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I am the granddaughter of Darshan Singh Bajaj. The readers will not know him. He was Netaji Subhash Chandra Bose’s chief logistic supply officer in Bangkok. He was the Vice President of the Thai Bharat Lodge which played a stellar role in India’s fight for independence from the Far East. He had to ensure that 30,000 INA soldiers stationed in the Far East are given the provisions and logistic support. He went all over war-torn areas of Cambodia, Laos, and Vietnam for it. I will come back to that later.
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 (now for two since my son has turned major) since 2012.
I am living all alone with my youngest son in Mumbai, India. He longs to go to his country Thailand back to our family. There, as a citizen, I can work and earn a living and my son can have access to the paternal health care of the State. And, in my country, I don’t have to beg for maintenance and can live a life of dignity, as a working mother.
ON JUDGES
Delay is not because of Judges. I have seen the system from close quarters, as I said for 8 years. Because I have seen the courts and how Judges work. They work extremely hard, harder than most human beings. They have an unbelievably long list of cases. One look at the list and you wonder how they complete a board of 50 to 60 matters a day. They are forever struggling with their limited time to ensure that matters are heard and justice is done. They have to make the painful choice – of taking matters according to the competing human urgencies. The choice is painful. Having been made to face the wrath of the police and administrative power, I know better, the importance of Judges and the judiciary as an institution and how they deal with the liberties of men and women. If it were not for the judiciary, women like me would have been destroyed completely.
The system is being broken by unscrupulous litigants who have no respect for law. It is wrong to blame the judiciary for them.
Hon’ble Supreme Court’s 5 Benevolent Interventions
I have been fighting for the custody of my children. It has been 8 long years. I have received an average of Rs. 58 per day as maintenance for myself and my son. The Hon’ble Supreme Court understanding what was going on, has already made 5 benevolent interventions. They have understood how the system is being subverted and has repeatedly given a dictate to the courts below. Despite that, the trial could barely commence and is now rested because of COVID 19. Let me explain how the justice delivery system is rendered dysfunctional not by the judiciary but by unscrupulous institutions.
Delay: Its Not The System, It Is The Litigant
I have a perspective having witnessed it from the closest quarters for 8 years. There are two parties in litigation. I will call the 1st side as the Justice Party (the person who has knocked the doors and 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 frustrate the proceedings and buy time. Every adjournment is a painful and expensive loss to Justice Party. But it is asweet and an inexpensive victory for the Unscrupulous Litigant. The Unscrupulous Litigant benefits because he is, in illegal possession of property or the usurped custody of children or evading payment of maintenance to the wife or child, or dodging illegal alteration of shareholding.The list of reason is endless. For the Unscrupulous Litigant, the endgame is delay. It weathers the opponent to give up his/her rights or simply take the sadistic pleasure in the harm delay causes. 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 Browbeaten By Unscrupulous Litigants
I find that Trial Court Judges are in the most vulnerable position. The Judges of the High Court and the Supreme Court wield power. Superior Court Judges are able to deal with any shenanigans firmly and decisively. The Trial Court Judge’s position can be made difficult with malicious complaint against them by a disgruntled litigant to the Ministry of Law or the Guardian High Court judges. It is unfortunate, but true that lower judiciary can be slandered and unfortunately they are in no position to defend.
It is a unfortunate situation. This is 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 as often prejudice is alleged. No judge would want to be accused of prejudice. The matter is thus brought to a grinding halt. Time stops for the case till the transfer application is decided. And unless contested forcefully by the Justice Party, the transfers are often given for the asking, resulting in further delay. In fact I have read Supreme Court in the landmark judgments have deprecated this practice of making unfounded allegations against Judges.
It is when this kind of browbeating takes place, that the lower judiciary becomes reticent. They cannot match the pen of the Unscrupulous Litigant. To prevent the hearing from taking place there are an endless stock of excuses. They are inclined to give the demanded adjournments and avoid decision making for they fear reprisals.
I am a lay person. I am no lawyer. I am not trained in law. I am a single homemaker with the deepest respect for the judiciary. I can only make humble suggestions. I may be wrong. You must excuse me for it.
Humbly Proposed Solution 1
Litigants making complaints against Judges must be punished severely with imprisonment when it is found to be unfounded.
How to Destroy Supreme Court’s Directions for Time Bound Hearing
The Supreme Court, aware of the endless trial and tribulation of a child and a mother, intervened not once, but 5 times. But did it help? Yes, the trial kick started 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 Supreme Court time bound trial, ends up in only 3 or 4 questions posed. He ‘cocks a snook’ at the judicial system and the orders of the highest court. He knows and is aware that the superior courts have an inconceivably 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
Another source of delay is evading service. The Unscrupulous Litigant is a master at avoiding service. In order to make service as difficult as climbing Mount Everest, his lawyers are changed at frequent intervals. So the service cannot be affected on the previous lawyer. The new lawyer’s identity is not known. Hence the option left is personal service. So 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 to effect service. First by registered post, then 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. The Unscrupulous Litigant is already doing his victory lap.
Humbly Proposed Solution No.2
In this day and age of extensive and universal use of internet, the litigant should necessarily give his email ID. The said email ID should act like a UNIQUE IDENTITY NUMBER for the litigant in every court/tribunal for effecting service. The email given in one court should act as the address for every court he/she is litigating in. This will tremendously reduce the court’s time and burden as well.
How Women Face Their Ordeal In Courts
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 provided for, goes down the drain. The Supreme Court has repeatedly passed judgments that interim maintenance is to be given absolute priority. If one were to scan the records of the Family Court of Mumbai there are cases where interim maintenance applications are not even dealt with for as long as 8 years. The stories of hardship the separated women and their children face are heartrending. It is the same story: abandoned by the husband and the parents now old and incapable of giving support. From a life of comfortable middle class it crashed down into a relentless beggary. And the plight of her old parents is even more painful, who in their old age have to silently watch their daughter and grand children descend into the black hole of poverty.
How Frivolous and Vexatious Litigation Is Multiplied
I belong to, as I said earlier, Thailand. My family lives there. My father is 81. He is a cancer patient, suffering from Parkinson’s disease Ischemic strokes. He has unfailingly been for the last 8 years maintaining my son and me. I was, after 3 years of separation, permitted to travel to Thailand with my son by the Hon’ble Supreme Court. The court imposed, and justifiably so, the condition that if my son is not brought back I will lose my shareholding in my companies. I have been to my country with my son 9 times and have come back scrupulously following orders.
But every time we propose to go, I need to make an application to the Family Court. There are replies, rejoinders, surrejoinder and endless array of delay tactics. It takes, on an average, two months or more for the Family Court to decide pointless objections. The Court finally allows my son and me to travel in terms of the paramount order of the Hon’ble Supreme Court. Then an appeal is filed in the High Court and once again the court is forced to read piles of unnecessary pleading smoothing. I can see the burden of the judges faced with so many important repeating the frivolous objections. After a month of the High Court being forced by the Unscrupulous Litigant to waste its time on these frivolous objections, travel is permitted. Travel is allowed in terms of the paramount order of the Supreme Court order which governs the field.
Precious time of the courts is wasted in this wholly vexatious exercise when the Courts are saddled with other grave and 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 supreme court were made for the 9 occasions of travel. In real time, 1290 of courts days were wasted just to reiterate the paramount order of the Hon’ble Supreme Court.
Humbly Proposed Solution No.3
In cases of travel, an order can be passed that at one time permanent undertaking be furnished. So all one has to do is to go to the registrar, give dates of travel and return.
As I said, 8 years have gone by. What happens to the custody of my daughter? She is 16. Will I be allowed to be her mother in these critical years as she grows into a woman? Will my son who yearns to go to his country Thailand and be with his family, continue to be detained here forever without maintenance? Will we be kept here terminally like prisoners of war without even subsistence? 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.
Will Our Fate Be Like That Of The Ina Army At The Outskirts Of Rangoon?
As the dark monsoon clouds gather for the 8th year in succession after separation, I reread my grandfather’s book“A Tribute to the Indian Independence Movement in Thailand”.The allied forces had begun to overrun Rangoon in April/May 1945. He recounts the carnage caused by the Allied Forces on the INA-Japanese combined forces. Unfazed by the personal danger, Netaji was on the battle field. There was one thing Netaji uppermost on his mind. He wanted the safe passage of the Rani Jhansi Unit of the INA, the elite corp of women soldiers. He fought angrily with the Japanese and refused to move out of Rangoon till their safe evacuation was carried out. The Japanese relented. He drove out of Rangoon to Bangkok keeping a hawk’s eye on the trucks carrying the Rani Jhansi unit. In this hour of despondency and despair, Netaji thought only of the safety of his soldiers.
As I read the above passages of my grandfather’s book recounting Netaji’s attitude in the face of adversity and danger, I am sure there is a lesson, Darshan Singh Bajaj wanted to impart to my son and me. I also wonder whether my son and I will be stuck forever in a legal quagmire or will we get the safe passage like that of the Rani Jhansi unit of the INA.
By Aneesha Dutt, Grand Daughter Of Darshan Singh Bajaj
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 and ischemic stroke afflicted father after 3 years. Mr. Soli Sorabjee still guides my lawyers.