Family is said to be the basic unit of society, which develops society
through the chain of relationships. According to Sociologists, the family is an
intimate domestic group of people related to one another by bonds of blood,
sexual mating, or legal ties. To constitute a family, the basic need is a
meeting of two opposite sexes and tying themselves into the knot of marriage.
The institution of marriage is an important pillar of a healthy society. As time
passed away the institution of marriage and family seemed to be weakening and
more prone to breakdown. These days divorce has become a very common way to
break down a marriage. The process of getting a divorce is so time-consuming and
hectic that it breaks down the parties to the divorce physically as well as
mentally. It creates more psychological tension between husband and wife. In the
21st century, India is witnessing an increase in the rate of divorce which has
created a burden on the already burdened judiciary.
Though after the passing and enactment of the Family Courts Act 1984, family
courts were established in India to deal with family dispute matters but the
heavy load can be seen on them. So, to reduce the stress on courts, and parties
to the dispute a new form has been introduced in the Indian legal system i.e.
Alternative Dispute Resolution.
To understand the system of Alternative Dispute Resolution, the term 'dispute' &
family dispute should also be defined. So, - Marc Galanter
, observes that
"Disputes are not discrete events like births or deaths; they are more like such
constructs as illnesses and friendships, composed in part of the perceptions and
understandings of those who participate in and observe them. Disputes are drawn
from a vast sea of events, encounters, collisions, rivalries, disappointments,
discomforts, and injuries. The span and composition of that sea depend on the
broad contours of social life. The disputes that arrive at courts can be seen as
the survivors of a long and exhausting process."1
Family dispute means arising tensions in family relationships such as between wife and
husband, children, and parents, between siblings or relatives, in respect of their personal or
Kinds Of Family Disputes
History of ADR
- Domestic Disputes: A domestic dispute is generally any quarrel, which may or may not include violence, within a family or between members of the same household. The victims of domestic disputes may be children, old persons, an adult man/woman, a spouse, a cohabitant, a former spouse, or a former cohabitant. It may or may not include criminal behavior.
- Restitution of Conjugal Rights: It is a kind of dispute when one of the spouses withdraws from the association of the other spouse without any reasonable cause. The aggrieved party has to approach the court of law. This is the first stage of legal remedy which can be sought by the parties. This remedy intends to protect the institution of marriage and tries to bring reconciliation between the spouses.
- Break Down of Marriage: There exist typical situations where the marriage has all the external appearances of marriage, but none of the reality. The marriage becomes merely a shell out of which the substance is gone. In such circumstances, there is hardly any utility in maintaining the marriage as a fa�ade, when the emotional and other bounds which are of the essence of marriage have disappeared.
- Testamentary and Intestate Property Issues: If a person dies leaving behind a 'Will' bequeathing his properties in favour of certain beneficiaries, then all his/her legal heirs shall be bound by such 'Will' and the properties shall be distributed as per the directions stipulated in the 'Will'. This type of succession of property is known as Testamentary Succession, and it is governed by the Indian Succession Act, of 1954. On the other hand, Intestate Succession is one where a person dies without leaving any 'Will', and the property left by the deceased shall devolve upon his/her legal heirs by the personal law applicable to him.
- Child Care and Custody: The parents and legal guardians have a legitimate right to child care and custody. In cases where there are disputes between the wife, husband, and other guardians as to the custody of the child or where the child is abandoned or an orphan, the court follows the principle that "Welfare of the child is the supreme lex" and paramount consideration is given to the wellbeing of the child.
Ancient era - ADR is not a new concept for India. It has been prevalent in India
since Vedic times. The 'Bhradarnayaka Upnishad' is the earliest text which shows
various types of arbitral bodies like puga, sreni, and kula, also called as
panchayats which take into account the disputes of matrimonial, contractual, and
As time passed, ADR started to be practised in the form of gathering
discussions, panchayats, family councils, courts appointed by the kings, etc. It
was considered as a cheap and easy way to obtain justice. Even minor disputes
like property and trade disputes were resolved by the method of ADR.
Village-level disputes were resolved by the village elders called as an informal
way of mediation.
Types Of Ancient Courts
British Era -
- The Kula (Family Councils): Elders of the family hear the conflict and provide the solution for the same. The elders are usually of the same background as that of families.
- The Shreni (Trade or Professional Councils): A group of professionals, traders, craftsmen, etc. who are unbiased and knowledgeable are chosen as arbitrators.
- The Gana (Panchayats or Village Assembly): A village of people chooses a person, usually the elder most person of the village, with some more trustworthy and knowledgeable people who hear the matter of two parties and try settlement.
- Adhikrita (Courts appointed by Kings): These were the courts recognized by the king which consisted of justices trained in Shastras and Smrithis.
- Sasita (Kings Court): It was the highest court of law of a kingdom which was presided by the king himself and for the support of the king, chief justice and a group of judges were appointed.
- Nripa (King himself): The Supreme authority of the kingdom in judicial matters was the King who could not be contracted by anybody.
The Bengal Resolution Act, of 1772 and the Bengal Resolution Act of
1781 were one of the first legislations formed for arbitration. It provided with
parties a binding settlement with the mutual consent of both parties. Basic
cases related to matters of debts, partnership, accounts, non-performance of
contract, etc. Various other legislations like the Regulation XV of 1795(for
Madras) and Regulation XXI of 1803 (for the territory of Nawab Wazir) also came
Under British Rule, the Indian Arbitration Act, of 1899 was introduced as the
first Indian legislation regarding ADR and there it was provided- the matters
that would be settled by agreement between parties and did not require court
supervision, and everything else was left to the purview of Schedule 2 of Code
of Civil Procedure, 1908.
The next legislation was the Arbitration act of 1940 which resulted in
time-consuming, complicated, and expensive proceedings. Hence, it was repealed
and The Arbitration and Conciliation Act 1996 came into existence.
The practice of alternative dispute resolution as we know it now began in
England in 1066. To settle personal conflicts, the English held their own
informal court. These unofficial gatherings were frequently presided over by
respected men in the neighborhood. Sometimes the king would follow the citizens'
judgment rather than hearing the case in his court.
One of the earliest types of
arbitration was this one. Mediation was more common than traditional lawyers and
courts in the American Colonies. Prior to the creation of the Federal Mediation
and Conciliation Service (FMCS) in the 19th century, arbitration was mostly
utilized to resolve patent disputes after the United States attained
independence. Congress then passed the "Federal Arbitration Act" in the 1920s.
It gained popularity over the course of the 20th century.
Origin of ADR globally
We should examine our anthropological and sociological research to get a sense
of how early humans may have settled conflicts without relying on fists, clubs,
or spear arrows if we want to understand the origin of ADR. The following
methods for resolving disputes differ significantly from those used now in many
instances. However, these ancient methods gave rise to the modern methods that
we employ today.
Polynesian-ancestry Hawaiian Highlanders employed their own ancient system for
peaceful dispute resolution. It featured a family getting together to talk about
interpersonal issues while being led by a leader. Both parties respect the
session's leader, who serves as both the session's facilitator and a mediator.
Because of its traditional views on conflict resolution that derive from
Confucian ideals, China embraced mediation relatively early. According to
Confucius, harmony should not be disturbed, and conflicting legal actions are
the polar opposite of harmony. Given the focus on harmony, Chinese mediators
have had a significant impact. Chinese mediators don't just resolve conflicts;
they also give advice to the parties regarding how to coexist in harmony going
The history of ADR in the West can be traced back to the time of the ancient
Greeks. One well-known arbitration tale has been passed down through myth.
Surprisingly arbitration process was formal. An arbitrator for a certain case
was selected by a lottery.
His first responsibility was to make efforts to settle the dispute amicably. In
the event that this didn't work out, the parties would then present written
evidence and call witnesses. Having said that, the parties frequently used
various ruses to delay decisions or contest the arbitrator's findings.
The Arbitrators would hear an appeal, and they would then send the situation to
the courts. Demosthenes once claimed in such an appeal that a man named Midias
had spoken impolitely to him.
At a young age, this result could appear like a setback, but it can also be
considered as a self-control mechanism. Later, a traditional supported the
board's decision to reprimand the arbitrator. It appeared that the system had
Why Do We Need It?
As per the data released by the Indian Government in 2016 in the Rajya Sabha4,
which stated about the pending cases of family disputes in 10 major states and
UT of India. The data consisted of states like-
No. Of Pending Cases
From the above data of 2016, the top 5 states accounted for 64.92% of the total
number of pending cases in family courts in India. Hence, the above data shows
the long list of pending cases and the burden on the family courts to resolve
Alternative Dispute Resolution
The term Alternative Dispute Resolution means adopting a method other than the
court-trial method in which the dispute of the parties is settled by a third
neutral person or by the parties themselves, outside the court. It includes
arbitration, negotiation, conciliation, and Lok Adalat a mixture of arbitration
and mediation. Mediation, arbitration, and conciliation are the three important
pillars of this mechanism which are discussed below in detail.
established its roots in family disputes after the mid-1970s. With the change in
time and increase in the number of cases the method of ADR became more popular
because it gives freedom from the long courtroom trials and is economically
suitable to the parties. Moreover, mediation is considered the first choice of
the parties to the dispute to resolve the issues, especially in case of family
ADR And Its Types:
Alternative dispute resolution can be divided into two types:
- adjudicative and
The adjudicative process consists of a third neutral party who imposes a
decision on the parties who are in conflict, whereas in non � adjudicative
process neutral third party helps the parties reach their agreements a third
party can be said as the supporter of both parties which leads them to the
Forms Of ADR
ADR consists of arbitration, mediation, conciliation, and negotiation:
It is a private process where disputing parties agree that one or
several individuals can decide the dispute after receiving evidence
and final arguments.6 It stands in the place of trial and is also
subject to limited judicial review. The method is said to be one of
the best methods to resolve the dispute because parties to the
dispute can opt for a person who is a scholar in that particular
field in case of family dispute parties can go for a person who is
well-versed in family law of their own choice. It is
a cost-efficient and convenient method of resolving a dispute.
The hearings of
arbitration do not take place in the open court system and also its transcripts
are not available for the general public record. This can be very valuable for
parties in some cases who specifically seek the privacy of their dispute. It has
the limited right of appeal means that there will be no ongoing trials and
delays before resolving the matter. It is an adjudicative type of ADR.
Mediation also continues to be a popular method of resolving family
disputes. According to the American Arbitration Association and the
Society for Professionals in Dispute Resolution, Mediation is
"a process in which an impartial third party, a mediator,
facilitates the resolution of a dispute by promoting voluntary
agreement by the parties to the dispute. A mediator facilitates
communications, promotes understanding, focuses the parties on their
interests and seeks creative problem solving to enable the parties
to reach their agreements."7
Mediator's role is not to resolve the issue but to let parties
negotiate the issue and reach an agreement. In the issue of child
custody and maintenance, mediation has proven to be the best method
to resolve the dispute. In mediation the dispute can be solved
quickly by the parties in most cases it takes 2-3 sittings and the
dispute is resolved.
The relationship existing between the parties remains intact and
there is no rupture or disruption of the friendly ties between them.
Mediation has commonly resorted in family disputes, disputes between
partners in a firm, etc. where preserving the tie or relationship is
highly important. Mediation is less stressful than the other methods
the reason behind this is the amicably resolving of disputes by the
The general understanding is that communication between the
stakeholders is always the first and most important step in familial
disputes. Much responsibility lies with the adjudicator here, and so
a mediator who can invest time in understanding the nuances of the
dispute to facilitate communication and collaboration between the
parties is of utmost importance. It is also important to appreciate
that mediation does not require lawyers to be present.
It is a non-adjudicatory process. It is a party-cantered negotiation
and consent of the parties is mandatory. It is a voluntary
proceeding. The agreement is also enforceable by the decree of the
court under section 74 of the Arbitration and Conciliation Act 1996.
It is an optimal option for dispute resolution whether it is pre or
post-litigation In the case of Gaurav Nagpal v. Sumedha Nagpal8 the Supreme Court has observed that efforts
should be made at conciliation and in bridging communication gaps so that people
do not rush to the courts. The process also provides flexibility, and time, to
the structure of the proceedings to the parties.
From time to time the Indian Judiciary through its judgments has tried to put
more and more emphasis on the use of alternative dispute resolution methods. So,
here below are some leading cases related to this-
Bini v. K.V.Sundran9: In this case, the hon'ble court addressed the question of whether conciliation is mandatory after the introduction of the Family Courts Act, 1984, even on the excepted grounds of conversion to another religion, renunciation of the world, mental disorder, venereal diseases, and leprosy. The court held that, "the primary object 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."
Shiv Kumar Gupta v. Lakshmi Devi Gupta10: This case found that compliance with section 23(2) of the Hindu Marriage Act, 1955, is a statutory duty of the judge trying matrimonial cases.
Rajesh Kumar Saxena v. Nidhi Saxena11: The Allahabad High court held that it is the bounded duty of the family court to make an attempt for conciliation before proceeding with the trial of the court.
Mohd. Mushtaq Ahmad v. State12: In this case, the wife filed a divorce petition alongside an FIR against the husband under Section 498A of IPC after disputes arose between the couple.
subsequent to birth of a girl child. The Karnataka High Court directed the
parties to mediation under Section 89 CPC. The matter was settled amicably
through mediation after which the wife decided to quash the FIR. The Court
allowed this stating, "The court in exercise of its inherent powers can quash
the criminal proceedings or FIR or complaint in appropriate cases in order to
meet the ends of justice." 5. In Gurudath K. v. State of Karnataka13, the facts
are identical to the case above.
Here the court stated:
"Even if the offenses
are non-compoundable, if they relate to matrimonial disputes and the Court is
satisfied that the parties have settled the same amicably Section 320 CrPC would
not be a bar to the exercise of the power of quashing of FIR or criminal
complaint in respect of such offenses." Thus, the court allowed for the offenses
to be compounded on coming to the conclusion that the wife was under no threat
or coercion for the same.
Recent Trends/ Development
As the concept of Alternative Dispute Resolution is evolving day by day,
especially in India it has witnessed immense growth. also, family disputes
nowadays are considered to be resolved easily through ADR methods. A report
Published by Vidhi Centre for Legal Policy in 2016 revealed that out of 46000
cases of mediation that were referred by the court, 41,503 were family dispute
cases that were referred for mediation. The period of 2011-2015 experienced
25000 cases of family disputes that were referred to mediation.
This was almost
80% of the total cases referred to mediation in the said time frame14. The
references included cases under the Dowry Prohibition Act, maintenance
application cases under Section 125 of the Code of Criminal Procedure, 1973, the
Protection of Women from Domestic Violence Act, Guardians and Wards Act 1890,
and other divorce matters.
As the ADR is becoming more and more favourable to the people as well as to the
authorities. So, several new initiatives are also being taken up by the
authorities to resolve family disputes at the initial levels. One such
initiative is taken up by the Gautam Buddha Police in
collaboration with the Sharda University Noida, that is the Family dispute
Resolution Clinic for a period of 6 months.
The FDRC conducted research work as
well as mediation to resolve disputes at last its results were commendable. The
success rate of the clinic was 88%, the clinic conducted 350 sessions to resolve
119 cases, and out of these 105 cases were disposed of and 11 cases were there
where the parties entered into a legal battle15.
FDRC addresses disputes related
to families and most of them are martial dispute, apart from martial dispute
FDRC also addresses disputes filed by daughter, mother, senior citizen where
counseling and mediation is required. As per the Law mediation can be provided
at stage of dispute. FDRC provide mediation at a very initial stage where are
yet to enter a legal fight and that's why the scope of resolution is also wide.
FDRC provides Pre-FIR mediation with the voluntary consent of parties.
- Neutral Third Party- An adjudicator is present, to help the parties to resolve the dispute.
- Nature of proceeding- it is legally binding.
- Level of formality � it is formal, a proper system is followed.
- Level of Confidentiality- the level of confidentiality is kept as it is determined by the law.
- Legal Framework in India- The Arbitration and Conciliation Act 1996.
- Arbitration is used by the parties to submit one or more issues existing out of their family disputes and then it is resolved by the neutral third party.
- Neutral Third Party- a facilitator is present. The role of the facilitator is to focus on the collaboration of the parties by understanding the feelings of both parties.
- Nature of Proceeding- not legally binding.
- Level of formality- it is informal.
- Level of Confidentiality- Confidentiality is based on trust.
- Legal Framework in India- Section 89 of CPC, 1908, and Mediation Rules 2015 by the Supreme Court of India.
- More family disputes are referred to mediation than any other dispute. Due to the personal nature of the dispute, sentiments and emotions, technical, mere legal principles do not apply to them. It is also a faster process than litigation, which is notorious for carrying on for years at end. With this cost and time effectiveness, mediation becomes ideal for family law disputes.
- Neutral Third Party- a facilitator or evaluator is present.
- Nature of Proceeding- not legally binding.
- Level of formality- it is informal.
- Level of Confidentiality- confidentiality is determined by the law.
- Legal Framework in India- The Arbitration and Conciliation Act 1996. It is enforceable as the decree of the court as per Section 74 of the act.
- Conciliation is provided to both spouses and can take place if both agree to it. It generally focuses on the practical and emotional needs of separating couples or separated couples. Another thing is that it also focuses on children and a neutral conciliator tries to make parents aware of their needs and also tries to accommodate the family together. It also provides a safe and private forum in which emotions can be released, and common ground tested out, without prejudice to subsequent court proceedings.
Comparison Between ADR And JDR
Alternate Dispute Resolution:
- Win-win situations can be formed by negotiations. Both parties of the family can come to a conclusion which is acceptable to both regarding on the amount of compensation, custody of children etc.
- Focus on fulfilling interest of both parties. The advisor or mediator focuses on needs and suitability of both parties.
- Usually flexible and informal method and future oriented. Withdrawal of case can happen at any point of time. Both parties and their family members can set up a suitable time and place for negotiations.
- Confidential negotiations unless required by law and no public order to be maintained. This led to saving the image of the family and keeping the negotiations private.
- Usually not legally binding.
- Adversarial in nature- Arbitration, Collaborative in nature- Mediation.
- Personal and active participation of parties. Both parties present their views and have direct interaction with each other.
- Cost effective. Cheaper than the litigation process.
- Fast resolution of disputes than litigation.
- Time and place of proceedings are according to the convenience of both parties.
Judicial Dispute Resolution:
- Pre-trial settlement process which involves judges as settlement facilitators.
- Less formal than trial proceedings.
- Both parties and their lawyers attend the proceedings in judge's chamber.
- Confidential process and privileged documents are formed.
- Adversarial in nature, as focus is on past events and determination of rights and liabilities of parties.
- Personal appearance or active participation of parties is not always required.
- The decision is binding on both the parties.
In conclusion, alternative dispute resolution is an excellent way to reach an
agreement between the parties that is fair to both of them and gives each party
what they are entitled to. Alternative Dispute Resolution makes it simple to
address problems since it is very affordable, quick, expert, accessible, and
provides conciliation between parties.
It also involves less formality and is less combative. ADR puts a lot of
pressure on parties, especially during conciliation. This is so that potential
solutions can be suggested and Alternative Dispute Resolution can play a more
interventionist role. It is past time to encourage the use of ADR procedures,
and the government can improve the current status of ADR in the nation by
providing legal backing, training staff, and other measures.
Additionally, ADR procedures can be combined with digital platforms, and
conducting ADR online can be helpful because it will stimulate delayed dialogue
between the parties throughout the process, making it simpler to settle a
disagreement amicably. Every time a family conflict occurs, it not only ruins
the family but also has an impact on the executive branch, the court system, and
society as a whole.
The family courts, which attempt to resolve all family conflicts through
mediation and collective bargaining, need to be given more authority.
Additionally, further family courts must be established in order for family
courts to be sufficient to resolve all family related cases and burden on
judiciary is reduced
Written By: Sejal And Pranav
- Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our allegedly
contentious society, UCLA Law Review, October, 1983 - August 1984
- Utsav Mandal, Ancient Judicial System, https://www.legalserviceindia.com/legal/article-7176-ancient-judicial-system.html,
visited on 11 February 2023.
- Astha Dhawan, ORIGIN OF ADR ACROSS THE GLOBE
https://viamediationcentre.org/readnews/MjY3/Origin-of-ADR-across-the-globe, visited on 10 February 2023
- Number of cases disposed of in Family Courts and Number of courts Functional from 2013-14 to 2015-16 (From:
Ministry of Law and Justice)
- Leonard L. L, New Forms of Resolving Disputes-ADR, Family Law Quarterly, Fall 1999, Vol. 33, No. 3 (Fall
1999), pp. 581-588
- https://openstax.org/books/business-law-i-essentials/pages/2-3-arbitration, visited on 7 February 2023.
- Leonard L. L, New Forms of Resolving Disputes-ADR, Family Law Quarterly, Fall 1999, Vol. 33, No. 3 (Fall
1999), pp. 581-588.
- Gaurav Nagpal v. Sumedha Nagpal AIR 2009 SC 557.
- Bini v. K.V.Sundran AIR 2008 Kerala 84.
- Shiv Kumar Gupta v. Lakshmi Devi Gupta 2005(1) HLR 483.
- Rajesh Kumar Saxena v. Nidhi Saxena 1995(1) HLR 472.
- Mohd. Mushtaq Ahmad v. State (2015)3 AIR Kant R 363.
- Gurudath K. v. State of Karnataka Criminal Petition No. 7258 of 2014.
- Kamakshi Puri, Mediation in Family Law Disputes in India,
https://www.mappingadr.in/post/mediation-in-family-law-disputes-in-india, visited on 9 February 2023.
- Meenakshi Sinha, Complaints pour in, police to start clinic to resolve couples disputes,
visited on 8 February 2023.