The mediation and counselling processes in matrimonial proceedings hold no safe space for women

The spirit of Family Courts and Subordinate Courts (while dealing with matrimonial issues) in Tamil Nadu are personal and conciliation oriented. As evident from the India Justice Report of the year 2022, women are largely (37%) represented in the District Judiciary in Tamil Nadu as compared to the man-to-woman binary representation ratio (16%) in the Madras High Court. As of February, 2024, out of the 8 Family Courts in Chennai, 6 are presided over by women judges. Women are preferred to be the presiding judges in Family Courts as envisioned by the Family Courts Act and in the Subordinate Courts which deal with matrimonial issues.

These Courts function solely around and towards reconciliation, counselling or mediation in order to preserve the institution of marriage by strictly adhering to the objective and ambition of the Family Courts Act. But, even with a higher representation of women in these Courts, there exists a wide gap in accessing justice by women, especially family laws. The core tools of resolving matrimonial issues, i.e counselling and mediation, as a direct corollary of their design, alienate, traumatise and dehumanise the realities of women litigants who approach these Courts to dissolve their marriages, seek guardianship or to claim maintenance.

The structure necessitates that you stand next to your husband who hit you

The process goes the following way in general. A woman separates from her husband. She reaches out to a lawyer. There are several rounds of communication for mediating regarding various terms of settlements between the representatives of both the parties to amicably settle the issues, yet the talks fail. The woman reaches the Court and files for Divorce, often on the grounds of cruelty, in many cases the instances of cruelty are physical, mental and financial violence meted out on the wife by the husband. A woman, after undergoing years and years of violence at the hands of her husband, decides to dissolve her marriage and prays for an alimony. The violence involves extreme cases of physical assaults over an extended period of time. She was thwarted from lodging a police complaint or a domestic violence complaint. To the naked eye, her wounds have vanished. Adding to this, there were instances of dowry harassment, serious accusations of adultery by the husband, caste discrimination and instances of marital rape. This is a common wretched pattern that we notice in most cases.

The structure of the justice delivery system in matrimonial matters is such that it stigmatises approaching the Court itself and seeking justice (which is subjective, i.e., what is justice for one woman is not always the definition for the other) by asking for maintenance or divorce or guardianship or permanent alimony. For one, the wife who undergoes domestic violence and cruelty in many forms, is made to stand in close proximity with her estranged husband during every hearing of their case, even though there is no law which mandates this. This is the everyday procedure in almost all the Family Courts and Subordinate Courts within the State of Tamil Nadu. If the object behind this uncodified practice is to create a false psychological effect of reconciliation and to preserve the institution of marriage from breaking down, the Courts have normalised the trembling and shaking of anxious women and invisibilized their past traumas. The ambition and objective of the Family Courts Act to reconcile and mediate in everyday scenarios contradicts the feminist constitutional ethos and harms the wives who, after great deal of hurdles, approach the Courts.

It is also worthwhile to note that in no other Courts are the parties made to stand close to each other during their case hearings. Although it is imperative that the Family Courts Act require amendments based on the contemporary developments in victim rights based approach, one cannot help but wonder how preserving the institution of marriage is often given more importance and priority than focusing on delivering justice to the parties, especially women, who had undergone cruelty, desertion or were cheated on. The requirement at this juncture is revamping of Court Halls of Family Courts and Subordinate Courts in Tamil Nadu where there exist sufficient space for the opposite parties in a matrimonial issue to stand detached, along with trauma informed training by Mental Health Practitioners, to the Family Court Judges and Subordinate Judges so each of them can customise their presiding Court Halls in such a way that victims are not continuously re-traumatised on every hearing.

Women tremble in fear because, the abuser - husband comes very close physically, in order to stand in front of the judge and for a survivor who has undergone complex trauma in the course of her marriage, it is extremely triggering. For many men, women and others, be it advocates or judges, the prevailing notion is that only the victim - wives of extreme cases of gruesome cruelty suffer from such intense triggers and all other parties - wives remain unfazed and unaffected. It's an incorrect and faulty way to approach any matrimonial issue since the abuses faced by the victim-wives are often invisible and silent and yet require years long therapy to heal. This does not describe a violent case of Domestic Violence where the application is made for a Protection Order but about the thousands of women who have filed for Divorce, Guardianship and Maintenance and are made to stand next to their abuser-husbands in a 10*10 court hall, while there exists no such rule or law.

The law demands that you sit for mandatory counselling sessions with your estranged husband with whom you have not talked for two years

The Act envisages that at the first instance of a case, the presiding officer must send the parties to Counselling. The Family Court (Tamil Nadu) Rules says the following as the Duties and functions of the Counsellors.

“Counsellor entrusted with any petition or suit shall assist and advise the parties regarding the settlement of the subject matter of dispute between the parties or any party thereof. The Counsellors shall also help the parties in arriving at reconciliation.”

The qualifications for Counsellors are not strictly psychiatry or psychology or at least counselling degrees although they are one of the criteria. Anyone who ”promotes family welfare” can be your Counsellor in the Family Courts, although in a few States, candidates with Postgraduate qualification in Social Sciences, Law or Psychology are preferred. Even though they are mere “marriage counsellors”, how a Counsellor is trained in empathy and sensitivity is always a gamble. It is extremely inconsiderate for a Court appointed Counsellor, in the very first instance, to “advise” the women who have undergone Domestic Violence or instances of cruelty at the hands of their husbands to “adjust” since “that is the reality of many marriages in this country”. Some women are told that they should think twice about the lives of their children and thus should reconcile with their husbands. Others are told to recollect three good things they like in their spouse in order to rekindle the romance. It is incredible that the reality of these Court mandated processes is that a victim-wife who still carries scars in her body and mind is told to recollect good things from her marriage.

The Counsellors are not trained in victim friendly approaches in counselling practices nor are they aware about the legal developments in many cases. The husbands are rarely told that they “should not hit their wives”, although only in passing. The parties are often coerced to sit through various rounds of counselling and are made to believe that their absence would result in adverse consequences, even in extreme cases where there is no possibility of reconciliation. More often than not, the Counsellors are not even remotely aware of the duties of husbands towards their wives or the duties of a father towards their children as mandated by the law.

The Mediators of your case ask you to take responsibility for your husband hitting you

The mediation process also tows the same line as Counselling. The mediators empanelled who has a rich practice in the Bar often follow a single straightjacket formula which they apply to all the cases they are appointed to mediate. For example, the mediator, not being aware of what has caused the spouses to separate, speak at length constantly reminding the couple to arrive at a settlement for the sake of their children and their family members and the harmful stereotypes of a marriage breaking down are repeated. There are even situations where the mediator sermons to the couple that the first step of mediation is for both the parties to accept responsibility for their marriage reaching the Court, while having no idea about what the issues in their marriage are. Advices like these are given to women who have suffered miscarriages at the hands of their husbands, to the women who were thrown out of their matrimonial houses, to the women who were physically assaulted, to the women who are mentally tormented for being unable to become pregnant, to the women who were shunned and blamed for their children's gender or disability, to the women who were body shamed for years, to the women who were raped. The objective of the Family Courts Act constantly fail due to the out of touch with reality approaches used by the mediators and counsellors, while forcing the parties in a matrimonial proceeding to undergo various rounds of sufferings.

What is being repeated in the Courts is that one who reaches the Court should have mentally prepared for all this because “that's how these Courts are'' or “you chose to fight this in Court” and etcetera harmful normalisations. It shouldn't be the norm for the parties who choose to take their issues to the Court to “compromise on'' or “adjust to” solely because they wish to adjudicate their issues before a Court of Law, especially women. The onus is on the State Judiciary and the District Judges to take initiatives to make their Courts a safe space.