From Guest Blogger, Subham Jain in Delhi, India
Implications of Lockdown on Family Law Cases in Indian Jurisdiction: Present & Future
While many are enjoying the time being spent with the families, there are many who are facing difficulty in keeping intact their marital cord. There is a tremendous spike in the calls to family law lawyers where their clients are waiting for the courts to open to file divorce. Being forced to live together at these times, even small disagreements are turning out to be a major issue and further worsening existing disputes.
Rise in Domestic Violence and measures taken
Since the initiation of lockdown, instances of domestic violence have increased. Couples are finding it difficult to cope with the increasing mental health issues. All this is happening when the sale of liquor is prohibited during lockdown, which is considered as intimate partner of domestic violence. Women are finding it difficult to report cases considering the prohibition of movement. The National Commission of Women (NCW) reported an almost 100% increase in instances of domestic violence during the lockdown as more and more people are staying at home or working from home. An analysis of calls and complaints received by the NCW for 25 days between March 23 and April 16 showed 239 incidents, compared to 123 received during the previous 25 days (February 27 to March 22).
In order to tackle the issue of domestic violence, public authorities have taken numerous steps at different levels in order to address the aggravating problem. Jammu & Kashmir HC was the most proactive, probably because it is the only High Court with a woman Chief Justice in India. Noting various measures taken by different countries and the recommendations of the United Nations pertaining to domestic violence, the Jammu & Kashmir High Court gave several directions including the creation of a dedicated fund to address issues of violence against women and girls, increased tele/online legal and counseling services, designated informal safe spaces (eg. grocery stores & pharmacies) for women to report domestic violence/abuse without alerting the perpetrators, increased awareness, etc. Petitions with similar relief were filed in various HCs across the country and necessary orders were passed.
Status of pending cases in Courts
Some of the HCs were proactive in giving instructions to the Family Courts to consider cases of custody of children with utmost urgency like the Kerala HC. However, since the lockdown was announced in the country starting from 23rd March 2020 there has been a total cessation of work in the Family Courts and Mediation Centres across the country. As of today, the suspension of work is until 3rd May, when the decision for a further extension of the lockdown will be taken. However, considering the present scenario it’s highly unlikely for the lower courts to resume work anytime soon.
The Supreme Court and the High Courts in the country have been entertaining only the most urgent matters. With respect to family law, only child custody and child visitation matters were being allowed. However, starting from 27th April 2020 the Supreme Court has decided to take more matters including those of other aspects of family law.
Child Custody and Child Visitation Rights
The Bombay HC rejected the petition of a husband seeking custody of the child on the grounds that the natural mother would not be able to guard the child from the coronavirus. However, finding no reason to believe the contention, the HC refused to grant custody based on mere apprehension.
In another case involving child visitation rights, the Kerala HC upheld the husband’s right to see the child during the lockdown and gave directions to the wife to ensure meeting through video-conference. Usually March is a busy month for Family Law lawyers considering the summer vacation in schools during the months of April & May as many applications for child visitations are filed. However, since the commencement of the lockdown, it has come to standstill. Moreso, because in most of the cases, the child visitation was done in the court premises. It is important that during these times of lockdown, when there is uncertainty and more anxiety among children, they receive love and affection from both parents which the courts have regarded as fundamental for a child’s growth. Therefore, the direction of the Kerala HC upholding the one parent’s right to see the child during lockdown through video-conferencing is a welcome move. However, the scale of implementation of such orders will be limited owing to the limited access to the internet in many households, especially in Jammu & Kashmir where people have access only to 2G due to national security reasons.
Issue of Maintenance
Another major problem that has arisen during the lockdown is that of maintenance. While some companies and firms have delayed the payment of salary, some have announced salary-cuts. In such a situation, the ability of the husband to pay maintenance to the wife is reduced who herself is also facing similar problems. While some clients have already reduced their maintenance amount to half, some want the terms of maintenance to be re-negotiated.
There are very pertinent questions that the courts will be faced with including the right of the wife to receive complete maintenance when the husband is facing salary cuts, to ensure minimum subsistence allowance for the wife, what would be the best interest of the child in the post-lockdown period, and many more such pressing questions along with the difficulty of ensuring compliance of its orders.
There will be a spike in family law cases relating to divorce, maintenance, child custody etc. The burden on the family courts and the mediation centres in the court complexes is going to be huge. With the already overburdened cases, it remains to be seen how the courts will tackle the issues, while we can hope for betterment in relationships.
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