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Technology And Family Law

Family law in India is one of the most diverse and sought-after civil laws. India is a vast country with various religions and customs, which affect its personal laws. Family laws in India are personal laws and not the law of the land, which means the law of the land can outlaw them. Family laws mainly include marriages, divorce, and inheritance.

This law is categorised by religion like Hindu Law, which provides for Hindus, Buddhists, Jains and Sikhs; Mohmedan law for Muslims; Christian laws for Christians, and Jews have Parsi laws; and lastly, there is also the Special Marriage Act, which deals with the matters that do not fall under the previously mentioned laws. These laws have changed throughout the years, and many changes have been implemented. The main issues still remain when the legal relations start to falter, majorly in divorces and inheritances. These Disputes or conflicts are dynamic in nature and are usually resolved inside a courtroom (litigation) or outside (non-litigation) it.

Marriages are a sacred and revered custom in our country, so the court plays a massive role in these dispute reconciliations. However, sometimes, due to various reasons of either the parties, the families ought to be separated by the court's injunction. Reconciliation is mandatory under The Hindu Marriage Act, 1955 (HMA) and The Special Marriage Act, 1954 (SMA), except for them, the other religious marital law does not provide any regulations on reconciliation.

Thus, there is a void in the legislation. A significant chunk of these reconciliations occurs in divorce cases, mainly in dividing custody of the children and the division of property for alimony. The court also provides judicial separation when the two parties cannot mend the things within themselves.

India is a vast country with the highest population in the world, and the judicial system plays a massive role in keeping the country at peace and order. However, it is being slowed down by the sheer number of pending cases, which nearly sums up to 60 lakhs, and this more extended period needed to solve the disputes makes the common mass double think about taking something to court. Alternate Dispute Resolution(ADR) and Online Dispute Resolution(ODR) can easily solve these issues.

The right to a speedy trial is an inalienable right. It is a vital facet of the right to life and personal liberty under Article 21 of the Indian Constitution, as observed in the case of Hussainara Khatoon v. State of Bihar. Alternate Dispute Resolution is the practice of resolving disputes between two parties outside a court when both of the parties do not agree on their terms or do not get into legalities.

ADR In Family Law Is Prescribed And Regulated By The Following Statutes:

  • Section 23 of the Hindu Marriage Act, 1955.
  • Section 34 of the Special Marriage Act, 1954.
  • Section 9 of Family Courts Act, 1984.
  • Section 89 of The Code of Civil Procedure, 1908.

The Legal Services Authorities Act, 1987
ADR was also used for reconciliation in the case of Promila Bhagat v. Ajit Rai Singh and Bini v. Sundaran K.V.. The Apex Court and High Court set the decree that the lower courts should consider reconciliation before the dissolution of the marriage unless the marriage is void according to the provisions of law, for example, Section 11 of the Hindu Marriage Act.

ADR arbitration has been around in India since the ancient period. However, it has peaked in recent years, and its true potential is unlocked by technology, that is, Online Dispute Resolution(ODR). ODR saw its mainstream usage during the coronavirus pandemic when the courts all over India could not be held physically. Still, it ultimately paved the way for the use of technology in ADR and showed the world that justice can be achieved fast and reasonably via technology, too.

Other reconciliation methods, like arbitration, mediation, and Lok Adalat, are also used but are still not mainstream practices in family law. Arbitration and Alternative Dispute Resolution can help the courts provide speedy justice. They would also help the families get fair and reasonable justice, as their mental and physical health would not be affected.

Importance of ADR and ODR:

The Indian legal system is ancient, and we still follow the laws set up by the British. However, it is changing rapidly with various amendments by the legislators, this pace must be increased to match the needs of the ever-evolving society and technology. The courts have always helped the parties to get fair justice and have reduced the burdens on the families. However, the main problem still remains with the justice system, which is that it is still not speedy and affordable. The emergence of Alternative Dispute Resolution (ADR) brought with it a practical and conventional tool for resolving disputes. ADR can be taken up to fix all types of disputes, i.e. civil, commercial, industrial, family, etc.

However, the emerging technology of ODR and ADR can play a significant role in families as it can tackle the above-mentioned issues that the traditional family law courts cannot solve, like reducing the mental burden on the families and the time taken.

The Significant Benefits Of These Reconciliation Methods Are As Follows:
  • Affordability: Getting a dispute resolution from a traditional family court is very costly for a middle-class family, as there are multiple fees and hidden taxes that they have to pay to put their case forward. In the case of ODR and ADR, dispute dissolution is very cheap; ODR is also digital, which means that it is held online, and they do not have to pay for the escalated hidden fees and travel fees.
  • Speedy justice: Traditionally, the family courts take a very long time for the reconciliation of family disputes, which is very problematic for many families, as most middle-class families are from the working class, and they must provide for their families by doing jobs and this extended period makes them lose their jobs too. On the other hand, ADR and ODR provide justice faster than the traditional courts, and this fast speed is also accompanied by efficiency, which ultimately helps needy families.
  • Flexibility: Traditional family courts are limited in flexibility, as a judge or a magistrate decides everything. In ODR, much of the things are in control of either party; sometimes, the mediator also gets some power, but it is still better than traditional courts, as they can customize the outcome as per their requirements and not that of a judge.
  • Privacy of the families: The traditional family courts' proceedings are public in nature, but ODR is private in nature, as family disputes mostly get violent, and there are a lot of emotional outbursts that occur during these separations, so keeping them private is a priority for many families.
  • Easy accessibility: As we discussed before, the Indian legal system is very slow, so many cases stay pending, but with the use of ODR and other online forums, justice can be served to many families at a very fast rate, and these online platforms can be accessed by anyone with a proper internet connection, which the traditional courts fail to provide.

Current Use of ADR and ODR in India:
During the coronavirus pandemic, both ADR and ODR were used by the Indian Judiciary to provide speedy justice to pending cases that could not be resolved via physical courts, as the government had mandated social distancing. The use of ODR opened many new doors in the field of ADR as it proved to be more effective than the traditional family courts.

Even other countries started to use ODR during the pandemic. The various ODR platforms simplified the work of the conventional courts, and they also kept everyone safe. The Dalberg Group's report on ODR shows that ODR provides speedy justice and cheap justice can easily be provided by the ODR platforms like Agami, Omidyar Network, NITI Aayog, ICICI, Trilegal, Ashoka, Dvara Research, NIPFP, and Cracker & Rush.

It also stated that the ODR platforms would provide justice to the cases that would take 1825 days by the traditional courts and would be easily solved in 45-90 days in those platforms. Some ODR platforms like Udaan have resolved over 1700 cases via ODR in a single month, which traditional courts could not do. During that time, India's apex public policy think tank of the Government of India, NITI Aayog, pushed for implementing ODR in every dispute resolution scenario; their reports to the government shed light on the use of ODR and its importance in the current age.

NITI Aayog also framed various technological plans to uplift India's digital literacy rate; thus, they provided the proper technological infrastructure for the ODR, which is accessible to the common masses. 'The success of private ODR has motivated several governments in different jurisdictions to co-opt ODR into their own public court systems.'

Ultimately, the use of ODR during the coronavirus pandemic has paved the way for further improvement of ODR in India and has made it mainstream to the common mass. The various ODR platforms of that time have evolved with time since there is no current pandemic or any such social distancing norms; these platforms now also provide 'hybrid ODR', in which one party will sit in a room with a mediator and will steam it via an online meeting platform and another party will join it online and resolve their disputes.

The Supreme Court of India also played a pivotal role in integrating technology and ODR in the proceedings. In the case of the State of Maharashtra v Praful Desai, the apex court had recognised video-conferencing as a valid form of evidence and testimony and has also said that this new mode of communication would be the next step in the field of judiciary.

Technology and Family Law: The Future
With the ever-evolving technology and society, family laws should also change with it. Newer technologies, like Blockchain and Artificial Intelligence(AI), can streamline and speed up judgments and reconciliations. For instance, the data of the parties can be kept in a Blockchain network, which is decentralised, as a result of which, it can be accessed anytime and anywhere by a software application, which would used by a mediator and the other party. This network would also be encrypted so that no one else can access this sensitive information. Various software can be developed that would also use these networks and provide statistical data that could be used to produce judgements. However, the technology that would be the most helpful is AI.

AI can use those networks to provide the most accurate prediction on the judgements. AI can also be used in ORD to mediate between the parties, where Large Language Models(LLMs) can be used, like ChatGPT and Bard, or their Application Programming Interface(API) can be used as a robot mediator. 'Recent developments in AI have transformed the landscape of family law. Search engines like Google Bard and MS Bing now offer language-based queries that provide more accurate and contextually relevant results.'

Thus, AI and Blockchain can automate the ODR and ADR matters and provide easy, cheap, and quick resolutions, but they come at a cost, too. Our country is a developing country, where the network infrastructure is still rudimentary in the rural areas, where this technology cannot be appropriately used. Still, with the increased government funding and advancements, these issues can easily be solved and speedy, techy dispute resolution services can be provided to every household in India.

Family laws are one of the most critical laws in India, but the disputes that occur are very problematic for the parties involved and for the justice system. The advancements in technology like video conferencing, AI, and Blockchain technology can help reduce the burden of the traditional family courts, and they can take the more critical matters. By using these technologies, the education system of family laws, that is, the law schools, can also be changed. They could also help the current lawyers in many ways.

They would improve the relationship between the lawyer, clients and the judges. Navigating the ODR platforms would also be easy for the youth. Also, the online nature of these resolutions means that the parties would get real-time information on their cases. All the information should not be kept in bulky physical papers; instead, multipurpose PDFs can be used. At the same time, the government and the justice system should improve the country's infrastructure to support all these technologies. After the coronavirus pandemic was over, the government seemingly forgot about all ODR and other digital methods of ADR.

Another issue is cybersecurity, as the platforms that are currently in use are not fully protected; during the pandemic, Zoom was the most popular platform for all kinds of video conferencing, which had many vulnerabilities that were exploited by hackers to either hack into the meeting or create chaos in those meeting by 'Zoombombing', which would make it impossible for the participants to work correctly.

In conclusion, family law is being transformed by technology, which is improving the quality of judgement and helping the families involved to get fair and accessible justice. However, these technologies come with their shortcomings, like cybersecurity and improper infrastructure, which hinder further progress in this sector. Written By:  Ayanava Biswas

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