India is a secular state wherein a large population professes and practices different religions. The Indian legal system, over the years, has also developed in lines with the different religions being practiced in India. We have several personal laws governing different religions.
Alternative Dispute Resolution processes are encouraged these days due to its number of inherent advantages like less time, lesser costs, easy procedures, better communication, etc. According to Justice R C Lahoti, ADR mechanisms especially mediation and reconciliation should play a major role in settling disputes, as it would save energy, time and money of the litigants, particularly in family matters. This article focuses on the importance of alternative dispute resolution methods especially mediation and conciliation in resolving family law disputes. In this article, a few provisions of personal laws and cases have been discussed in brief. Few suggestions to make the process better have also been incorporated herein.
Keywords- Mediation, Conciliation, Family disputes, Divorce.
India has diverse religions. Hindu and Muslim laws are the oldest personal laws in the Indian legal system. And over the years as religions have evolved, personal laws of the respective religion have also undergone changes. Disputes are bound to arise within families wherein litigation might not always be a satisfactory remedy as it could take a lot of time and money. Alternative Dispute Resolution is a better alternative to courts and is also time and cost effective and can also help mend relationship between parties as it encourages collaboration and communication between them.
Conciliation and mediation are old institutions and indeed they are deeply rooted in the social tradition of many societies, particularly in Asian culture and values. Traditionally, eldest member of the family or the village used to act as a mediator to resolve disputes between members of the family. Mediation in family disputes helps resolve it by promoting agreements and encouraging communication and understanding between the parties.
The Family Courts Act, 1984, The Hindu Marriage Act, 1955 and The Special Marriage Act, 1954 has reference to mediation and conciliation in resolution of family disputes. The family courts act was enacted to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. The concept of family courts rests on two pillars, namely- counselling and conciliation, wherein parties are not only counselled, but efforts are made to bring them to mutual agreement. Section 9 of the Family Courts Act talks about the similar duty of courts to endeavour to bring parties to settlement before proceeding to provide relief in divorce cases. This provision is not mandatory in nature.
Amongst several personal laws in India, The Hindu Marriage Act, 1955 (HMA) and The Special Marriage Act, 1954 (SMA) are the only ones that provide for mandatory reconciliation between the parties. Section 23(2) of The Hindu Marriage Act states that it shall be the duty of the court, in certain divorce cases, to attempt reconciliation between parties before granting them relief. Section 23(3) of the Hindu Marriage Act empowers court to adjourn proceedings for a period of 15 days so as to bring about reconciliation between the parties. Concept of marriage under Hindu law is considered sacred and hence it is the duty of courts to attempt reconciliation between the parties before granting divorce.
Section 14 of the Hindu Marriage Act, 1955 also provides for endeavouring conciliation between parties before having recourse to legal proceedings for dissolution of marriage. Courts are restricted to entertain petition for divorce unless a year has elapsed from the date of their marriage. This provision acts as a deterrent for initiating divorce proceedings during the first year of marriage so as to give a scope of settlement or reconciliation between the parties.
Sections 34 (2) and 34 (3) of the Special Marriage Act are identical to Sections 23 (2) and 23 (3) of the Hindu Marriage Act. Even though the marriage contracted under the Special Marriage Act does not have the same sacramental sanctity as marriage solemnized under the Hindu Marriage Act, the Indian Parliament in its wisdom has retained the provisions for reconciliation of marriages in the same terms in the Special Marriage Act as they exist in the Hindu Marriage Act.The said provisions of the Special Marriage Act also lay down a duty upon the courts to endeavour conciliation between the parties before granting them relief in divorce cases.
Section 28 of the Special Marriage Act provides that when the divorce is initiated by mutual consent of parties, then the relief can be granted by the courts only after expiry of 6 months. The idea behind this is to give an opportunity to the parties to reconcile.
BaljinderKaur 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. SunitaPuri
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 should not be viewed as a dispute where parties aim to defeat the other, but instead should be viewed as a holy institution wherein parties need to be brought to an amicable solution whenever dispute 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 promise, and will definitely strengthen the system’s capacity to deliver justice.Mediation and Conciliation must be made compulsory in family disputes as it would help preserve the institution of marriage to some extent and will also divert the court’s approach to prefer settlement.
There is a need to give more authority to family courts wherein all the family disputes are attempted to be solved by family courts through conciliation and mutual settlement. Also, more family courts must be established so that family courts are sufficient enough to resolve all such cases and the burden of higher judiciary is lessened.
The changes and progress in the society have also brought about changes in the legal system. It reflects that there are constant efforts to attempt to bring solutions to various legal problems. Marriage in India is considered as a sacred institution wherein parties must make efforts to come to an amicable solution and preserve the institution of marriage. Alternative resolution methods like mediation and conciliation help in a unique resolution of disputes and helps preserve relationships. India sill needs to promote the existing dispute resolution methods and its implementation in India. Reforms must be made in the existing legislations so as to make this system mandatory and more effective in resolving family disputes.
The Family Courts Act, Act No. 66 of 1984 , Preamble.
Anil Malhotra and RanjitMalhotra, Alternative dispute resolution in Indian family law – realities, practicalities and necessities, IAFL, https://www.iafl.com/media/1129/alternative_dispute_resolution_in_indian_family_law.pdf.
BaljinderKaur v. Hardeep Singh, AIR 1998 SC 764.
Love Kumar v. SunitaPuri, AIR 1997 Punjab and Haryana 189: 1997(1) HLR 179.
Mohinder Pal Kaur V/s. Gurmeet Singh, 2002 (1) Hindu LR (Pb&Hry) 537.
Supra note 4.