Bengaluru techie Atul Subhash suicide: A reality check of family court system

The suicide note left behind by Atul Subhash, a 34-year-old software engineer from Uttar Pradesh, who died in Bengaluru, has put a spotlight on the dark side of the family court system. The over 20-page suicide note and video, where Subhash gave details of his history with his wife, the court case and the impact on his family and mental health has raised serious concerns about the system.

India Today looks at the questions Subhash raised and what the law says.

ABETMENT OF SUICIDE

The letter by Subhash raised serious allegations against his wife, his family and even the court system for pushing him towards the decision to end his life. A look at the provisions relating to the abetment of suicide, however, raises the question of whether the case would come within the strict legal definition.

Various judgments of the Supreme Court and various High Courts in cases of abetment of suicide, particularly, in cases where women die by suicide due to cruelty by in-laws, have noted that the “ingredients” of abetment have to be considered in such cases. While the dying declaration or suicide note is seen as important evidence, courts have held that even the dying declaration or a suicide note is not enough for a conviction for the offence of abetment of suicide.

In 2020, the Supreme Court quashed charges against media giant Arnab Goswami, noting that “to constitute the offence of abetment there must exist a direct or indirect incitement to the commission of a crime, an active role of the accused in instigating or doing an act facilitating the commission of the crime, and the existence of a proximate relationship in time”.

The Bharatiya Nyaya Samhita (BNS) uses the same language as the previous Indian Penal Code to define the abetment of suicide. Section 108 of the BNS reads that if any person dies by suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine.

The offence of “abetment of a criminal act” also gives a detailed definition to the term “abet” under section 45 of the BNS. A person abets the doing of a thing, who instigates any person to do that thing, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or intentionally aids, by any act or illegal omission, the doing of that thing.

Subhash’s suicide note gave a detailed account of the frustration felt by him due to the actions of his wife and even cites two instances where his wife and mother-in-law taunted him about dying by suicide. These instances are in March and April this year. The question may be asked then whether this could be considered a “proximate or direct” cause of his decision to take his own life.

LAW AND ALIMONY

Section 125 of the CrPC and the rules relating to alimony and maintenance have been geared towards ensuring that women and children are not left destitute in case of marriage failure. In 2020, the Supreme Court set down guidelines in the Rajnesh vs Neha verdict for uniformity and consistency in granting maintenance and alimony.

While the bench noted that a straightjacket formula could not be created, it laid down the factors that have to be considered, including the income of both spouses, duration of marriage, needs of the child, position and status of both parties. The court also held that reasonable expenses of the husband and any dependents and liabilities would also have to be considered when deciding the quantum of the alimony.

Under the Hindu Marriage Act, Section 24 states that a “deserving husband” can also claim maintenance from his wife if he can show that his income/earnings is not sufficient for his living and support during the pendency of the divorce proceedings. Section 25 also allows for permanent or one-time alimony for the husband in such a situation at the time of the grant of final divorce.

The provisions of the CrPC, the Bharatiya Nagrik Suraksha Sanhita and the Protection of Women from the Domestic Violence Act also allow for change in the amount of maintenance/compensation awarded in case of change in circumstances of either party. This would include changes in financial circumstances, including job loss/change, or if the wife gets a higher salary than the husband, or other changes in circumstances such as the re-marriage of either party.

The courts have also observed that despite statutory provisions granting a time-bound period for disposal of proceedings for interim maintenance, applications remain pending for several years in most cases.

The Rajnesh verdict also held that delays in award of maintenance are caused by various factors, such as tremendous docket pressure on the family courts, repetitive adjournments sought by parties, enormous time taken for completion of pleadings at the interim stage itself. In other verdicts, the courts have said that the alimony and maintenance amounts can be modified depending on changes in the circumstances of either the husband or the wife.

PARENTAL ALIENATION AND CHILD CUSTODY

An important point highlighted by this case is also the issue of access to the child and the maintenance of the child. Custody law in India considers the “best interest” of the child when it comes to the award of custody to one parent. The ability of the parent to take care of the child, the mental and physical needs of the child and other factors are taken into account by the courts.

In multiple verdicts, the Supreme Court has held that while awarding maintenance, the expenses of the child would also be taken into account.

The living expenses of the child would include expenses for food, clothing, residence, medical expenses and education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an overly extravagant amount which may be claimed.

In November last year, the Supreme Court clarified that while education expenses of the children must be normally borne by the father. But if the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

Parental alienation or the aspect of a negative perception of the “other” parent being created in the mind of the child due to the words or actions of the parent who has custody of the child has been defined as “parental alienation syndrome”, which has been recognised as a factor by the Supreme Court and highlighted in several verdicts, and where courts have passed directions to ensure that the parent who does not have custody of the child is granted access to meet the child regularly.

Lawyers, however, say that implementation of the orders for access is not done properly. Senior advocate Geeta Luthra told India Today TV, “In a number of cases, the parent who has custody simply refuses to bring the child for the meeting. There are also cases where fathers file applications and then don’t bother to meet the child. One has to ensure that access becomes a reality where the father is a caring parent.”

“There could be specific exceptions where there is proven problems like abuse, violence or alcoholism. But, apart from these, access must be given. We need to be sensitive about these aspects,” Luthra said.

LEGAL VOICES

Speaking to India Today TV, advocate Malavika Rajkotia, who is a leading lawyer in family disputes, cited “systemic failure” in the Bengaluru techie suicide case.

“I cannot comment on the specific issue because I don’t have the exact details. Broadly, I would say she cannot be said to have abetted or aided it because there is no proximity. There is a deeper systemic malaise that needs to be addressed because it gets so emotional and brutal in such cases,” Rajkotia said.

Emphasising the heavy burden of matrimonial disputes on a system, which does not have enough judges to handle the volume, Rajkotia pointed out that divorce cases bring out the “brutal emotional side” of the litigants.

“What has to be addressed is the hatred between the parties and systemic malaise. Family courts are extremely burdened due to the sheer volume of cases and not enough judges. The parties are exhausted and judges are hearing 120 cases a day,” she added.

Advocate Luthra echoed the issue of the harsh emotional and adversarial nature of divorce and family litigation.

“It’s a very difficult question. Just because somebody is misusing the system and is able to misuse the process and the laws, which were passed in favour of women. To make a case of abetment of suicide will really open a pandora’s box. I know many wives who are ready to take their lives and many husbands who are ready to take their lives,” Luthra said.

“Legally, there may not be able to link the nexus to the death. But we have to start taking a very serious view of access to the child,” she added.

Luthra pointed out that imposing the offence of abetment of suicide in such cases could set a “dangerous precedent”. “It would be setting a dangerous precedent if we start making abetment of suicide cases in situations like this. Many people feel frustrated with lack of access to the child,” she said.

The lawyers, however, agree that there was a need for systemic overhaul in family courts, particularly when it comes to issues to access to the child, parental alienation and long delays.

“We must not lose sight of the issue of mental health,” said Rajkotia, adding that trained mediators and counsellors may not be available in all courts. In Delhi, where such training is available, the facilities are overburdened.

Family courts in smaller districts also come with their own challenges. Tahini Sharma, a lawyer who practices in family courts across Uttar Pradesh and Bihar, said the Atul Subhash case was a “reality check” for the system as it stands.

“Similar things happen in some of the cases I am handling. There are many district courts where the judges and court staff are ignorant to the plight of men. I have had to file an application in some cases where the wife has given false information about her earnings, but the judge has refused to take up the issue. In one case, the judge told us they would keep the application pending but let the maintenance case be decided first. In such situations, the process does become punishment because there is no regard for the procedure,” Sharma said.

Atul Kumar of the Save Indian Family Foundation also said that there were biases involved. “Older judges are less sensitive about things like suicide and harassment. Male suicide, depression and alienation from the child are often trivialised by them,” he said.

He also said that lawyers often add “adversarial aspects” to matrimonial disputes, by encouraging clients to add allegations and file multiple applications. “Another angle is alimony and no upper limit is defined in the law,” he added, alleging that lawyers often seek enhancement of alimony amount and take a cut from the alimony.

“There is also a lack of sensitivity towards men when it comes to payment. What happens if someone loses their job or wants to change jobs which may have a lower pay scale? Then they claim it was a deliberate step. They don’t see that, even in IT or tech, people lose their jobs very easily,” Kumar further said.