The Chief Justice of India recently said that family courts should be called "resolution centers" rather than courts. The decades-long wait for divorce, for the pittance maintenance awards extracted like teeth without anaesthesia, the tug of war for screaming children: to change the name to "resolution centres" will end it all.

The purpose of this article is to point out that the comment, though well-intentioned, suffers from biased perception about family law as “soft”. This is a common perception, perhaps due to the wide margins of discretion that a judge has. This discretion is guided by the judge’s own socialisation, politics and morality about marriage, place of women in the house and so on.

But that discretion, it must not be forgotten, is still within the margins of a clear statutory mandate.

Thankfully, we have come away from the Delhi High Court ruling in  Harvinder Kaur v. Harmandar Singh (1983), in which it was said that bringing the Constitution in to the family “is as a bull in a china shop”. Yet, the shadow of this sentiment remains.

The perception remains that “gharelu mamlas” (household matters) can be “resolved” rather than adjudicated.

This ignores the importance of court-adjudicated rulings to develop a much needed jurisprudence about rights within the family. And then I come to my pet peeve as a family lawyer: our subject is treated as a step-daughter (not even a son) of the law.

And yet, I would remind everyone that many judges earned the badge of “great” because of their rulings while serving  in the family division. Lord Denning is one and Baroness Hale another. After all, it is with family law that the constitutional goal of gender justice is best realised.

The struggle for rights of non-heterosexual couples remains to be addressed in the realm of legal reform. Family law is a deep ocean reflecting social norms and changes. It has powerful undercurrents of the resistance to change: and yet, change has to align with a fast moving society.

This is the reason for the wide and deep maintenance laws and legislation like the 2005 amendment to the Hindu Succession Act, the Protection of Women from Domestic Violence Act, the law against dowry, the right to hold stridhan (uniquely Indian derivative of a custom from ancient India).

Our family law jurisprudence is becoming more nuanced and refined as rulings get more sensitive to the issue of custody and maintenance and the extreme stress of a divorce, whether as a petitioner or as a respondent.

The site of this legal evolution cannot be reduced to simple “resolutions” in buildings called “centres”.

Technically too, the name change would be incorrect given that there is a specific legislation called the Family Courts Act. The Act designates these courts as part of a judicial hierarchy with appeals to the High Court and further to the Supreme Court by way of special leave petitions.  

But indulge me in a bit of a digression that I thought was interesting. Why does the Chief not want to use the word “court” here. What is a court? The word "court" is from the French “cour” meaning an enclosed yard. This derives from the Latin cortem, which means enclosed space. Thus, a closed space that became a power centre for the sovereign.

There are other meanings: tennis and the basketball courts, which are also defined spaces. “Courting” between lovers also requires the privacy of closed spaces.

But getting back to courts of law: Does changing “court” to something else take away from the formal structure of law? Why are family disputes different to other legal skirmishes or battles?

These enclosed spaces for family have after all enlarged to centres for particular jurisdictions to adjudicate disputes for persons who exercise  statutory legal remedies to assert "rights" and constitutional guarantees.

The Chief also suggested that we should we dress differently in family courts/resolution centres. But what about cases that travel to the High Court and the Supreme Court? Surely, the occupants of those hallowed precincts will not do themselves the indignity of discarding their sartorial paraphernalia.

We are aware of the power of name changes. It is why we want to change certain names to forget certain parts of history that some of us are ashamed of. But if that is the problem, then “court” itself is a colonial word set up by our former white masters (along with robes and taking silk as in being King's counsel). So if that is an issue, then let us drop it all and revert to the persian adalat that means what it is: justice.

But nowadays, that too is an embarrassment. So should we go to panchayat? Then paratishtha (for a village), mudrita (high level), sasita (with the King himself).

However back we go, there is no getting away from family law as part of the legal structure. The ancient treatises (PV Kane) describes 18 streams of law among which were: sexual crimes against women, adultery, partition and inheritance, duties of man and wife. And they did have divorce in ancient India (as acknowledged by Dr Rajendra Prasad who advocated continuance of panchayati divorce that the Hindu Marriage Act does too) but that, as they say, is another story. Justice Dhavan (as he then was) of the Allahabad High Court has written an excellent paper on the subject.

The modern family still needs a lot of help from the Constitution. We need the court and “courting” to be part of mainstream law to be included and taken seriously. It is no less complex and as demanding as any other law. In fact, it is imperative that we develop a rights-based jurisprudence within the architecture of the law.

The name change would clarify the suspicion that there is actually a reluctance to change the patriarchal structure of the family by introducing equal rights for all. Rights in the family are not bulls in a china shop, but streams of sunlight in dark corners of homes.

Malavika Rajkotia has been an advocate in the Indian courts for over 35 years and has developed a practice on divorce and property law.