Procedural justice matters

The object of the Hindu Marriage Act was to amend and codify the law relating to marriage amongst Hindus. The Act provides for remedies for matrimonial disputes. The issues taken up for adjudication may be sensitive and personal. Keeping matrimonial disputes pending for prolonged periods is not an acceptable norm of procedural justice. Uncertainty may cause psychological disturbances to many others related to the disputing parties. These disputes need timely adjudication and finality at the earliest.

All matrimonial cases may not pass through the same process. In the process of getting the benefit of substantive rights conferred under the Act, the law providing for the procedure to be adopted cannot be overlooked. The Hindu Marriage Act has a balanced combination of substantive and procedural law. The procedure to be followed is envisaged in Chapter V of the Act, which relates to jurisdiction and procedure.

Special provisions

Section 21B of the Hindu Marriage Act reads: Special provision relating to trial and disposal of petitions under the Act: (1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded; (2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent; (3) Every appeal under this Act shall be heard as expeditiously as possible and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

Notwithstanding the procedure laid down and the time limit prescribed under section 21B of the Act, the courts of the first instance/Family Courts and the appellate courts are unable to comply with the same. Strict compliance with the provisions of section 21B may result in a majority of the matrimonial cases getting disposed of in less than a year.

By no stretch of imagination can ‘so far as is practicable’ and ‘as expeditiously as possible’ be interpreted to mean that the petitions and appeal under the Act can be disposed of like any other petition and appeal under any other statute wherein no specific time is prescribed for the disposal.

There may be other matrimonial cases that are not covered under the provisions of the Hindu Marriage Act. However, Karnataka (Case Flow Management in Subordinate Courts) Rules 2005, provides for speedy relief in matrimonial disputes.

The Karnataka High Court made the rules applicable to all suits and civil proceedings before the sub-ordinate civil courts and tribunals under the control of the high court by virtue of powers conferred under sections 89, 122 and 126 of Code of Civil Procedure and with the prior approval of the state government. Rule 3 of the said rules categorizes suits and proceedings into Track I, II, III and IV. Matters relating to maintenance and child custody, appointment of guardian and wards, visiting rights are covered under Track I, and divorce cases under Track II.

Rule (2) provides that the presiding officer shall endeavour to dispose of the cases in Track I within nine months, cases in track II within 12 months from the date of appearance or deemed appearance of defendant-respondent.

There is also a note that the time prescribed as above is the maximum time limit and for valid reasons the presiding officer can dispose of the case early at the request of the parties, irrespective of the track norms prescribed.

Thus, the prescribed time limit cannot extend the maximum limit specifically provided under three different tracks, and it is only early disposal which is permissible.

Rule 5 and 6 of Karnataka Rules 2005 provide methodology for calling of cases and regarding interlocutory application and interim order. According to the rules, the interlocutory applications are to be disposed of within 30 days from the date of appearance of the other side.

Notwithstanding section 21(B) of The Hindu Marriage Act and specific rules laid down as in Karnataka Rules 2005, the litigants are unable to get timely relief either on interlocutory applications or on merits.

The increasing number of matrimonial cases, fewer courts, lack of sufficient number of judges, support staff, poor infrastructure, etc., cannot be justifying factors to ignore the statutory provisions. Once a law is codified, the unwritten rules of practice cannot be adopted unless such modifications are permitted by parliament.

All this leads us to some key questions. Who is to be blamed for non-compliance of provisions of section 21B and Karnataka Rules 2005? What can be done so that the courts that must compel litigants to obedience to law are not indirectly compelled to ignore the same? Is it not high time for the State to take necessary steps to avoid failure on its part in enabling the courts to provide timely justice?

It is extremely necessary that the application of ‘precautionary principle’ or ‘precautionary approach’ is made a statutory requirement before enacting laws in given areas. Effect to any Act should be given only after the respective state government has the system in place to do complete justice.

(The writer is a senior advocate in the Karnataka High Court)