This is an interaction between an Advocate Dheeraj Sharma who is a new member of the Bar and a law student Mr Ayush Kumar Singh and both are discussing the legal profession, professional ethics, role of Advocates while dealing with matrimonial disputes. As a young member of the Bar, Adv Dheeraj Sharma is giving a special message to all students who are pursuing law. He emphasises why new members of the Bar should have an extra responsibility to change the perception of the Legal profession. This interview was taken by Mr Ayush Kumar Singh to submit the same to India National Bar Association (INBA).
Ayush Kumar Singh (AKS): How will you elaborate your experience as family law practitioner and its influence on you to keep a balance between your professional ethics as a Practicing Advocate and personal ethics as a member of society?
Adv Dheeraj Sharma (DS): As an Advocate, I have a different, but at the same time, unique experiences while dealing with matrimonial disputes. Besides the facts of the case and legal questions involved in the matter, we also need to deal with emotions, feelings, attachment, love and affections of parties. These matters affect not only the parties involved in the disputes but also their family and the whole society in the long run. Accordingly, we also need to play the role of mediator and counsellor. We need to listen to them carefully and try to settle their disputes at the initial stage.
Although an advocate is professional as far as his duties are concerned, however, we cannot forget that an advocate is also a human being having emotions and concerns about society. I think that makes it easy to create a balance between professional and personal ethics while dealing with family matters. In my opinion, a good human being can become a better advocate because they will fight for justice, fight for their clients, think about their genuine problems and work hard to resolve them effectively instead of just winning the case in hand. If we follow our ethics in our professional life we may be able to perform in a better way.
AKS: What are the practical problems that occur between the regulation of the Special Marriage Act and the different personal laws?
DS: The Special Marriage Act provides a unique form of marriage, its registration and divorce. A marriage between any two individuals belonging to any religion or creed may be solemnised under this Act and no religious ceremonies are obligatory for the marriage to be completed. It is up to the parties to decide whether they want to perform marriage rituals or not.
It is essential to understand that once the marriage is solemnised under the special marriage act, the provisions of the Act will be applicable concerning all the disputes arising out of such marriages, and the apex court reiterates the same from time to time.
Therefore, there is no specific problem in dealing with disputes arising from marriages solemnised under the Act unless and until the same is appropriately registered with the concerned department. Otherwise, one of the parties to the dispute may take advantage of personal law by claiming their marriage under their personal law.
AKS: What are the maintenance rights of a wife against her husband? What are the factors which may affect the liability of husband for payment of maintenance amount?
DS: Maintenance is the legal right of every woman who cannot maintain herself. There is nothing in the law which provides any specific amount for the payment of maintenance amount. However, the Hon’ble Court, time to time, held that it should be sufficient for the woman to maintain herself, enabling her to live with dignity in accordance to her status in society and earning capacity of the husband. Though the amount is not certain, it is held by the Hon’ble Court that it may be one-third of the husband’s gross income as maintenance if there is no other dependent member.
The Court has to ascertain the financial capacity/status of both the parties for fixing maintenance. As per a recent Judgment passed in August 2020 in the Kusum Sharma case, the Hon’ble High Court of Delhi issued guidelines for a modified affidavit which is required to be filed by the parties. It was held that the affidavit of assets, income and expenditure is to be treated as guidelines to determine the actual financial capacity/status of the parties.
Needless to mention here that these modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, DV Act, Section 125 of Cr P C, Hindu Adoption and Maintenance Act, Special Marriage Act, Indian Divorce Act, Guardians and Wards Act and Hindu Minority and Guardianship Act.
AKS: What are your personal views on Triple Talaq?
DS: It was a historical judgment of our Apex Court declaring the practice of Triple Talaq unconstitutional and against the rule of law. The Judgment of the Hon’ble Court was essential for the welfare of Muslim women of our society. We have to understand the importance of gendered justice and we have to promote the rule of law. Being a democratic country, the Constitution is supreme and we all are governed by the same. Therefore, there should not be any law or practice which is not in conformity with the Constitution of India.
AKS: What are the limitations in the process of outside court settlement?
DS: I always believe outside court settlement plays a vital role in the dispute settlement mechanism and speedy settlement system. However, it has some very major implications if any of the parties to the settlement may refuse to comply with the settlement terms. The said settlement arrangement between the parties has no legal sanity in the eyes of the law and the parties may need to follow the whole process of trial and adjudication in such cases.
Therefore, there is a need to make a specific law allowing out of court settlement to have a legal force so that the appropriate action like execution may be initiated against the defaulting parties.
AKS: Lastly, what advice would you like to give to students who are pursuing law?
DS: There is no alternative to hard work. As a fresh member of the Bar, I must say that it may not be challenging to pass law exams or to become an advocate, but the only thing which requires to be established in the legal practice is hard work. You need to be patient and give time to yourself to become a good advocate. It would be best if you worked hard not only in pursuing your matter but also updating your knowledge.
You should have good communication skills to connect with people because it is a profession where you will speak on behalf of your client before the Court to convince the Judge that whatever you are saying is correct and as per the law.
Decide your path without any confusion and don’t believe in rumours about our profession. There are always good and bad things about every profession, with our work too, but it is up to the individual to take benefit of good things and put their efforts to correct the negative thing. It is a very good profession, therefore, be proud that you are going to be part of this profession where you get the opportunity to wear a white shirt to promote peace and wear a white band to see the smile and satisfaction in the face of clients after the resolution of their respective disputes.
This profession allows spreading brightness in the life of an individual by wearing black coats. My advice to future Advocates and Judges is to promote more and more peace, love and humanity through this profession.