ICFAI LAW SCHOOL, THE ICFAI UNIVERSITY, DEHRADUN

PROJECT ON

“ALTERNATIVE DISPUTES
RESOLUTION: FAMILY MATTERS”

SUBMITTED TO: Ms. MONICA KOTHIYAL

(ASSISTANT PROFESSOR)

FACULTY OF LAW

SUBMITTED BY:

Ankush Gupta

ENROLLMENT NO. 16FLICDDN02016

SUBMISSION DATE: 25th March, 2021

INTRODUCTION

Human conflict is inevitable. Disputes are equally inevitable. It is difficult to

imagine our human society without conflict of interests. Disputes must be
resolved at minimum possible costs both in terms of money and time, so that
more time and more resources are spared for constructive pursuits.

For resolution of disputes there is a legal system in every legal society, every
injured person is supposed to go to courts for his redressal. All the legal systems
are trying to attain a legal ideal that whenever there is a wrong, there must be a
remedy. So that nobody shall have to take law into his own hands.

In pursuit of redressal which would resolve the dispute at minimum possible

costs, both in terms of money and time. Thus, began the search for an
alternative to the conventional court system.

A large number of quasi-judicial and administrative tribunals have been created

for quicker relief. These tribunals and forums are in a way an alternative method
of dispute redressal. But even such tribunals and forums have become
overcrowded with the result that they are not able to provide relief within good
time. Consumer forums came into being to provide quick, effective and costless
relief to buyers of goods and hirers of services. Persons suffering from poor
quality of merchandize and services in the market turned out to be great in
number that consumer redressal forums and commissions have proved to be
inadequate to the volume of complaints

There thus remains a need for an alternative remedy which will not be let down
by costs and delays. Therefore, this search for and alternative method of dispute
resolution should culminate in a remedy in which there is minimum role of
official authorities and where the focus is on delivering justice and not on
technicalities of the procedural laws.

The Judicial system developed by the Britishers was very expensive and time
consuming and due to these reasons, the people’s faith on such legal system was
being diminished. After the independence it was realized that there is need to
have such an alternative means of dispute resolving system or machinery which
may be economical and less time consuming.
ALTERNATIVE DISPUTES RESOLUTION OVERVIEW

ADR gives people an involvement in the process of resolving their dispute that
is not possible in a public, formal and adversarial justice system bristled with
abstruse procedures and recondite language of the law. It offers a wide range of
choices in method, procedure, cost, representation and location. It is often
quicker than judicial proceedings and helps to ease burdens on the courts.

The technique of ADR is an effort to design a workable and fair alternative to

our traditional judicial system. It is a fast-track system of dispensing justice.
There are various ADR techniques viz. arbitration, mediation, conciliation,
mediation-arbitration, mini-trial, private judging.

These techniques have been developed on scientific lines in USA, UK, France,
Canada, China, Japan, South Africa, Australia and Singapore. ADR has
emerged as a significant movement in these countries and has not only helped
reduce cost and time taken for resolution of disputes, but also in providing a
congenial atmosphere and a less formal and less complicated forum for various
types of disputes.

The advantage of ADR is that it is more flexible and avoids seeking recourse to
the courts. In conciliation/mediation, parties are free to withdraw at any stage of
time. It has been seen that resolution of disputes is quicker and cheaper through
ADR. The parties involved in ADR do not develop strained relations; rather
they maintain the continued relationship between themselves.

ADR techniques are extra judicial in character. They can be used in almost all
contentious matters which are capable of being resolved, under law, by
agreement between the parties. They have been employed with various
encouraging results in several categories of disputes, especially civil,
commercial, industrial and family disputes. In particular these techniques have
been shown to work across the full range of business disputes: banking,
contracts, performance and interpretation; construction contracts, Intellectual
property rights, insurance coverage, joint ventures ,partnership differences,
personal injury, product liability, professional liability , real estate and securities
.ADR offers the best solution in respect of commercial disputes of an
international character. The traditional attitude of our courts towards arbitration
had been paternalistic almost school-masterly; and with international arbitration
there was a generally a lurking suspicion of a revival of foreign dominance in
India.
FAMILY DISPUTES AND ALTERNATIVE DISPUTE RESOLUTION

All families at certain times experience difficulties which can be termed as a

family dispute. Such disputes range from matters such as disputes between
husband and wife, relationship breakdowns, children’s welfare, financial
support for children and property settlement.

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 injunction in the event of certain circumstances

arising in a marital relationship.

• A declaratory suit with respect to the legitimacy of any person.

• A suit for financial support or maintenance.

• A suit with respect to the guardianship or custody of a minor.

Family Law Arbitration

Family Law arbitration is a process in which a husband and wife, or ex-husband

and ex-wife, agree to submit one or more issues arising out of their present or
prior relations as spouses 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 is not restricted to spousal
matters alone. It also entails finding a resolution to issues such as custody of
children and their welfare, maintenance and financial support and other
ancillary issues.
A Brief Introduction of the Indian Family Law System

The Indian Parliament in order to maintain a secular stance while also enabling
religions to protect themselves has enacted 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

majority 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 is a Hindu, Jain, Sikh or
Buddhist i.e., anyone who is not a Muslim, Christian, Parsi or Jew.

Further, with regard to personal matters, Hindus are governed by the Hindu
Succession Act 1956 (an act to amend and codify the law relating to intestate
succession among Hindus), The Hindu Minority and Guardianship Act 1956
(an act to amend and codify certain parts of the law relating to minority and
guardianship among Hindus) and the Hindu Adoptions and Maintenance Act
1956 (an act to amend and codify the law relating to adoptions and
maintenance among Hindus).

• The Special Marriage Act 1954 provides for a special form of

marriage in certain cases, for the registration 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 disputes a person of
any religion can approach the designated judicial forum as prescribed by the
relevant legislation. There is an organized system of designated civil and
criminal judicial courts within every state in India which works under the
overall jurisdiction of the respective high court in the state.

Furthermore, the Family Courts Act 1984 seeks to provide for the
establishment of family courts with a view to promote conciliation in and to
secure speedy settlement of disputes relating to marriage and family affairs.

Alternate Methods of Resolution: Benefits

Despite the existence of a well-organized and established hierarchy 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 overburdening
of the courts.

Further, litigation does not always lead to a satisfactory result. While it is

expensive, it often ends up in bitterness. Alternative dispute resolution systems
are not only cost and time effective; they preserve the relationship between the
 parties by encouraging communication and collaboration.

Indian Law and Arbitration of Family Matters

All matters which may form the subject-matter of civil litigation 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 referred to as arbitration.
This, therefore, makes family disputes suitable for arbitration. However, this
can be done within the limits set by the law. An arbitrator cannot grant a
divorce or an annulment but can decide on certain other things such as how to
divide property.

At this juncture, it is essential to make a note of two important provisions of

the Code of Civil Procedure:

1. Section 89 of the Code of Civil Procedure: Settlement of disputes

outside the Court

2. 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 implement the 129th Report of the Law Commission of India, all
courts were mandated that once the issues were framed, disputes should be
referred either to as arbitration, conciliation, mediation or judicial settlement
for resolution. It was felt that only in the event of failure of these alternate
dispute resolution methods, should litigation proceed.

In accordance with this goal, Section 89 was worded so as to provide parties

with an opportunity to opt for an amicable, out of court settlement.
Order XXXIIA 6 of the Code of Civil Procedure

It is 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 amendment can be made to the
Code of Civil Procedure in 1976. This amendment provided for the mandatory
settlement procedures in all matrimonial proceedings.

At this juncture, it is also indispensable to take a note of Section 9 (1) of the

Family Courts Act which states that ‘In every suit or proceeding, endeavor
shall be made by Family Court 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
any rules made by the High Court, follow such procedure as it may deem fit.’
CONCLUSION

“Discourage litigation; persuade your neighbors to compromise, whenever you

can. Point out to them the normal winner is often a real loser; in fee, expenses
and waste of time. As a peace maker, the lawyer has a superior opportunity of
being a good person.”

ADR represents only a change in forum, not in the substantive rights of parties.
ADR is not intended to supplant altogether the traditional means of resolving
disputes by means of litigation. It only trades the procedures and opportunity
for review of the courtroom for the simplicity, informality and expedition of
ADR. The primary object of ADR is avoidance of vexation, expense and delay
and the promotion of the ideal of “excess to justice”.

ADR is based on more direct participation by the disputants rather than being
run by lawyers and judges. This type of involvement is believed to increase
people’s satisfaction with the outcome and as well as with their compliance
with the settlement reached. Most ADR process is based on an integrative
approach. They are more co-operative and less competitive than adversarial
court-based method like litigation. For this reason, ADR tends to generate less
escalation and ill-will between parties.

Ethical issues should be given due regard while administrating the ADR
techniques. The integrity and fairness of the ADR process should be
maintained. The faith reposed by the parties in the ADR system by agreeing to
resolve their disputes through ADR should be respected; otherwise, an attempt
to put in an ADR mechanism would become futile.

The framework of ADR mechanism that has emerged is comprehensive. But its
success depends much on the will of the people to work it up in the right spirit
and with good faith. Serious efforts to shift to ADR deserve to be made. The
parties have to be made aware of the advantage of adopting an ADR
mechanism. Unfortunately, one or the other party is interested in delay and is
not bothered either about the cost or consequences and would not hesitate to
take a false, unethical and wholly unprincipled stand to benefit from the delay.
Therefore, ADR as a tool for dispute resolution can only work if the attitude of
the parties to unnecessary litigation change. The twin benefits of ADR
mechanisms are essentially time and money. A satisfactory solution is an
added bonus.