Dealing with divorce can be emotionally exhausting in itself. But as Sameer Yasir reports, in Kashmir, the judicial system ensures couples remain entangled in legal battles for decades.
A verbal fight between two highly educated parents of two teenage daughters, of downtown Srinagar ended with the husband sending a divorce notice to his wife in 2002. That was the last time their daughters saw them together. Ever since that October, the husband and wife have been making their rounds of Srinagar courts.
The life of Fareeda Khan changed forever when she was sent a divorce notice by her husband in 2002. Both husband and wife are government officers. One posted in Islamabad and other in Srinagar. For divorce, her husband had only one argument- that she had an illicit relationship with one of her colleagues. Fareeda had tried everything possible to save the marriage but it didn’t work.
At first, it was just verbal fights and abuses between the two for some months. When pushed to the wall, Fareeda left her home with her two daughters never to return. What followed was something which she would have never imagined- divorce papers that her husband sent her.
Fareeda refused to sign the divorce papers. She says that although she was working as a government officer, she had to take care of the daughters, which according to her she could not have managed alone. So she filed for the maintenance in the sub district court at Srinagar. After almost two years of waiting, as interim maintenance, the judge asked her husband to pay 15 percent of his earnings. But the case could never reach an amicable solution for twelve years. Both husband and wife still continue to make rounds of the court.
Khan’s two daughters are now in college. The continuous court rounds have made them bitter against their father, and the judicial system. “Our mother used to take us to court, we were young, then it became a routine. We saw our parents abusing each other. We wish that we were never born,” Fozia, the elder daughter told Kashmir life.
Khan’s case has been deferred most of the times in these twelve years because of one reason or the other. Either the judge was transferred or a new judge would try to reunite the estranged couple. But the last decade has been a tiring battle. A battle in which both of them are tired, says a lawyer, but because of their ego, no one admits it.
Unfortunately, Kashmir’s justice system works at a snail’s pace. Even if one party wants a divorce, the system simply doesn’t allow it to happen. The case is dragged even on small things, as was the case with the Khans. A husband may divorce his wife by repudiating the marriage without giving any reason. Fareeda Khan says this happened to her.
“He told me that I will drag you to court without any reason. I tried to explain but he didn’t listen to me. Now we have fought enough, there is no need for us to live in one place. I can’t even think of that. The twelve years have made me bitter enough,” she says.
Dispensing justice at snail’s pace has destroyed thousands of lives in Kashmir. Like the Khans, there are several other cases which have been dragged in the courts for decades.
A former judge attributes this problem to Section 488 which deals with the maintenance issue. Apart from it, he says, in these cases the wife always claims she has not taken all the jewelry or other items which she brought with her at the time of marriage. So the case lingers on. But the problem also lies with some sections of the law which can be easily manipulated, and a judge has to go by the argument presented in the courts. But most of times, “We try to find an amicable solution for the problem,” he says.
Presently more than 7310 cases of domestic discord and maintenance disputes are pending in courts across the state. “The matrimonial cases pending disposal in various courts is 2448. Similarly 4862 maintenance cases are pending disposal before various courts in the State,” Law and Parliamentary Affairs Minister Ali Mohammad Sagar told Assembly in a written reply recently.
The government doesn’t feel the need for setting a special court for speedy trials for these cases. However the matter is said to be under the consideration of the High Court. The already overburdened judiciary is having a tough time in dispensing justice to lakhs of cases which are already in different courts. Additionally, there is an increase in the number of cases of matrimonial discord. The unavailability of judges and lack of family courts have only made things worse.
Ever since the conflict in the Kashmir valley began, there has been an increase in the pendency of marital discords cases. Lawyers say because the situation was not stable, majority of the cases would be delayed. It is very important to understand how conflict has affected the judiciary. “Even the accused in rape cases would not turn up.
The strikes and curfews had paralyzed the judicial system in valley,” says Parvez Imroz a noted human rights lawyer. He adds that the smooth functioning of the judiciary only started in the late 2005, when the situation eased a bit. Most of the times, priority was given to cases which demanded attention like cases of human rights and government. So cases of marital discords were relegated to the back burner.
There is a change in perception with regards to divorce. “Earlier divorce was considered to be a taboo in Kashmiri society but now things are changing,” said practicing lawyer Altaf Ahmad.
The justice system can perhaps be blamed for the growing number of pending marital discord cases with courts already overburdened with a huge backlog. Because of the backlog, people like Fatima Begum have suffered. Fatima lives in a tin shed at Awantipora. In 1996, she had gone to her parents’ house for three days. A verbal argument over her daughter led to a physical fight at home. Her husband Ghulam Qadir Lone lives in his two storied house in a nearby place. Fatima says, “He divorced me within days.”
A court case was filed in which she had claimed maintenance in 1998 after two years of fights. Four of her kids got married and they now have children and she still visits the courts. Fatima says, when her parents died her bothers’ wives disowned her and she started living in this makeshift house.
“I have stopped going to court. Whatever I had I have already spent on lawyers. When there was no money left I stopped going to court. Because no one would argue for me,” she told Kashmir Life.
Even the lawyers want these cases to be lingering for ages, because then they become a permanent source of income for them, says a leading lawyer wishing not to be named. There are more than a hundred lawyers presently dealing with the cases of matrimonial discord in Srinagar alone.
On the other hand in main land India, the debate changes. Sharing of matrimonial property, in fact, is one of the divorce-related clauses proposed in the Marriage Laws (Amendment) Bill, 2010, which seeks to amend parts of the Hindu Marriage Act and the Special Marriage Act. The bill was cleared by cabinet on March 23 and, if passed by Parliament, could change divorce litigation. ‘Irretrievable breakdown of marriage’ could become a new ground for divorce, women could get matrimonial property rights and the six-month cooling period before a divorce would no longer be mandatory in cases of mutual consent.
When the bill was first presented to the Rajya Sabha in 2010, it chiefly sought to introduce ‘irretrievable breakdown of marriage’ as a new ground for divorce. In this ‘no-fault’ clause, either spouse can seek a divorce after three years of separation without having to prove the failure of the marriage in court.
The Government of India has taken the issue of matrimonial discord very seriously. But the Jammu and Kashmir government is still trying to figure out whether to have family courts or not.
Mehbooba Mufti says Kashmir is a very different society as compared to rest of India in every aspect. The rise in divorce might be attributed to the economic empowerment of women. But it is still an issue which is considered as a last option.
“The government should initiate a process wherein speedy justice should be made possible for the parties. If people don’t want to live together let them not live together. The institution of marriage can’t be degraded if people don’t want to live together,” she said.
On the other hand, the government says they will try to do everything in their hands to make dispensing justice possible in these cases.
“Although we still don’t have a family court, the High Court is considering it. Very soon you might see a drastic change in the laws also,” Law Minister Ali Mohammad Sagar told Kashmir Life.
