ALTERNATIVE DISPUTE RESOLUTION IN FAMILY DISPUTES

Written by: Navya Mallela

INTRODUCTION

Nothing is static and everything evolves as time passes, including processes, traditions, and ways of life. The notion of a disagreement was centuries old and yet popular. For the people of India, the Alternative Dispute Resolution system is not a new phenomenon; it has been in India since time immemorial.[1] The ancient method of conflict settlement made a substantial contribution to the resolution of issues involving family, social groupings, and small commerce and property disputes.

The late Smt. Durgabi Deshmukh was the one who originally underlined the necessity for Family Courts. Smt. Deshmukh addressed the matter with Justice Chagla and Justice Gajendragadkar during a trip to China in 1953, when she had the opportunity to examine the operation of family courts, and then presented a recommendation to Prime Minister Pt. Jawahar Lal Nehru to establish Family Courts in India. Even when reform legislation was passed, the execution of the new laws left a lot to be desired. In its 59th report (1974), the Law Commission also stated that when dealing with family issues, the Court should take a very different approach than when dealing with regular civil cases, and that it should make reasonable efforts resolving before starting the trial. In 1976, the Code of Civil Process was changed to provide for a unique procedure to be used in suits or processes involving family concerns. The need was, therefore, felt, in the public interest, to establish family courts for speedy settlement of disputes.

FAMILY DISPUTES

A Family is a group of people affiliated by consanguinity, affinity or co-residence. In today's society, family is viewed as a safe refuge from the outside world that provides complete fulfilment. The family is said to provide connection, love, and trust in individuals, allowing them to escape the harsh industrialised world's competition of dehumanising forces. The family now provides social security, which is "vitally required but lacking from other social arrangements.

The Family Courts Act explains family disputes[2] as:

1) A suit or proceeding between the parties to a marriage for a nullity marriage decree (declaring the marriage null and invalid or, as the case may be, annulling the marriage), restitution of conjugal rights, judicial separation, or dissolution of marriage:

2)A suit or proceeding for declaration of the legitimacy of a marriage or the marital status of any individual.

3) A suit or proceeding between the parties to a marriage involving the parties or either of their property;

4) A suit or proceeding seeking an order or injunction in the context of a marital relationship:

5)A suit or proceeding for the declaration of a person's legitimacy;

6) A suit or proceeding for maintenance;

7) A suit or proceeding involving a person's guardianship, the custody of, or access to, a child.

ADR IN FAMILY DISPUTES

Litigation does not always result in a favourable outcome. In terms of both time and money, it is costly. Its adversarial nature does not change the parties' mindsets, resulting in resentment. Alternative resolving conflicts solutions not only save money and time, but they also keep the parties' relationship intact by encouraging communication and collaboration.[3]

Maintaining peace and harmony is the most important factor to consider while settling family conflicts. Conciliation and mediation are ancient institutions with profound roots in many civilizations' social traditions, notably in Asian culture and values. Family disagreements were settled in India by family elders who functioned as conciliators or mediators. Even now, the elders of the household and, in communities, the village elders play this duty. Panchayats serve a similar purpose and are favoured by villages over courts owing to their ease of access and quick settlement of disputes.ADR is based on the principle of amicable dispute resolution, and mediation is one such procedure that allows the parties to get down and focus on what they genuinely want, rather than what they need to pursue or what the law would allow them to fight for.

According to Black’s Law dictionary, mediation is defined as"A private, informal dispute settlement method in which a neutral third party, the mediator, assists conflicting parties in reaching an agreement,".Family dispute mediation is a method in which a mediator, an unbiased third party, assists in the resolution of family problems by encouraging voluntary agreement among the parties. The family mediator facilitates communication, promotes understanding, and directs members' attention to their individual and shared goals. The family mediator assists the parties in considering their choices, making decisions, and reaching their own agreements.

As a result, the family mediator helps the participants understand their own needs and interests, as well as the needs and interests of others. The Family Courts Act 1984[4], Civil Procedure Code[5] contains references to mediation/conciliation in family dispute resolution. The Hindu Marriage Act[6]and the Legal Services Authorities Act of 1987[7] recognise and confer special status to Lok Adalat’s, which have shown to be quite efficient in resolving family conflicts. The Family Courts Act was enacted to encourage conciliation and expedite the resolution of disputes involving marriage and family problems, as well as other matters related to them.

Conciliation, speedy settlement, a non-adversarial approach, a multi-disciplinary approach to family issues, informal and simple rules of procedure, and gender justice are claimed to be the foundation of the Family Courts' concept.[8]Counselling and conciliation are the twin foundations that support the whole framework of family courts. Counsellors are expected to give not just counselling but also to facilitate reconciliation and peaceful resolution wherever possible.

Section 9 (1) of the Family Courts Act states that "In every suit or proceeding, a Family Court shall endeavour in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding, and for this purpose, a Family Court may, subject to the nature and circumstances of the case, subject to any rules made by the High Court, follow such procedure as it may deem fit”.[9]

While Section 9 (2) directs the family court to delay the proceedings if it seems that the parties have a realistic chance of reaching an agreement for as long as it believes it is necessary to take the appropriate measures for bringing about the settlement. However, these measures do not make mediation or conciliation mandatory.

Section 23 (2) of the Hindu Marriage Act,1955 which contains similar provisions states that before granting any relief under this Act, the court shall, in the first instance, in every case where it is possible consistent with the nature and circumstances of the case, make every effort to bring the parties together; however, nothing in this subsection shall apply to any proceeding where relief is sought on any of the grounds specified in clause (i), clause (iii), clause (iv) clause (x)) clause (vi) or clause (vii) of sub-section (1) of section 13.

The Family Court Act, 1984[10] was enacted to provide for the establishment of Family Courts with the goal of promoting conciliation in and ensuring speedy settlement of, disputes relating to marriage and family affairs, as well as matters related thereto, by taking a different approach than ordinary civil proceedings. Section 9 of the Family Courts Act of 1984 establishes the responsibility of the family court to help and influence the parties in reaching a settlement on the subject matter in the first instance. The Family Court has now been given the authority to delay the proceedings for any reasonable duration to allow attempts to reach an agreement to be made to effect settlement if there is a reasonable possibility.

ANALYSIS OF THE STATUS OF ADR IN FAMILY LAW IN INDIA:

The legislative is responsible for making and amending laws, but the judiciary is responsible for developing and interpreting them to meet the demands and conditions of society. As a result, unless and until the beneficial provisions of India's matrimonial legislation promoting and advocating reconciliation in matrimonial disputes are favourably interpreted and strictly applied by the courts, the letter of the law may be an illusory mirage that only exists on the statute book. As a result, it is the solemn responsibility of matrimonial courts in India to guarantee that the mandatory settlement efforts are really implemented, and parties are encouraged to actually unlike them for out-of-court settlements. As a result, the courts bear a heavy burden to fulfil this solemn responsibility, failing which it will be impossible or ineffective to enforce reconciliation measures in matrimonial disputes in the Indian jurisdiction. As a result, it would be most valuable to identify and quote some recent high-profile Indian court decisions that have emphasised and highlighted the critical importance of beneficial Indian laws that mandates reconciliation procedures.

In Bini v. K.V. Sundaran[11], the High Court of Kerala had to decide on a unique question: whether conciliation is compulsory after the introduction of the Family Courts Act, 1984, even on the excluded grounds of conversion to another religion, renunciation of the world, mental instability, venereal illnesses, and leprosy. Calling the Family Courts Act, 1984 a special statute, and its provisions to make attempt at reconciliation mandatory at the fine instance, the High Court held:

Though no attempt at reconciliation is required under The Hindu Marriage Act, 1955, in a petition for divorce on the grounds of conversion to another religion, or other grounds excepted under Section 13 (1) of the Hindu Marriage Act, 1955 or on similar or other grounds available under any other law, the Family Court is bound to make an endeavour for reconciliation and settlement after the introduction of the Family Courts Act, 1984. The requirement is mandatory. The Family Courts Act of 1984, which is a special statute, is responsible for this conceptual change.

The Court further said that "the primary objective is to promote and preserve the sacred union of parties to the marriage. Only if the attempts for reconciliation are not fruitful, the further attempt on agreement on disagreement may be made by way of settlement."

CONCLUSION:

The whole society feels the reverberations of a family dispute in society. While several statutes already contain provisions for the conduct of arbitration, conciliation, and Lok Adalat, the Supreme Court of India has endeavoured to meet the need for a framework to govern the ADR process as a whole, and mediation in particular. It has done so by including the final versions of the Model Rules of ADR and the Model Rules of Mediation, both drafted by the Law Commission of India, in its Orders in the case of Salem Bar Association Vs. Union of India[12]with a directive that all high courts adopt them with any modifications they deem necessary.

As a result, in the contemporary social environment, where 30 million Indians now live outside of India, the most important need of the day is to build a legislation and infrastructure for ADR processes in resolving marriages solemnised in India but which have been fractured or broken abroad. They result in interparental child removal custody problems, support issues, and disagreements over marriage property settlement due to a lack of resolution. These cross-border marital difficulties should not lead to or spread to other ancillary difficulties, which would create more problems. For settling limping legal relations, ADR must be developed in a major way.

[1]An Introduction to Alternative Dispute Resolution System, Anupam Kurlwal, 2014, 2nd edition. [2] Section 7 of the Family courts Act, 1984. [3] The formal dispute resolution process is procedure-oriented and therefore consumes a lot of time and money. ADR offers the flexibility of procedure and thus save times and money. [4] The Family Courts Act 1984 [5] Code of Civil Procedure [6] The Hindu Marriage Act [7] Legal Services Authorities Act 1987 [8]Jamwal, N; “Have Family Courts lived up to Expectations” [10] The Family Court Act 1984 [11] AIR 2008 Kerala 84. [12] (2003) (1) SCC 49)