Women and Access to Justice
Geeta Sajjanshetty, Legal Officer, Lawyers Collective HIV/AIDS Unit, Bangalore examines the issue of court fees and why an exemption from court fees is important for women in particular.
“Right to access to Court is now recognized as a basic human right. It originated in the Article 8 of the Universal Declaration of Human Rights passed by the United Nations Organizations in 1948 and in Article 2 of the International Covenant on Civil and Political Rights to which India is a party”
On 10th October 1994, the Maharashtra government issued a notification wherein the women litigants in Maharashtra were provided exemption from paying court fee for matters relating to maintenance, property rights, violence and divorce. This was a result of a strong women’s movement in Maharashtra.
However, this exemption for women from paying court fee is not available for women all over India. The subject “Court fee payable in any court except Supreme Court” falls under entry 3 of List II (State list) of seventh schedule of the Constituion. This basically means that the State and not the Center is entrusted with the task of framing legislations on this subject. Court fee payable in Supeme Court falls under the Union list. Most of the states in India have their own respective Court Fee Act which governs the payment of Court fee for different cases.
PROBLEMS FACED BY WOMEN:
The Oxford dictionary defines the term Access as “the means or opportunity to approach or enter a place”.
Gender inequalities in society leave girls and young women socially and economically disadvantaged, thus increasing their vulnerability. Everyday, women in general and women living with HIV/AIDS in particular who need help, walk into our office seeking legal help. Most of them are widows and are living with the Human Immuno deficiency Virus (HIV). In most cases, they have acquired HIV from their husbands in monogamous relationships.
Discrimination, stigma, loneliness, destitution, having to single-handedly take care of dependent minor children, unemployment, illiteracy, poverty and on top of it all, being disowned by their family and relatives, are some of the problems being faced by millions of women living with HIV/AIDS in India.
Working as a legal officer in Lawyers Collective HIV/AIDS unit in Bangalore, a Non governmental (NGO) set up, we hear varied stories of harassment, torture, abuse, sexual harassment by husband, discrimination, inability to exercise their right over the family property, etc. from these women. Many women are also thrown out of the house once they are detected with HIV or in some cases after the death of their husbands.
“In India, 5.7 million people are HIV-positive; of this population, 39 percent are women. A lack of education and unequal gender relations make it difficult for women to protect themselves from HIV/AIDS. Many men who are HIV-positive hide this fact from their brides, thereby causing women to become infected after marriage. If a woman happens to survive her husband, his family often strips her of inheritance rights and throws her out of the house. Widows then are forced to support themselves. In addition, there are other social consequences for women living with HIV. They may be blamed for their infection and shunned by society. As a result of widespread prejudice, some hospitals may even deny psychological and medical treatment to women living with the disease”.
Most of the women clients who walk into our office face financial problems. They are not given monetary help and their due share in the property. Property is a highly disputed issue and it is the one thing that people do not wish to share. It is also pertinent to note that the majority of the properties are always registered in the name of a male person.
The United Nation’s report in 1980 presented that “women constitute half the world’s population, perform nearly two thirds of its hours, receive one tenth of the world’s inocme and own less than one hundreth of the property”
With the Constitutional mandate of equality the Indian Government amended the Hindu Succession Act, 1956 in August 2005 to provide equal share to female heirs along with the male heirs in the coparcenery property. However, the question is how many women in reality have been able to enjoy this right, how many have been able to get the property registered in their names? Out of the 109 women clients in Bangalore between the years 2004 to 2008 that our office entertained, 65 clients had problems related to property and maintenance . However, only 3 women have been able to file cases for claiming their due share in their family or in-laws’ property!!! The others were unable to file cases because of lack of funds and inability to pay the required court fees.
The following is the real life story of one of our clients.
Basanthi*, residing in Bangalore aged 33 years old, mother of two children (minor and studying in school), is a widow and is living with HIV. Her husband died due to HIV complications. She was thrown out of her matrimonial home penniless. She was not given any share in the property in which her husband had a share. She is helpless and destitute, she has to look after herself and her two children. She has no one to depend upon, no income to help her out of the situation.
Considering the fact that her two school going children need an amount of Rs,1500/- for the elder child and Rs.1000/- for the younger one respectively to pay for their school education inclusive of their school fee, books, traveling expenses etc; AND an amount of Rs 4106 for the monthly household expenses inclusive of ration, rent ,electricity bill etc.
Basnathi needs a maintenance of Rs.6606 per month from the in-laws as she is a dependent on them, and also because the in-laws are in possession of the property in which her husband had a share.
Basanthi could not file her case under Section 125 of the Cr.P.C as her husband was not alive and the only way she could claim maintenance was as a dependent under the Hindu Adoptions and Maintenance Act, 1956.
Under the Karnataka Court Fees and Suits Valuation Act, 1958 the litigant has to pay court fees computed on the basis of market value of the property and on an Ad valorem basis for issues like maintenance, suits for share in the property, possession, declaration, injunction and suits for money.
As maintenance is calculated on the basis of the claim for one year, the calculation for the court fee is done in the following manner
A) We need to multiply the same for one year so Rs.6606 * 12( for a year, based on 12 months) = Rs.79,272 and on this amount the Court fee is calculated.( Section 21 of the Karnataka Court Fees and Suits Valuation Act)
B) And As per schedule I part 1 item (iii) of the Karnataka Court Fees Act - If the amount of claim is exceeding Rs.75,000/- but is not more than Rs.2,50,000/- , then the amount of fee to
be paid is Rs.4,875+ 7% of the amount exceeding Rs.75,000/-
C) As the claim exceeds Rs.75,000/- hence we need to subtract Rs.79,272 - Rs. 75,000 in order to find out the excess amount and that would be Rs. 4272. and 7 % court fees on that would amount to Rs. 299/-
D) So the total Court fee amount would be Rs. 4875/- ( which is for the Court Fee on Rs.75,000/- ) + Rs 299( For the amount exceeding Rs.75,000/- which is 4272) = Rs.5174.04.
As Basnathi did not have the required amount of money to pay for her case as court fee, she ultimately had to take a loan amount in order to file her case for maintenance. This case was filed on 10th October 2006.whereas the law “Protection of Women from Domestic Violence Act,2005” came into operation from 26th October 2006!!. Had Basanthi been based in Maharashtra she would not have had to take a loan to fight her case. She could have just filed her case without paying any court fee.
The problem is far more grave for widows who cannot claim maintenance under Section 125 of the Cr .P.C. In some of the cases, we witnessed that the surviving member in the family was usually the mother-in-law and not the father-in-law which further complicates matters as they cannot make claims for maintenance under the PWDV Act. Further, many of the women clients are denied their husband’s share in the property which requires filing of a suit in the Civil Court for partition, injunction and declaration for which one needs to pay court fee depending on the claim made.
Analysis of importance of Court fee:
One of the arguments cited for having high court fees is to drive away vexatious litigants. However, it was way back, almost 150 years ago that Lord Macaulay who was heading the Law Commission in India then, recognized the demerits of such a requirement in law. He called this argument absurd because he said high court fees will also drive away honest plaintiffs. The 189th Law Commission Report on Revision of Court fees also reiterates that high court fees are no deterrent to vexatious litigation and usually results in denial of justice to the honest and the poor.
Article 14 of the Indian Constitution guarantees that, “The state shall not deny any person equality before the law or equal protection of laws within the territory of India.” The guiding factor of Article 14 is that all persons and things similarly circumstanced shall be treated alike and that people in “unlike circumstances” can not be treated alike. Further, the expression “Equality before Law” is a declaration of equality of civil rights for all persons based within India. Article 39 A was introduced in the Constitution of India by the 42nd Amendment and it provides that “the state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”
Keeping the abovementioned provisions in mind, the State Government of Maharashtra has waived off and exempted court fees for women litigants. However, it was found that women directors of companies as well as women partners of partnership firms were filing cases under this exemption and taking undue advantage of the waiver provision which as really meant for the benefit of poor women. In order to curtail this misuse of the law, the Maharashtra Government further passed another notification dated 23rd March 2000 amending the notification dated 1st October 1994 by adding an explanation “the expression property disputes shall mean property disputes arising out of and concerning matrimonial matters” which means that the provision of exemption from paying Court fee would be available only to women filing the property disputes in their personal capacity and arising out of matrimonial disputes and it will not be available for women filing property cases in their professional capacity and which is not arising out of a matrimonial dispute
Although in principle there is law of equality but when it comes to practical application there seems to be inherent inequality in the system of justice. This being the state of affairs most women are unable to file cases for maintenance and property rights in Karnataka as they would then have to pay the court fee on ad valorem basis, which means that as the value of the claim goes higher, so does the court fee.
Even though our legal system provides for provision of filing the case as an “indigent person”, however it is a lengthy and cumbersome procedure and the whole purpose of getting urgent orders gets defeated due to the inherent delay in the legal system.
Although the 189th Law Commission Report recommended the revision of court fees, it specifically stated that “it requires to be emphasized that any enhancement of the Court fee should not adversely affect the right of access to justice. Further, the amount collected by way of Court fee should not be more than the expenditure incurred in administration of civil justice, subject to these limitations, the amount of fixed Court fee prescribed under Schedule 2 of the Court fee Act,1870 may be enhanced in proportion to the extent of devaluation of the Rupee”
“Access to justice is basic to human rights and directive principles of state policy become ropes of sand, teasing illusion and promise of unreality, unless there is effective means for the common people to reach the Court, seek remedy and enjoy the fruits of law and justice.”
Under Section 70 of the Karnataka Court Fees and Suits Valuation Act, 1958 and Rules 1960 the State Government is empowered to make changes and regulate the court fee structure in the public interest. When such a provision exists under the law, the Government needs to take up pro-active steps with a view to enable women to approach the Courts as and when required.
If the Maharashtra government could take up such a progressive step for the promotion of welfare of women and waive Court fees for women litigants, why cannot the Karnataka Government in Bangalore and, for that matter, all the other state governments take up such steps? What is preventing the other state governments from replicating such provisions?
The Lawyers Collective HIV/AIDS Unit, Bangalore as well as other women’s groups have sent letters to the Karnataka Government, Law Department as well as the Chief Justice of Karnataka raising concerns regarding the exorbitant Court fees that women litigants have to pay and demanding exemption and waiver of Court fee for women. However, there has been no effective response from the Government.
The need of the hour is to revamp the justice system, removing the hurdles and obstacles in the path of justice to women in general and HIV positive women in particular all over India. The legal system in India should ensure that law has inbuilt mechanisms for women to access justice without any difficulty.