Justice is a combination of various factors; enactment of laws receptive
to the changing needs of time, their successful enforcement, practical
interpretations and application so as to fill up any void that is left and not
taken care of by statutory enactment.
The journey is incomplete unless an attempt is made to explore the
interface between life and law, between meta-narratives of justice and the secluded
experiences of individual women who venture out to claim their rights. In this interface, the mundane and
ordinariness of life gets intermingled with high-ceilinged jurisprudential
concepts and gets transformed into a legal narrative.
The manner in which women negotiate their clams and entitlements
within the realm of law and the manner in which the smoothness of women's life
experiences are fitted into the rigid structures of court, statutes and
sections is indeed an indicator for testing our notion of law and justice.
A call for a Humanitarian
Approach to Dispute Resolution: The judiciary
has time and again stressed that technicalities cannot be allowed to prevail
upon considerable interest of justice. Several high courts and Supreme Court has
addressed serious concern that since the Act mandates a compassionate approach
towards dispute resolution, courts ought not be very technical and rigid in
their approach. It has been held that
since it is a valuable legislation aimed at protecting the rights of women and
children, family court must adopt a compassionate approach while adjudicating
family matters.
Difficulties in
proceedings under Chapter IX of Cr. PC: Judges have expressed their views that there are more delays in the
family courts than there were in Magistrate's courts in proceedings for
maintenance under Section 125, Cr.PC.
According to them, the additional procedural requirements such as
mandatory counselling prescribed under the Family Courts Act cause further
delays and defeat the very purpose of transferring cases from the magistrate's
courts to the family courts. It is mandatory to go for counselling before the
case is heard even for interim relief. Without report from counsellors, the
case does not proceed in court. Further, it is also mandatory to file an
application for permission for legal representation. This increases paper work and adds to the
cost of litigation.
Domestic Violence Act: The purpose of family courts is defeated after the enactment of
the Domestic Violence Act, where jurisdiction is awarded to magistrate's courts
for maintenance under the Act instead of filing proceedings for maintenance in
the family courts, as it provides a speedier alternative.
Personal appearance of
the parties: Since family disputes concern
rights within personal relationships, it is mandatory for the parties to appear
in person. Since representation by
lawyers is not a matter of right, it is the presence of the parties that is of
primary concern. This causes a great
deal of hardship to litigants who may not be able to present themselves on each
court date.
Backlog: Speedy settlement is only an
aspiration and not a reality. Due to huge
backlog of cases, sometimes the matters which are listed are not even taken up
for hearing.
In conclusion, it can be assumed that an overnight change in law is
not possible but guaranteeing that the needy do not get a raw deal is something
which can be taken care of. Undoubtedly, the courts protect women against
injustice and go beyond legality to help them, yet, all law is not justice nor
is all justice law alone. There have been instances where strict senseless
application of law has lead to injustice and times where justice has prevailed
without law.
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