a supportive family is not something everybody has and that’s I completely agree with you about that but family courts are also accepting power agent petitions. There are small small changes but yes I think the part in-persons compulsory can maybe be done away with and them to be present in court only when called would help a lot of people but I don’t see that happening unless as an amendment to the Family Court Act itself. Because of COVID, so many people have lost monthly maintenance coming to them because their cases are getting adjourned and through video conferencing there’s not much you can do but I do think because of video conferencing now family courts are forced to find another method to speak to the parties directly so maybe that will go a long way in changing the party in-person thing also. Who knows, we’ll have to see. 

Sandhya: That was my conversation with Chethana V and you’ve been listening to the DAKSH podcast. This episode was hosted by me, Sandhya. If you like the show don’t forget to follow or subscribe to us wherever you listen to your podcasts so that you don’t miss an episode. We would love to hear from you so do share your feedback either by dropping us a review or rating  the podcast at podcast app ‘I love you too’. Talk about it on social media. We are using the hashtag DAKSH podcast. It really helps get the word out there. Most of all, if you found some useful information that might help a friend or family member, share the episode with them. A special thank you to our production team at ‘Made in India’, our Production Head and editor Joshua Thomas, mixing and mastering Karthik Kulkarni and project supervisor Sean Phantom. If you want to find out more about this topic, please have a look at the reading list in the episode description and to get in touch, visit our website dakshindia.org that’s D-a-k-s-h india.org. Thank you for listening.



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