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��
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
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
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
- 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
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
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
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
- 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.
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
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.
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
Authentication No: MR208783969604-28-0322