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I am a Thai citizen of Hindu Sikh origin. My children and I are citizens of Thailand. I have been fighting for custody of my three children since 2012. The custody of my elder two children was usurped despite a court order.
I am living all alone with my youngest son in Mumbai, India. He longs to go to Thailand to our family. There, as a citizen, I can work and earn a living and my son can have access to healthcare. I don’t have to beg for maintenance and can live a life of dignity, as a working mother. It has been eight years.
Court delays are not because of judges. It’s the unscrupulous litigants who are destroying the system. I have seen judges work; let me assure you, they work much harder than other humans. They have an unbelievably long list of cases and are forever struggling with their limited time to ensure that justice is done. Having been made to face the wrath of police and administrative power, I know better the importance of judges and the judiciary as an institution. If it were not for the judiciary, women like me would have been destroyed completely.
In my custody battle, the Supreme Court, for whom I have the greatest respect and admiration, has already made four benevolent interventions. Despite that, the trial could barely commence and has now ceased because of COVID-19.
I have a perspective from the ground. I have witnessed it from the closest quarters for eight years. There are two parties in a litigation. I will call the first side the Justice Party (the person who has knocked the doors and is seeking justice). Justice Party is always trying to bring the case to its logical end. The other side, I will call as the Unscrupulous Litigant. The Unscrupulous Litigant’s only object is DELAY. Every tactic is used to buy time. Every adjournment is a painful and expensive loss to Justice Party, but is a sweet and inexpensive victory to the Unscrupulous Litigant.
The Unscrupulous Litigant benefits because he is in illegal possession of property or the usurped custody of children, or is evading payment of maintenance to the wife or child, or dodging illegal alteration of shareholding. For the Unscrupulous Litigant, the endgame is delay. It weathers the opponent to give up his/her rights or barter them for a song. Time and money is in short supply for the Justice Party. For the Unscrupulous Litigant, every ‘Tarik Pe Tarik’ is a resounding victory.
How lower court judges are browbeaten by unscrupulous litigants
I find that trial court judges are in the most vulnerable position. Superior Court judges are able to deal with any shenanigans firmly and decisively. The trial court judge’s position can be made difficult with a malicious complaint against them to the Ministry of Law and the High Court judges. It is unfortunate, but true that the lower judiciary can be slandered and unfortunately they are in no position to defend themselves.
It is a tragic situation, because the person making the malicious complaints is not held accountable when his allegations are found to be untrue. Transfer applications to remove matters from judges on unfounded allegations are routinely made, especially in family courts. The judge immediately stops hearing the matter till transfer applications are decided. And unless contested forcefully by the Justice Party, the transfers are often given for the asking, resulting in further delay. In fact, the Supreme Court in many judgments, has deprecated this practice of making unfounded allegations against judges.
It is when this kind of browbeating takes place, that the lower judiciary become reticent. They cannot match the pen of the Unscrupulous Litigant. To prevent the hearing from taking place, there is an endless stock of excuses. Lower courts are willing to give demanded adjournments for the asking and avoid decision making, for they fear reprisals. This, despite the Supreme Court repeatedly stating that interim applications for maintenance should be decided immediately.
So what are the solutions?
Litigants making complaints against judges must be punished severely when they are unfounded.
The Supreme Court, aware of the tragedy unfolding in my case, intervened not once, but four times. But did it help? Yes, the trial kickstarted after several months. However, the machinations deployed to delay became even more innovative. For each question posed in cross-examination, the Unscrupulous Litigant gives answers which run into reams of paper of completely irrelevant matter. So half a day of the court’s time dedicated to the trial, ends up in only 3 or 4 questions being posed. He knows and is aware that the superior courts have humongous amount of work, therefore, cannot supervise the trial. He is also aware that he will not be made to pay for his actions.
Evading Service: A fine art
The Unscrupulous Litigant is a master at evading service. In order to make service as difficult as climbing Mount Everest, his lawyers are changed at frequent intervals. So the service cannot be effected on the previous lawyer. The new lawyer’s identity is not known. Hence, the option left is personal service. However, it is not as simple. When a postman/courier goes with a registered post, all he has to do is to persuade him to write a note that “addressee is not at home”. On an average, it takes 8 to 10 attempts by registered post, by courier, in person delivery, through court process server, and ultimately, when all else fails, through the court bailiff. This can take a few months.
In this day and age, the litigant should necessarily give his email ID. The said email ID should act like a unique identity for effecting service. This will reduce the court’s burden as well.
How women face their ordeals in court
Over the years, I have seen separated women frequent the courts to get subsistence maintenance for themselves and their children. Normally in Indian households, the woman’s parents give a significant portion of their life savings to the husband and his family in the fond hope that their daughter will be taken care of. But when things go wrong, this kitty of welfare goes down the drain.
The Supreme Court has repeatedly passed judgments that interim maintenance are to be given absolute priority. Shockingly, if one were to scan the records of the Family Court of Mumbai, there are cases where interim maintenance are not dealt with even after eight years. The stories of hardship separated women tell are heartrending. And the plight of her old parents, who have to silently watch their daughters and grand children go through this ordeal, is even more painful.
How frivolous litigation is multiplied
I was, after three years of separation, permitted to travel to Thailand with my son by the Supreme Court. The Court imposed, and justifiably so, the condition that if my son is not brought back, I will lose shareholding in my companies. I have been to my country nine times and have come back. But every time we propose to go, I need to make an application to the family court. There are replies, rejoinders, sur-rejoinders and endless delay tactics. It takes, on an average, two months or more for the family court to decide pointless objections.
Once my son and I are allowed to travel in terms of the order of the Supreme Court, an appeal is filed in the High Court, and once again the Court is forced to read piles of unnecessary pleadings. After a month of the High Court being forced by the Unscrupulous Litigant to waste its time on this frivolous objections, it orders travel in terms of the Supreme Court order.
Precious time of the courts is wasted in this wholly vexatious exercise, when the Courts are saddled with other important issues. It will surprise the reader that 21 applications, 21 replies, equal number of rejoinders, appeals, counter affidavits, rejoinders, 3 Special Leave Petitions and 1 review in the Supreme Court were made for the 9 occasions of travel. In real time, 1,290 court days were wasted just to reiterate the order of the Supreme Court.
An order must be passed that the undertaking given in terms of the paramount order of the Supreme Court, is a one time permanent undertaking.
As I said, eight years have gone by. What happens to the custody of my daughter? She will turn 17 soon. Will I be allowed to be her mother as she grows into a woman? Will my son who yearns to go to his country, continue to be detained here forever without maintenance? Will we be kept here like prisoners of war terminally? Will our right and wishes to live in our country as per the Convention of Children’s Rights be allowed? I have no answers to give my son.
This piece is dedicated to Mr. Soli Sorabjee, who fought my case and saw to it that my son and I could meet my cancer stricken, Parkinson's and ischemic stroke afflicted father after three years.
We would like to go back to Thailand where my maternal grandfather Darshan Singh Bajaj stood shoulder to shoulder with Netaji Subhash Chandra Bose as his main supply officer. That's my family's heritage. That's our dream.
The author is a litigant before various courts of the country.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.