New Delhi: From spouses awaiting final decrees in divorce cases well into their twilight years, to children raised amid emotional turmoil due to prolonged lawsuits between warring parents, India’s matrimonial litigation is rooted in relentless delays and taking a toll.
Despite well-meaning laws, justice seems to have stalled—as several cases dragging for decades in courtrooms show—denying people a chance at remarriage, scarring children, and log-jamming courts.
A case in point is of a man, now in his 60s, who had filed for divorce in a Patna family court back in the 1990s citing cruelty and desertion from his spouse. His petition was finally dismissed for lack of proof, but it took decades, with the Patna High Court upholding the dismissal only in 2018.
In the intervening years, the two parties separated and moved on with other partners, but their marriage survives on paper even though they have no contact. The unresolved legal status of their union barred the two from remarrying. Their child is now an adult, has no contact with the father, but still retains legal rights to his property.
The man chose not to appeal to the Supreme Court, seeing no point in prolonging a “dead marriage”.
Delhi-based advocate Urvi Mohan gave the details of the case to ThePrint.
Similarly, a couple from North-West Bengal, now in their late 50s, has been locked in a divorce battle for over 22 years. They were married for 16 years before the wife initiated divorce proceedings. With no allegations of cruelty or criminality involved, the case has remained stuck in a trial court, plagued by frequent adjournments and delays.
As a result, the couple remains legally married, lives separate lives and has no intention of reconciliation. They are also not able to move on, according to a Calcutta High Court lawyer ThePrint spoke to.
These cases are among thousands stuck in India’s overburdened civil courts, where matrimonial litigation often stretches beyond the tenure of the marriage itself, and gets multi-layered.
Another case that made headlines last month was of Thongkomang Armstrong Changsan, India’s ambassador to Cuba, due to him ending up with two wives following an improper and failed bid to end his first marriage.
Trying to resolve the matrimonial tangle, the courts have now urged a “settlement” between Changsan and his estranged first wife.
Changsan had attempted to dissolve his 1994 marriage to wife Neikhol, solemnised under the Christian Marriage Act, through Kuki tribal customs rather than the civil court process mandated under the Act. Securing a customary divorce from Songpijan village elders in Assam’s Dima Hasao district, he remarried in 2018.
The Gauhati High Court ruled in late 2022 that marriages solemnised under statutory law cannot be annulled through customary practices, rendering the diplomat’s second marriage legally invalid.
This July, the Supreme Court upheld the HC’s view and urged both parties to attempt reconciliation. Neikhol told the court that her husband had ended the marriage behind her back and she single-handedly raised their daughter, now 29, working in Bengaluru.
The top court directed the ambassador to facilitate the mother’s travel to Bengaluru and noted that “if at all there is a possibility of settlement, the daughter could have a significant role to play”.
Pending divorces thus affect one’s right to remarry and rebuild life, contravening the right to personal liberty. Without a formal decree, remarriage can amount to bigamy, a criminal offence under Indian law.
Lawyers dealing with divorce matters spoke about the nuances of such matters in court, the question of children and how pre-and post-litigation mediation fares between warring couples.
Speaking to ThePrint, Malavika Rajkotia, a matrimonial lawyer and author of Intimacy Undone: Marriage, Divorce and Family Law in India, said: “To get a divorce, you have to attribute fault to the other side to such an extent that a divorce is justifiable. The lower courts are apprehensive about granting divorces because the fault theory looms and granting divorce seems revolutionary to them.”
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Real vs unnecessary issues
Under Hindu marriage law, divorce can be either mutual or contested. A mutual divorce, where both spouses agree to separate, is usually completed within a year of filing.
Long legal battles take place when one spouse does not agree to the separation. In such cases, divorce is filed for under Section 13 of the Hindu Marriage Act, which lists specific grounds like cruelty, desertion, adultery, and mental illness. All contested divorces fall under this section.
The volume of litigation is compounded by the fragmentation of issues. A contested divorce can have multiple ongoing cases: complaints under Section 13 and about maintenance under Section 24, custody petitions under Guardians and Wards Act, and those under the Protection of Women from Domestic Violence Act, 2005.
Speaking on the subject, advocate Mohan told ThePrint: “The advice a lot of lawyers give these days to matrimonial dispute clients is (piling on) a bouquet of cases, ultimately multiplying the proceedings. This happens sometimes because of no better knowledge and sometimes because there is more in it for the lawyers.”
“In essence, what you decide to file in a court of law should be relief-centric. This kind of multiplicity of proceedings, where it is unnecessary, should be deprecated as it just adds to the backlog and doesn’t do any good for anybody. This practice clubbed with unnecessary adjournment requests makes it more difficult,” she added.
Layering the issue, Rajkotia added: “The greater issue most of the time is not just the children but also financial claims. Particularly of a woman when she is dependent on the husband. So, most of the time, the real issue of children and finances are not resolved.”
Mohan made another valid point. “Since authorities like the police and courts deal with such matters 50-100 times a day, there is a tendency to become desensitised about it. Training to not lose sensitivity should be given to the authorities dealing with such matters,” she said.
Children, the silent party
In Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari, the Supreme Court in 2019 reaffirmed the primacy of a child’s welfare in cases of matrimonial disputes. Yet, many children grow up through custodial tug-of-wars, missing school and suffering emotionally from parental alienation and legal proceedings.
Mohan cited a case where a couple in their late 30s, with a minor child, are fighting in courts for divorce. Additionally, they are litigating over complaints of in-laws, domestic violence, civil suits and under Section 498A (cruelty towards woman by husband and his family) of the Indian Penal Code.
The two are also living together amid all this and awaiting court’s annulment of their marriage, with Mohan pointing to the suffering of the child.
While Indian law prioritises the “best interests of the child” in custody battles, in practice, the system often treats children as “collateral damage”.
“There are three parties to the litigation: the husband, wife and the child. Children involved in matrimonial disputes are scarred for life. They, unfortunately, become the invisible part of the litigation,” she said.
“Of course, we have the judicial principles to look for the welfare of the child but in practice, year after year, you have to split custody of the child for every vacation. It brings a lot of instability and emotional turmoil. The manner in which these proceedings happen, 99.9% of the time, they end up scarring the child.”
Promise of mediation and limits
In 2013, the Supreme Court while urging parties to consider pre-litigation mediation, said that in its experience, about 10-15% of matrimonial disputes get settled through various mediation centres.
“Even if the counsellors fail in their efforts, the family courts should direct the parties to mediation centres, where trained mediators are appointed to mediate between the parties,” it added.
In theory, as an alternate dispute resolution mechanism, mediation offers couples a confidential, non-adversarial space to resolve personal disputes. In practice, it often becomes the only realistic route to settlement in a system where divorce petitions can take 10-15 years to conclude.
“There is a lot of tareekh pe tareekh (court date after date) but that is a systemic burden just by sheer case overload. However, there is a great effort to resolve matters by mediation,” Rajkotia said.
The lawyers cited an internal report of Maharashtra Legal Services Authority of 2023 which stated that around 38% of referred cases of matrimonial dispute reach partial or full settlement through mediation.
Advocate Shalini Sisodia from Delhi cited a case she resolved last week in which two doctors in a 20-year marriage had contested divorce proceedings and were at an impasse. But at the end of the mediation, they both agreed to divorce by mutual consent with the custody of the child being given to the mother. In addition, the father wrote off a joint property in favour of the child with liberal visitation rights.
Rajkotia, who has close to 40 years of experience in such matters, said: “Pre-litigation mediation is a good start and often it does get things resolved at the early stage. But even if one goes for mediation after a round of litigation (post-litigation mediation suggested by court), parties do realise the practicality of settling (matters out of court).”
She explained that the parties realise that even though they are settling for much less than what they would have liked to or had maybe not got justice, there are limits to what the legal system can give them.
In Mohan’s experience, pre-litigation mediation in matrimonial matters has seen less success than post-litigation mediation.
Explaining further, she said that before settling any matter, one needs to be sure that prolonging the litigation would cost them more money, effort and mental space.
“Post-litigation mediation is one of the best ways to end matters conclusively and positively where both parties realise that this is not how they want to live their lives (battling in court). They want to sit across the table, give up some of it and take back some power, thus work something out.”
In Sisodia’s extensive 20 year-experience as a mediator, she said that in many cases after mediation is done and before the next court date, the parties end up saying there was an understanding over mediation and want a similar order to be passed by court.
The point is that several divorce cases that get resolved amicably may not be credited to mediation but the time given to the effort rarely goes waste.
One effort to streamline and hasten matrimonial litigation was the Family Courts Act of 1984.
Under Section 9 of the Act, courts are empowered to refer parties to counselling or mediation to facilitate settlements. Specifically, the Act mandates that courts make efforts to assist and persuade parties to arrive at a settlement, and they can utilise counselling or mediation services for this purpose. Courts have also called for fast-track family courts, noting how delayed litigation can infringe on fundamental rights.
(Edited by Nida Fatima Siddiqui)
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