Divorce and Restitution of Conjugal Rights (RCRts) are the major matrimonial disputes between husband and wife.
The twin issues of Divorce and RCRts are personalised-emotive relations between the husband and the wife that a court adjudicating within the four corners of a law would find it beyond its intellectual and legal reach to resolve the dispute because such disputes revolve around tender emotions exclusive to the spouses. Hence any decision must be their own decision.
The Law Commission too has recommended that in dealing with the family disputes courts must adopt an “approach radically different from that adopted in ordinary civil proceedings” and amicably settle the matters through conciliation rather than adjudicate on the same”. Yet under our legal system, it is the adjudication process which dominates and counselling is complied just as a statutory requirement. Matrimonial dispute resolution must ensure that the young minds channel their energies in productive activities rather than spend their potential in manipulating to prove each other wrong. The judges and lawyers too spend their time over non-adjudicable matters in the face of 4.7 crores of pending cases; If spent in clearing off adjudicable disputes it would enhance the faith in the judicial system..
A New Approach To Counselling:
Every redressal of dispute between husband and wife must commence with a “Petition For Reconciliation Through State-Counselling” and not a petition for divorce or RCRts.
It must be mandatory to appoint only trained psychiatrists or psychologists or an MSW or persons with a Certificate in Couple and Family Therapy from a reputed university with a minimum of 2 years experience as Counsellors followed by a 3 month training on laws pertaining to matrimonial disputes in India after appointment. They must be Government servants and not be appointed by courts on adhoc basis to ensure a steady income and full-time dedication to the awesome task of making the spouses open up to the alternatives before them, help them assess the damage caused, generate a willingness to commit to restoration of marriage if possible, or else to move on if reconciliation fails. No practising advocate or a judge should be eligible for this task as is the practice today to ensure that counselling is not reduced to a part-time job or just another income-augmenting assignment.
Time-bound Conciliation Process – a mandatory requirement:
- Spouses must be counselled for a period of three months, from the date of first sitting to save the marriage. Their family members too could be involved if necessary. This should be followed by a three months of cooling-off period to enable them to introspect and ponder over the advices tendered without any prodding by the counsellors as at that age they are the best judge of their interests and they must decide whether to join each other or separate graciously
- At the end of the cooling off period, if they decide to continue the marriage, well and good; but if either of them insist on separating, the case be sent to a Panel of two qualified Counsellors appointed by the Government which makes one last attempt at counselling the spouses for not more than three more months. And if any one of the spouses do not agree to keep the marriage going- it means that the marriage has irretrievably broken down with no possibilities of patch-up and the marriage must be dissolved within one month. Thus when marriage has become an empty shell, “divorce must be seen as a solution and not a taboo” and not be made an endless blame-game with possibilities of manipulation. Thus at the end of ten months a decision must be finalised and the parties facilitated to restart their lives. Even before State-level counseling there would invariably be informal counseling. Under a survey, before approaching FCC (Family Counselling Centre) for help- 73.9% clients sought intervention from their families and 22.6% from the community. Thus, everything possible to save the marriage would have been done by all concerned. If the matter is still not sorted out, let there be separation with grace and when life is still worth living for the spouses. The Supreme Court has rightly held that situations causing misery should not be allowed to continue indefinitely, and dissolution of a marriage that could not be salvaged is in the interest of all concerned.
Adjudication is ineffective and does not stand the test of law
A decree for RCRts cannot be executed by compelling the spouses to cohabit. Non compliance with a decree for RCRts for one year is itself a ground for divorce under section 13A(ii) of the Hindu Marriage Act. So of what use is a decree which cannot be executed for its core relief of cohabitation.
Any decree compelling an unwilling spouse to cohabit with the other violates fundamental right to personal liberty and right to privacy under Art 21. Right to privacy includes right of personal intimacies, marriage and procreation. It also includes sovereignty over one’s own body.
In addition there is no ‘Compelling State-Interest’ in directing an unwilling spouse to cohabit with the other by way of Restitution granted or divorce not granted. Even under section 9 of the Family Courts Act- the court has to persuade the parties to arrive at a settlement ‘consistent with the nature and circumstances of the case’. If the nature of the case needs a dissolution of the marriage as a last resort – so be it.
In conclusion– time bound counselling and not adjudication is the solution to resolve matrimonial disputes
Article by Dr. Veena Madhav Tonapi, B.Sc.(Hons); LL.M.; former Prin. JSS Sakri Law College Hubli. Ph. No. 9980588236; 9980163164
