The miya-bibi takrar is a never ending serial, everywhere, all the time - from our plumber to Hollywood movie stars, from one-night stands to live-in relations, humble zoppadpattis to the palatial bungalows. But the bottom-line is invariably money.
The march to court is always on a carpet of indignation and acrimony. Roses that bloomed yesterday are shredded today, shorn of fragrance; exposed thorns growing deadlier by the day. It is always a pathetic sight.
Scene 1: Display of love for the child. Usually, only one child is involved, the sourness having overflowed in the first couple of years. The author's take on this is that both parties realise that neither is growing any younger; and one makes hay while the sun shines. Thence, the sense of urgency.
Deep down, there is a calculating machine, whirring away. If grapes and sugarcane can be squeezed dry, why not put the spouse through the wringer? Hindu law is very egalitarian in this respect. The 'broke' husband can ask for alimony from the moneyed wife. It's true; it's the law, since 1956. Mostly, that is not the case.
While there is never a specific claim of a virgin birth, or, of a single-cell fission reproduction, the art of claiming possession of 'MY child' throws up ingenious arguments. Often, the judge talks to the child, in chambers usually, to determine what is best for the kid. While some communities have built-in mechanisms favouring the mother, many considerations are juggled around. One side wins, the other side loses. A Solomon has to come to judgement.
When wrangling over the custody of 'MY child' is over, the bargaining starts. How much? When? Why so little? Why so much? Is it fair to ME?
What is the right amount to give and to take? There are no fixed scientific formulae. Judicial decisions weigh a number of factors, ranging from assets, income, style of living, age, health, number of dependants from the marriage, age of the children and their educational prospects. It's always a tough call.
We advise clients to work out a fixed lump-sum amount. Warring spouses need not see each other again; especially over money, whence most battles start. The giver always demurs. Hides the assets; a criminality. Or fakes inability. The other side conjures up Herculean burdens. Ingenious excuses meet hardened counter-points. If a clean break is arrived at, excellent. If not? Maintenance payment is the answer.
Pre-Modi, milk was available at Rs48. Three years later, one pays Rs62. Had the learned judge factored that in? Children survive on milk, insists the custodian spouse. There must be a mechanism to compensate me: “I need more money.” Unfortunately, it's always money. The other party cites the sanctity of a contract.
Equity is a fantastic judicial tool. Some may call it an escape mechanism, others, a fudge. Even a favour. We call it a call to common sense. But does common sense have a place in law, when most think of the law as an ass?
Greek law has some fine pointers in such matters. A Section on family law reads: “Irrespective of the provisions of paragraph (1) the amount of child support is automatically increased by 10% every 24 months…”
A divorced mother sought increased funds. The 'ex' balked. He brought in his constitutional right to be heard; that is, heard again. He relied on the latter part of the law which said “...The Court may, following an application made by the person liable to provide child support, order that this automatic increase shall not apply and/or that the increase is restricted.”
You be the judge. Would you side with the mother or the father?
The court, by an eight to four majority, stood up for the mother, rejecting the argument of unconstitutionality. The problem is that the law is badly drafted. But such mundane deliberations are of no use to the litigants, who want straight answers. That means that the 10% increase is justified, but disputable. WOW!