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Application of ADR methods in family and matrimonial disputes

India is a secular state wherein a large population professes and practices different religions. The Indian legal system, over the times, has also developed in lines with the different religions being rehearsed in India. We've several personal laws governing different faiths.

Alternative Dispute Resolution processes are encouraged these days due to its number of inherent advantages like lower time, lower costs, easy procedures, better communication, etc. According to Justice R C Lahoti, ADR mechanisms especially agreement and conciliation should play a major part in settling disputes, as it would save energy, time and money of the petitioners, particularly in family matters. (1)

This composition focuses on the significance of indispensable disagreement resolution styles especially agreement and concession in resolving family law controversies. In this article, many provisions of particular laws and cases have been discussed in detail. Many suggestions to make the process better have also been incorporated herein.

Concept and Types of ADR

Just like the diversity in causes of disputes, the settlement models are also varied. Alternative Dispute Resolution encompasses a wide array of practices, which are directed towards a cost-effective and quick resolution of disputes. ADR, as the name suggests, is an alternative to the traditional process of dispute resolution through courts. It consists of a set of practices and techniques to resolve disputes outside the courts.

Since it actively involves parties themselves to settle their disputes, it results in the amicable settlement of disputes, which is not possible generally through courts. Hence, these practices are escape routes from the tiresome adjudication process. Many of such practices have evolved to settle the disputes with minimum adverse impact on the relationship between the parties. Mahatma Gandhi has said, "I realized that the true function of a lawyer was to unite parties��

Hence, the role of lawyers in promoting non-adversarial dispute settlement mechanisms is undoubtedly very significant. The ADR techniques mainly include arbitration, conciliation, mediation, and negotiation. In India, Lok Adalat stands as another additional form of ADR mechanism, which combines different techniques like conciliation, mediation, and negotiation.

Arbitration is a process for settlement of disputes fairly and equitably through a person or persons or an institutional body without recourse to litigation by the disputing parties pursuant to an agreement. It may be ad-hoc, contractual, institutional, or statutory. A neutral third person chosen by the parties to the dispute settles the disputes between the parties in arbitration. Though it resembles the court room based settlement, it involves less procedure and parties' choice of arbitrator. It exists with the established less cumbersome process and it is quite useful in resolving different kinds of disputes including international commercial disputes. At present, arbitration is the only legally binding and enforceable alternative to ordinary court proceedings.

Conciliation is a private, informal process in which a neutral third person helps disputing parties to reach an agreement. It is a process whereby the parties, together with the assistance of the neutral third person or persons, systematically isolate the issues involved in the dispute, develop options, consider alternatives and reach a consensual settlement that will accommodate their needs. Usually, the conciliator in this process would independently investigate the dispute and draft his report indicating the method of settlement of disputes.

Mediation involves the amicable settlement of disputes between the parties with the help of a mediator. The task of the mediator is to bring the parties together to the process of amicable settlement of their disputes. A mediator would influence the parties to cut down their demands with a view to reaching a mutually acceptable solution. Hence, the mediator plays the role of a facilitator in attaining cooperation between the parties to the dispute. Mediation lays emphasis on the parties' own responsibilities for making decisions that affect their lives instead of a third party judging the fate of parties to the dispute.

Negotiation closely resembles mediation. However, it is more often referred to as a method wherein the parties to the dispute themselves would settle their disputes. The negotiation process provides the parties an opportunity to exchange ideas, identify the irritant points of differences, find a solution, and get a commitment from each other to reach an agreement.
Lok Adalat is a unique system developed in India.

It means people's court. It is a forum where voluntary effort at bringing about a settlement of disputes between the parties is made through conciliatory and persuasive means. It encompasses negotiation, mediation and conciliation as tools to settle disputes between the parties. Lok Adalats have been given the powers of a civil court under the Code Civil Procedure.

All families at certain times experience difficulties which can be named as a family dispute. Similar controversies range from matters similar as controversies between husband and woman, relationship breakdowns, children's interest, monetary support for children and property agreement.

The Family Courts Act explains family disputes as:
  • A suit between parties to a marriage for decree of nullity, restitution of conjugal rights, judicial separation or dissolution of marriage.
  • A declaratory suit with respect to the matrimonial status of a person.
  • A suit between parties in a marriage with respect to the property of the parties or either of them.
  • A suit seeking for an instruction in the event of certain circumstances arising in a marital relationship.
  • A declaratory suit with respect to the legality of any person.
  • A suit for financial support or maintenance.
  • A suit with respect to the custodianship or guardianship of a minor.

Family Law Arbitration

Family Law arbitration is a process in which a hubby and woman, agree to submit one or further issues arising out of their present or previous relations as consorts and/ or their relations as parents of the same child or children, to a neutral third party or parties for a resolution that will be final and binding on them.

However family law arbitration isn't confined to conjugal matters alone. It also entails finding a resolution to issues similar as guardianship of children and their weal, conservation and fiscal support and other ancillary issues.

Family Law Arbitration In India

A Detail Preface of the Indian Family Law System
The Indian Parliament in Order to maintain a secular station while also enabling religions to cover themselves has legislated the following family laws which are applicable to the religious communities defined in the respective enactments themselves
  • The main marriage law legislation in India which is applicable to a maturity of the population is The Hindu Marriage Act, 1955, which is an act to amend and codify the law relating to marriage among Hindus. It applies to any person who's a Hindu, Jain, Sikh or Buddhist i.e., anyone who isn't a Muslim, Christian, Parsi or Jew.

    Farther, with regard to particular matters, Hindus are governed by the Hindu Succession Act 1956 (an act to amend and codify the law relating to intestate race among Hindus), The Hindu Minority and Guardianship Act 1956 (an act to amend and codify certain corridor of the law relating to nonage and custodianship among Hindus) and the Hindu Abdications and Conservation Act 1956 (an act to amend and codify the law relating to abdications and conservation among Hindus).
  • The Special Marriage Act 1954 provides for a special form of marriage in certain cases, for the enrollment of such and certain other marriages and for divorces under this act.
  • The Parsi Marriage and Divorce Act of 1936 seeks to govern and regulate the law relating to marriage and divorce among the Parsis in India.
  • The Indian Christian Marriage Act 1872 is an act that consolidates and amends the law relating to the solemnization of the marriages of Christians in India and the Indian Divorce Act, 1869 states the law relating to divorce and matrimonial causes relating to Christians in India.
  • The Muslim Personal Law (Shariat) Application Act 1937, The Dissolution of Muslim Marriages Act 1939, The Muslim Women (Protection of Rights on Divorce) Act 1986 and The Muslim Women (Protection of Rights on Divorce) Rules 1986, applies to Muslims living in India.
For the adjudication of all matrimonial and other ancillary controversies a person of any religion can approach the designated judicial forum as specified by the applicable legislation. There's an systematized system of designated civil and criminal judicial courts within every state in India which works under the overall governance of the separate high court in the state. Likewise, the Family Courts Act 1984 seeks to give for the establishment of family courts with a view to promote concession in and to secure speedy agreement of disputes relating to marriage and family affairs.

Why opt for Alternate Methods of Resolution?

Despite the actuality of a well- organized and established scale of judicial courts in India, suits in India including those of family matters suffer a setback owing to inordinate delay.
Judicial proceedings, due to tedious procedures, loopholes in the law and mounting costs take a long time to resolve. This not only causes inconvenience to the parties involved but also results in a backlog of cases and overloading of the courts. Further, action doesn't always lead to a satisfactory result. (3)

While it's precious, it frequently ends up in bitterness. Indispensable disagreement resolution systems aren't only cost and time effective; they save the relationship between the parties by encouraging communication and collaboration

Does the Indian Law provide for Arbitration of Family Matters?

All matters which may form the subject- matter of civil action affecting the rights, or in other words all disputes between parties relating to private rights or obligations which civil Courts may take cognizance within the meaning of Section 9 of the Civil Procedure Code 1908 may be appertained to as arbitration.

This, thus, makes family disputes suitable for arbitration. Still, this can be done within the limits set by the law. An arbitrator can not grant a divorce or an dissolution but can decide on certain other things such as how to divide property.

At this juncture, it's essential to make a note of two important provisions of the Code of Civil Procedure:
  • Section 89 of the Code of Civil Procedure Settlement of disputes outside the Court
  • Order XXXIIA 6 of the Code of Civil Procedure Suits Relating to Matters Concerning the Family.

Section 89 of the Civil Procedure Code

In Order to apply the 129th Report of the Law Commission of India, all courts were commanded that once the issues were framed, disputes should be appertained moreover to as arbitration, concession, agreement or judicial agreement for resolution. It was felt that only in the event of failure of these alternate disagreement resolution methods, should action do.
In agreement with this thing, Section 89 was articulated so as to give parties with an occasion to conclude for an amicable, out of court agreement.

Order XXXIIA 6 of the Code of Civil Procedure

It's essential to note that all proceedings under the Hindu Marriage Act and the Special Marriage Act are regulated by the provisions of the CPC. When matters regarding the family are concerned, an correction can be made to the Code of Civil Procedure in 1976. This correction handed for the obligatory agreement procedures in all matrimonial proceedings.

At this juncture, it's also indispensable to take a note of Section 9 of the Family Courts Act which states that:
In every suit or proceeding, bid shall be made by Family Court in the first case, where it's possible to do so consistent with the nature and circumstances of the case, to help and persuade the parties in arriving at a agreement in respect of the subject- matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow similar procedure as it may suppose fit.

Case Laws
Baljinder Kaur v. Hardeep Singh
Parties filed a petition before the court for divorce. Court before granting divorce, attempted reconciliation between parties stating that reconciliation as a form of alternative resolution of disputes is mandatory in divorce proceedings. Court then accepted the divorce petition stating that the main aim should be preserving the institution of marriage and its sanctity. The emphasis should be on bringing parties to mutual agreement and not to focus strictly on the rules of procedure.

Love Kumar v. Sunita Puri
In this case, one of the parties did not appear before the court at the time of reconciliation proceedings due to which court passes a decree of divorce. When the matter was taken before the High Court, the decree was set aside stating that the main aim of the courts in divorce proceedings must be to bring parties to mutual agreement. The lower court acted in haste to pass the decree of divorce here.

Mohinder Pal Kaur v/s. Gurmeet Singh
In this case, parties filed the divorce petition within 6 months of marriage but the said petition has been kept pending for a period of 6 months already. Efforts have been made to bring down the parties to settlement using reconciliation, but resulted in no success. The law says that before passing a decree of divorce, atleast 6 months should have elapsed from the date of filing of the case. But in this case, it was stated that a decree for divorce can be pronounced if the petition has been pending for more than 6 months and efforts of reconciliation has been made between the parties, but was to no success.

Suggestions And Reforms
Institution of marriage shouldn't be viewed as a dispute where parties aim to beat the other, but instead should be viewed as a holy institution wherein parties need to be brought to an amicable result whenever disagreement arises. Reconciliation should be endeavoured so as to not disrupt the family structure or the societal structure.

The development of mediation in the resolution of family disputes in India holds enormous pledge, and will surely strengthen the system's capacity to deliver justice. Mediation and Conciliation must be made compulsory in family controversies as it would help save the institution of marriage to some extent and will also divert the court's approach to prefer agreement.

There's a need to give further authority to family courts wherein all the family disputes are tried to be solved by family courts through conciliation and collective agreement. Also, further family courts must be established so that family courts are sufficient enough to resolve all similar cases and the burden of higher judiciary is lessened.

Conclusion
Thus, although not mandatory, giving alternate modes of dispute resolution a chance in the resolution of family matters is the norm of Indian legal system. This practice should actually be given all the support that it can be given.

Concluding for out of court agreements proves beneficial not only to the parties but also to the general public. The parties are advantaged through reduced costs and time lost, while the courts are a little less burdened. This allows for the speedy redress of other suits.


Award Winning Article Is Written By: Ms.Uditi Patel
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Authentication No: MR208783969604-28-0322

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