Keepers of the peace
Divorce is still a dirty word for Indian society, but lawyers who facilitate its passage, or help avoid it, know they deliver an invaluable service, says Pankaj Mullick.education Updated: Sep 22, 2011 11:48 IST
In the US and Sweden more than half of all marriages end in divorce. The institution of marriage seems to be doing much better in India. With Sri Lanka (at 1.5%), we (at 1.1%) share one of the lowest divorce rates in the world. But we are also notorious for marital rape, dowry deaths, domestic violence (against either spouse) and other phenomena that would qualify as failures of the very institution we revere. This contradiction paints a poignant picture of the long-suffering spouse and marriages breeding dysfunctional families, those little units that make up society and contribute to the collective mental state of the nation.
However, for better or for worse, the tide has been turning in the last few years (a 70% jump just in 2010, according to one survey). Various factors — increased economic independence, better awareness of one’s rights, gender-role reversal, urbanisation, moral degradation, and modern stresses — are responsible for this.
Up close, the realities become grimmer. In one case, “the husband used to regularly beat up the wife and she was finally thrown out of the matrimonial home with her three children and even the basic maintenance claim was bitterly contested by the husband. He told the court that he was ready to go to jail than pay maintenance for his wife and children,” says Aishwarya Bhati, advocate-on-record, Supreme Court of India.
So while in some cases divorce is in the best interests of all parties, the most fulfilling part for lawyers handling such cases is amicable resolution of the conflict. “A matrimonial lawyer plays a very important role in conflict resolution, by counselling the parties and making them aware of their legal rights and responsibilities. Many a time the parties reconcile, which helps in saving a family. Sometimes, the parties amicably separate, cutting out the bitter and personal fight,” adds Bhati.
So, from the wide choice available to lawyers, why does one take up bitter matrimonial cases? The simple answer is one does not. Lawyers maintain that one still goes by the merit of the case before taking it on.
“It is one’s experience and exposure in particular kind of matters over a period of time which make one feel more drawn towards a field. Since in the initial years of my profession, I got a few briefs pertaining to matrimonial disputes frequently, I got sufficient exposure as a result of which, my interest in matrimonial law grew,” says Rajat Aneja, advocate and head of litigation, Aneja & Aneja, a Delhi-based law firm.
With the commitment to this arm of the legal profession come responsibilities that go beyond the simple delivery of justice. One has to consider there are relationships and futures to be considered. “Reconciliation and mediation is always the foremost priority in matrimonial conflicts since (in) such litigation in most cases… none of the parties can win at the expense of other,” says Bhati.
Aneja provides another perspective: “Dealing with matrimonial issues is a challenging task as the parties divulge faults of their spouse — providing the real scenario. We, as lawyers, should possess the skill to scan the facts provided.
“For instance, in a matter assigned to me, the wife wanted to get rid of her husband at any cost notwithstanding the fact that she had two children who were about 10 years and 8 years, respectively. Both the children loved both their parents. However, after extensive discussion with my client, I came to the conclusion that I would be failing in my duty if I did not persuade my client to reconcile the issues, which were in fact very petty in the context of the family and the welfare of their two children.”
The case went to court, which assigned it to the Mediation Cell. With Aneja the counsel, the dispute was settled and four lives were given another chance at happiness, without the scar of a split family.
What's it about?
This arm of the legal profession focuses on matrimonial conflicts and ensuring the rights of the individuals involved, including the children. In India, marriage and divorce are viewed as per community and Acts thereof e.g. Hindu Marriage Act, Muslim Marriage Act, Special Marriage Act etc. Matrimonial conflicts are very sensitive issues and relate very closely to the fabric of the society. Complexity is part of every case and resolution can take up to six months in the least. Even divorces through mutual consent require partners to have lived separately for a year. Alimony and child custody add further complexity
9 am: Leave for court
9.30 am: Appear for first hearing
11.30 am: Counsel client on progress of case and implications
3.30 pm: Head back to office
5.30 pm: Prepare notes for new case, hand over to assistant
8 pm: Review appointments for next day and head home
Entry level: With a good law firm or an independent lawyer with a good standing at the Bar, one can earn between Rs15,000 and Rs30,000 per month
Mid-level: After practising for about 5 to 7 years Rs50,000 to Rs75,000 per month. Under a law firm or on the corporate side, one can even earn up to Rs1 lakh per month
Senior level: With an established practice of about 15 to 20 years one can hope to earn Rs10 lakh per month or above
. Zeal to guard client’s rights within the law
. Powers of persuasion and reasoning
How do i get there?
After Class 12, one can appear for the Common Law Admission Test (CLAT). Currently, 13 national law universities of India recognise the CLAT. Of late, Amity Law School (Noida), National Law School (Bangalore) and Symbiosis (Pune) have started offering an integrated five-year LLB programme. One can go on to do one’s master’s, LLM, as well.
Institutes & urls
. Faculty of Law, University of Delhi;
. National University of Law, Delhi;
. National Law University of India, Bangalore;
. NALSAR University of Law, Hyderabad;
. West Bengal National University of Juridical Sciences;
Pros & cons
Scope is growing
Reputation built slowly
Matrimonial lawyers should try to be sensitive
A veteran lawyer talks about the growing scope of the profession
What are the career prospects of a lawyer specialising in matrimonial cases/ divorces?
The number of matrimonial disputes is on the rise. The causes may be manifold, but there is a growing trend of intolerance among spouses to adjustments with their partners after marriage. This has lead to a situation wherein even for small misunderstandings parties rush to court seeking divorce. Therefore, there are very bright prospects for a lawyer who specialises in this branch of law as a career. This branch of law is also increasingly becoming a specialised one in India because of the applicability of different personal laws. The procedure followed in courts to resolve the dispute is different from that of the normal civil disputes. Matrimonial disputes are being decided by family courts and counsellors/ social workers take part in the proceedings to provide counselling support and also conciliate or mediate between the parties. There are also a growing number of transnational cases involving transborder spouses and children. A lawyer with knowledge in transnational and comparative law is better equipped to handle such cases.
What are the sensitivities that such a lawyer must keep in mind?
In a matrimonial dispute there are no winners, all are losers. The parties to a matrimonial dispute will be under severe mental stress and strain. Apart from the warring spouses, invariably there will be mute victims such as the children and in some cases even the helpless parents who will also be equally under severe mental stress. A lawyer specialising in matrimonial matters should be sensitive to the needs of the client and should be in a position to understand the vulnerability of the client. Therefore, a matrimonial lawyer should primarily approach the case with a view to unite the parties by finding out an amicable solution to the problem and not with a view to win the case for his or her client at any cost.
What questions must one ask oneself to judge one’s aptitude for the legal profession?
A lawyer needs a good analytical mind coupled with the ability to assimilate facts and present them cogently in the court. Willingness to work hard and the ability to do research are very important traits. A lawyer should have the aptitude to understand human problems and assist a client in distress to find a solution. A lawyer should be a problem solver and not a combatant. A successful legal professional today requires multi-disciplinary knowledge and skill and, therefore, a lawyer should have the ability to understand with ease different branches of knowledge — be it pure science, or social science or any other discipline. A legal professional has a duty to the society apart from his duty to his client. Therefore, more than earning money a lawyer should be willing to serve the society and social causes.
What advice would you give to students looking at the legal profession, with a view to specialising in matrimonial cases?
A student who wants to specialise in matrimonial cases has to develop a better understanding of human beings and human relationships. Matrimony being a family union, social factors play major role in the success of a family. Therefore, a good knowledge and understanding of the society and its functioning are also important. A matrimonial lawyer has to be good counsellor and problem -solver and therefore his approach has to be that of a social doctor dealing with a social disease.
Dr A Francis Julian, senior advocate, Supreme Court of India Interviewed by Pankaj Mullick