-Roscoe Pound

Legal reforms must evolve to meet the needs of the time and address the changing realities of society. Nowadays, it is commonly seen that when relations between a husband and wife turn sour, they are advised by legal professionals to file multiple cases. This is often done with a view to strengthen their position in legal proceedings or to let down the other party. Swiftly, a single matrimonial dispute turns into the following 5 lawsuits:

1. A maintenance proceeding under Section 125 of the Code of Criminal Procedure, 1973 (in short 'the CrPC') [now the corresponding Section 144 under the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short 'the BNSS')];

2. A petition for Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act, 1955 (in short 'the HMA');

3. A divorce petition under Section 13 of the Hindu Marriage Act, 1955;

4. Proceedings under Section 12 and other sections of the Protection of Women from Domestic Violence Act, 2005 (in short 'the DV Act');

5. A criminal prosecution for cruelty under Section 498A of the Indian Penal Code, 1860 (in short 'the IPC') [now the corresponding Section 85 under the Bharatiya Nyaya Sanhita, 2023 (in short 'the BNS')].

Although these proceedings arise under different statutes, they are generally founded upon the same marriage, the same sequence of events, the same allegations, and often the very same witnesses and documentary evidence.

1. Running Around Different Courts and Growing Difficulties:

The core story, reasons, and allegations/pleadings in all these five cases are exactly the same. Despite this, due to the current judicial system, they have to be fought in different Courts:

1. The Family Court adjudicates petitions under the HMA and maintenance proceedings under Section 125 of the CrPC/Section 144 of the BNSS.

2. Proceedings under the DV Act are ordinarily decided by the Judicial Magistrate.

3. Criminal prosecution for cruelty under Section 498A of the IPC/Section 85 of the BNS, is conducted before the competent criminal Court.

This results in a situation where the couples are compelled to appear before multiple Courts on different dates, repeatedly narrate the same facts, examine the same witnesses, and produce the same documents (originals of which can be filed only in one Court) for issues arising out of the very same marriage or relationship. This leads to enormous expenditure of time, money and judicial resources while imposing severe emotional and psychological strain upon both parties.

More importantly, different Courts, examining the same allegations independently, may arrive at inconsistent findings on issues such as cruelty, desertion, neglect, sufficient cause for separate living by wife or domestic violence. Such conflicting findings often prolong litigation and undermine confidence in the justice delivery system.

2. The Growth of transfer petition litigation in Courts:

Another significant consequence of fragmented matrimonial litigation is the increasing number of transfer petitions before the District Courts, High Courts and the Supreme Court. Since different proceedings arising out of the same matrimonial dispute are instituted before different Courts, parties frequently seek transfer of one or more proceedings to the place where they reside. In most cases, the wife seeks transfer of the proceedings to her place of residence on grounds of convenience, while the husband is compelled to contest such transfer petitions, resulting in an additional litigation, delay and expense.

The Hon'ble Supreme Court has consistently adopted a liberal approach while considering the convenience of the wife in matrimonial transfer petitions. However, it has equally recognised that the inconvenience and hardship faced by the husband cannot be ignored. In the case of Anindita Das v. Srijit Das^[1], the Hon'ble Supreme Court cautioned that:

Transfer petitions should not be allowed as a matter of course merely because they are filed by the wife, the Court noted that this Court being lenient towards women when it comes to transfer petitions, however, the lenient approach of this Court is being misused by women and on each admission day on an average 10 to 15 transfer petitions on board of each Court and emphasised that the convenience of both parties must be balanced.

This principle has further been reiterated recently by Apex Court in the case of Delma Lubna Coelho v. Edmond Clint Fernandes^[2].

A system based on the principle of "Ek Bandhan; Ek Nyayalaya” or “One Bond; One Court" would substantially reduce the necessity of such transfer petitions.

3. The Hon'ble Supreme Court's Approach:

The Hon'ble Supreme Court has itself recognised the desirability of avoiding multiplicity of proceedings. In N.C.V. Aishwarya v. A.S. Saravana Karthik Sha^[3], the Court observed that where multiple proceedings between the same parties involve common questions of fact and law, it is desirable that they be heard together to avoid multiplicity of litigation and conflicting decisions. The underlying principle is that matrimonial litigation should be administered fairly, efficiently and consistently.

4. Why India Needs a "One Marriage, One Court" Model

On one hand, we talk about providing speedy and affordable justice to the public. On the other hand, we leave the same family to wander from one court to another. The time has arrived to consider a legislative reform based upon a simple principle:

“One Marriage — One Court”

All proceedings arising out of single matrimonial relationship should ordinarily be placed before one judicial forum, preferably the Family Court.

Such a reform would produce several benefits:

1. Speedy service of notice/summons or warrant, which is a major problem.

2. Elimination of repeated recording of identical evidence.

3. Reduction of contradictory/inconsistent judicial findings.

4. Considerable saving of judicial time.

5. Lower litigation expenses for both parties.

6. Reduced emotional hardship caused by repeated appearances before different Courts.

7. Greater possibility of meaningful settlement.

Since Family Court judges are of the same senior rank as District & Sessions Judges, magistrate powers can easily be given to them for these cases.

5. Coordination of Maintenance and Criminal Proceedings: A Practical Justification

One of the principal objections to hearing maintenance proceedings and criminal proceedings before the same judicial forum is that maintenance is predominantly civil or quasi-civil in nature, whereas offences such as cruelty under Section 498A IPC/Section 85 of the BNS are criminal prosecutions requiring proof beyond reasonable doubt. It is therefore argued that the two jurisdictions must remain institutionally separate. The issue is not the merger of jurisdictions, but the coordination of connected matrimonial disputes.

6.1 Hearing under one roof:

All 5 types of cases (both civil and criminal) arising from a matrimonial dispute should be heard in a single Court, preferably the Family Court. The inconsistent pleadings in cases filed by parties under different provisions of law make a chaotic situation around the different Courts presided by Judicial Magistrates, Sessions Judges and Family Court Judges. Although, a party cannot be restricted from taking inconsistent pleas in proceedings under different provisions of law, however, if all of these proceedings take place under one roof before the same judge, it will eventually lead to most appropriate determination of proceedings.

6.2 Same Hearing Dates:

All connected matrimonial proceedings should, as far as practicable, be listed on the same hearing date so that the parties are not required to make repeated visits to different Courts.

6.3 Saving Court Time:

When a single judge sees every side of the matter (divorce, maintenance, domestic violence, and cruelty), it becomes easier to appreciate complete factual and legal matrix of the case, deliver justice and save the Court's valuable time. Simultaneous adjudication enables the Court to remain conscious of the legal consequences that one proceeding may have a bearing on in another proceeding.

6.4 Higher Chances of Settlement:

When all cases are in one place, the Court's efforts to bring about a compromise or mediation become much more effective. The parties are aware of the status and likely consequences of the various proceedings, while the Judge has a comprehensive understanding of the entire dispute, including the stage and effect of each connected case.

This system reform will not only save young lives from being ruined by endless litigation but will also fulfil the promise of "accessible and affordable justice." Thus, there is an urgent need for the government and the higher judiciary to bring about proper legal amendments or administrative orders in this direction.

1. (2006) 9 SCC 197 ↑

2. AIR 2023 SC 2106 = AIROnline 2023 SC 294 ↑

3. 2022 LiveLaw (SC) 627 ↑

1. Author is a Judge at High Court of Madhya Pradesh, Bench Jabalpur. Views are personal.