Read Time: 13 minutes

“The (Indian) Family Courts of today have not been able to achieve the goal for which they were set up. We are seeing that more and more children are being used a pivot/tool to settle matrimonial disputes rather than welfare of child being paramount. So there are definitely huge issues that needs to be addressed," asserted Additional Solicitor General, Adv. Aishwarya Bhati in a discussion series organised by Bamboo Tree Children's Foundation on the topic, “Transforming Indian Family Court System.”

In the NGOs 7^th episode, the host Dr Rakesh Kapur, Founder BambooTree Children's Foundation along with Jatin Katira, Founder, Child Rights Foundation focused largely on the issue that rising parental separation rates/divorce rates in India have put the focus squarely on Indian Family Court System, especially its role in protecting the rights of children of separated parents. Further, a detailed online survey of parents and legal professionals conducted by the foundation revealed a failed and dysfunctional family court system in need of urgent reforms.

The foundation as part of their endeavor to initiate a conversation about children of separated parents, have been inviting legal and mental health professionals from across the world to form a consensus around reforms in the family courts system that would truly further the best interests and welfare of children. Advocate Aishwarya Bhati, Additional Solicitor General of India was the speaker for present episode.

Whether Indian Family Court system has failed to protect the rights of children, if reform needed:

ASG Bhati started with that she would definitely agree that the Indian family courts are in need of drastic reforms. The Family Courts Act was introduced on 1954. India is a country where as a society we are going through a movement or a journey of catharsis. So what has helped so far and what are the drawbacks?

“Obviously, family court is a place where you try to bury your matrimonial disputes. It’s a family in distress that comes to the family court,” said ASG Bhati

Further referring to a saying in the Family law she stated, “so long there is love between the parties they are not governed by any law; as soon as the love goes out of the door, law comes in from the window.”

According to her, the whole mechanism was provided so that the parties were taken out of the traditional court mechanism and a child/family friendly atmosphere was made available to resolve the matrimonial dispute.

“Like it takes a village to raise a child, similarly it will take the whole country to really sort out these issues. It’s going to take each one of us,” opined ASG Bhati.

Whether separate division in High Court for family matters be established:

ASG Bhati said that judges are legally trained to judge issues and if they need assistance they get repots, it’s not like you need to be an expert of that area.

“I mean what are we, all judges, all lawyers ultimately they are only specialist in area of law…instead we are just law graduates and maybe some of us are post graduates etc. but training of law is the important thing. I don’t think you need an expert bench at the level of constitutional court.”

"Judges actually show sensitivity that goes far beyond their requirement of their office. They call them (children) into the chamber and talk to them. Courts is one aspect, but the main problem is with the society," she added while talking about cases involing custody of child.

On failure of judiciary to settle matrimonial disputes despite PILs being filed in large numbers:

ASG Bhati mentioned that, “PILs are assigned to benches for admission hearing first and only if the bench thinks that the cause is required to be taken further the notices are issues. The pendency of matters is just PILs and family court matters. That is a plague which is really infesting our entire judiciary delivery system.”

She further added, “certainly Indian constitution court specially the Supreme Court they are among the most hard-pressed and hardworking judges in the world. We are a huge country, a developing country, our resources are stretched, and our infrastructure need to expansion.”

According to her, the courts have not failed but the sheer number (population wise) that we are and that fact we are still struggling on infrastructure at all end including judicial infrastructure was the major reason.

She further opined that, the family court system are not just for children but are really to deal with battered families.

“We are not a country where traditionally the husband and the wife would come with fair facts before the courts. When one looks at matrimonial ads, every boy earns a handsome salary but when it comes to maintenance every boy becomes a pauper or he doesn’t want to pay a penny. That is the practical experience we have in courts.”

As per her, "another reason why child is used as pivot is becauxe they feel the need to get an advantage by holding on to whatever they have or whoever has the custody/possession of the child holds on to child as they can till final orders."

However, its the interim orders that becomes problematic in such cases, she asserted. "Child is growing every month, every year, so time is of the essence here but the problem is that our system does not have the bandwith really deal with the alacrity that a matter llike this deserves. It will be naive to look at it with one perspective or prism when whole ocene is having problem."

Parting words:

Lastly, while concluding the whole session ASG Bhati stated that, "I think a protocol/guideline should be coming from Supreme Court or maybe the government which is mandated...it will have to come from SC otherwise its an amendment in law, i think that should be brought in."

She further added that, welfare of a child means having access to both parents as parents.While custody may remain with one, the other parent just cant be a visitor in the life of the child.

On the other aspect of provding maintenance she said that, if interim orders are passed on maintenance, custody or visitation etc together, then they are likely to soothe the defrayed feathers a lot and are likely to have lasting impact.