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The Confusion And Chaos of Personal Litigation

Optimus Legal Solutions
  1/4/2017 11:54:19 PM

Litigation they say in India, is akin to running a marathon. It drains you emotionally, physically,  mentally and often financially. To make matters worse at the end of it, you don’t know how it will all end up.  The stakes in personal litigation are often very high as it involves much more than mere property or money. The outcome of your  litigation may well decide how you live the rest of your life.

          The chaos and, the melee of the courts is daunting for any first time litigant. It is not a place where you can expect much kindness, compassion and understanding in the system. If you do find it, consider yourself lucky. This is not to say that there is no justice, but the fact is  before you get it. you do have a bit of a gauntlet to run. Perhaps nothing exemplifies the case in point,  than matrimonial litigation which stands out as a common example of all that is confusing and wrong with the system.  It is befuddling for any litigant  to find, that for one particular matrimonial dispute he or she has to file multiple cases in different courts. For instance a lady  seeking maintenance from her  husband under section 125 of the Code of criminal procedure has to file it before a magistrate .Is she decides to proceed under section section 18 of the Hindu Adoptions and Maintenance act it has to be filed in the civil court. A case for Maintenance (permanent alimony) under section 25 of the Hindu Marriage Act can only be filed in the court of the district Judge (which for most cases is an appellate court). If a litigant wants to file a criminal  case the matter it has to be filed in the court of the  magistrate of the area concerned. A suit for Guardianship for custody of children etc,  has to filed before the Guardian Judge. Cases under the Hindu Marriage act such as Divorce or Judicial separation can only be tried by the court of the District Judge or Additional District Judge whereas cases under the Domestic violence act are to be filed before a magistrate.    It is not easy for a litigant to understand as to why there should be such multiplicity of courts and overlapping when the issues involved are substantially the same. It is also confusing to know why there can be almost five provisions of law under which maintenance can be sought and why there are different classes of judges to adjudicate on the same issue. The family courts being set up do address the problem to some extent, but not in its entirety. A similar analogy applies to many other laws as well.  Why this is so, is a perplexing and often  contentious question to which there can be no simple answer. Perhaps it is to do with the complexities of the laws involved or to do with the compartmentalization of the system of adjudication of disputes where technicalities often hold sway over simplicity and reason. Needless to say to understand the nuances of what is admittedly a complex system of litigation, and to devise a strategy on what best course to adopt for a litigant’s case is no easy task.

                There is no room for generalization in a court of law, and to some extent the method of filing a case and then proving it by way of evidence does have  a certain mathematical progression to it.   Take for instance, the concept of desertion which is one of the grounds of divorce.  We all understand what desertion means but in legal parlance desertion means the abandonment one spouse by the other for a minimum continuous period of two years without good cause.  Abandonment for a period less than two years would not legally be construed as desertion. The question also arises, what is “good cause”. Putting it simply it means there would be certain exceptions or circumstances where a party alleging desertion by the other spouse and claiming a relief against the other will not be able to get relief on those grounds, if the spouse “deserting” shows  she or he had a good reason to stay away. What those “good reasons” are, too are given under law. The law further explains desertion to be either  actual or constructive . While actual or physical desertion  can be easily understood but constructive desertion would mean a situation where despite the husband and wife living in close proximity to each other, perhaps even in the same house or room, one has abandoned the other. How this can be so, and what constitutes constructive desertion is further elaborated in great detail particularly in various judgements of the high courts and Supreme Court of India which act as precedents for the lower courts.  

The aforesaid discussion of legal terms and its technicalities would not interest a layman or  make much sense to most of us, but they do have a precise meaning and role in the way cases are prosecuted in a court of law. Litigation is a complex business and a costly luxury. The outcome of a case can never really be predicted and those litigants who are too sure of themselves often come to grief. The point of it all is  don’t enter into litigation just to prove a point or settle scores.  Many litigants find themselves worn out by the system far before they can experience the high of a victory. The best advice to someone entering into litigation is “Don’t”. Do not go in for litigation straight away unless you have tried sorting out your problems by other means or alternative modes of dispute redressal. Litigation ought to be seen as a last resort when you find there is no option left. 

Ajit / OLS

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