DISPUTE RESOLUTION SYSTEM UNDER FAMILY LAWS IN INDIA:

A CRITIQUE

Submitted By
Kunal Meena

1330

SECTION B

National Law University, Jodhpur

In
MARCH 2018

Under The Guidance Of

Mr. Gowthaman Ranganathan

Faculty Of Law

National Law University, Jodhpur (NLU-J)

NH 65, Nagaur Road, Mandore,

Jodhpur-342304 (Rajasthan). India

Word count-3323
 TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... 2

Introduction................................................................................................................................. 2

Recognizing ROle of ADR and CHALLENGES it pose In Various Segments ......................... 4

Counselling/Conciliation ........................................................................................................ 4

Settlement under Statutory Mandates ..................................................................................... 5

1. The Hindu Marriage Act, 1955 .................................................................................... 5

2. The Special Marriage Act, 1954 .................................................................................. 8

4. Code of Civil Procedure, 1908................................................................................... 10

5. Legal service Authorities Act, 1987 .......................................................................... 12

The Role of Mediation .......................................................................................................... 12

The Role of Arbitration ........................................................................................................ 13

Conclusion ................................................................................................................................ 14

INTRODUCTION
The philosophy and the idea behind Alternate Dispute Resolution can be understood in the
words of Abraham Lincoln when he said that litigation should be discouraged and that one
should persuade his/her neighbors to compromise whenever possible. Pointing towards the
misnomer of a win in adjudication, he said that even the individual in whose favour the judge
has adjudicated, is in reality a loser in terms of fee, expenses, cost and time. Further

2
emphasizing upon the undesirable consequences of litigation, Mr. Lincoln opined that no
matter what the conclusion of litigation is, the entire process makes the parties adversaries to
each other, resulting in indelible feeling of animosity. This mindset, even according to him,
can be changed by using ADR mechanism.1 The concept of ADR as we know today is rooted
in traditional religious, ethical and philosophical values that already existed much before its
conception. In India, village panchayat system has been used in a manner somewhat akin to
the mediation process today.2 Here, village panchayats act as mediators as they are venerated
as neutral and impartial individuals. In the case of Sitanna v. MarivadaViranna,3the Privy
Council affirmed the decision of the village panchayat in a family dispute. In this case Sir
John Wallis J. said that referring matters to a panchayat is time tested and it avoids protracted
litigation which could be detrimental to the interests of the parties.4

Mediation being one form of ADR, has also proved facilitative in resolving family disputes.
In Bangalore, 3,642 couples sought Mediation for divorce purposes. 5 This is only the
matrimonial cases. Of the 35,000 odd cases referred to mediation by the family court from
2007 to 2014, more than 20,000 were settled through mediation. This shows that even
advocates and judges themselves suggest for mediation of all types of civil cases especially
family matters6

Multifaceted and multicultural, the billion strong Indian populations coexists in harmony in
the largest democracy of the world. Ensconced within traditions and notions of justice,
personal laws have long since been equated with the edifice of equity and conscience. An era
of codification has brought a lot of changes in the personal laws thus reflecting the changes
developing the modern society. Matrimonial issues have been plaguing the Indian
institutions of family law since the past few decades due to overburdened dockets and

1
‘Alternative Dispute Resolution’ (icadr) http://icadr.ap.nic.in/articles/article_2.html accessed 28 June 2016
2
Anil Xavier, ‘Mediation Is Here To Stay!’(1st edn, Indian Yearbook of International Law and Policy
2009).http://www.arbitrationindia.org/pdf/mediation_tostay.pdf accessed 20th August 2016.
3
Sitanna v MarivadaViranna [1934] PC, 36 AIR (PC).
4
ibid
5
Yathiraju, ‘3642 couples sought Mediation’ The Indian Express (November 15 th, 2015).
<http://www.newindianexpress.com/cities/bengaluru/3642-City-Couples-
SoughtMediation/2015/11/15/article3128999.ece>
6
Yamini P, ‘Mediation to settle the trouble in Family’ Dna India (Bangalore, 22 July 2014)
<http://www.dnaindia.com/bangalore/report-mediation-to-settle-the-trouble-in-family-2004308>

3
multiplicity of litigation. The authors contend that the concept of Alternate Dispute
Resolution (“ADR”), devised to relieve the burdened judiciary, holds true to its principle
even in the matter pertaining to family law. In matters involving tremendous mental agony
and emotional strain, the cruel, anachronistic and hypocritical7 court process increased the
trauma more, and thus a speedy trial became one’s legal right under Article 21.8The rationale
for the said analogy remains that emotional trauma and the consequent mental instability
result in the impairment of effective defense in the courts of law. The author believes that the
Apex Court took the Right to Speedy Trial manifesting fair and reasonable procedure. 9
Marriage is no longer a matter of concern only for the spouses but it is integral to the
functioning of the country, 10 and thus the court has a positive duty to endeavor to bring
reconciliation between the parties. 11 However, in the present politico-social scenario, the
humungous docket of matrimonial disputes in the court have led to a lot of hardships for
already troubled individuals.

RECOGNIZING ROLE OF ADR AND CHALLENGES IT POSE IN

VARIOUS SEGMENTS
Counselling/Conciliation
Conciliation is mending of disagreement and the resolution of conflict between partners.12
Research suggests that counselling reduces tension and hostilities which is deemed
improbable relative to the bitter court contest which is perceived. 13As has been discussed
previously14A non-binding procedure, in which an impartial third party i.e. the conciliator or

7
Stephen M. C., ‘Divorce Reform in England: Humbug and Hypocrisy or Smooth Transition’, in MICHAEL
FREEMAN (ED), DIVORCE: WHERE NEXT? Dartmouth Publication, 2001, p.41
8
HussainaraKhatoon (1) v. Home Secretary, State of Bihar, (1980) 1 SCC 81.
9
For a comment on ADR vis-à-vis Right to Speedy trial, SeeAMALHOTRA& R MALHOTRA, ALTERNATIVE
DISPUTE RESOLUTION IN INDIAN FAMILY LAW – REALITIES, PRACTICALITIES AND NECESSITIES, 2012, p.10as
available onhttps://www.iaml.org/cms_media/files/alternative_dispute_resolution_in_indian_family_law.pdf
[Hereinafter A MALHOTRA]
10
PROFESSOR KUSUM, FAMILY LAW I: FAMILY LAW LECTURES, (Delhi: Lexis Nexis), 3rd ed., 2013, p.417
[Hereinafter PROFESSOR KUSUM]
11
WERNER F MENSKI, HINDU LAW: BEYOND TRADITION AND MODERNITY, 2003, p.443
12
PROFESSOR KUSUM, supra note 10 at p.418
13
Laurence Henderson, Marriage Counseliing in a court of conciliation, 52 JUDICATURE (1969), p.256
14
Kindly see Chapter II of the paper.

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the mediator, assists the parties to a dispute in reaching a mutually satisfactory and agreed
settlement of disputes.15

Settlement under Statutory Mandates

Reconciliation is mandatory under The Hindu Marriage Act, 1955 (“HMA”) and The Special
Marriage Act, 1954 (“SMA”). 16 However, no other Indian matrimonial statutes provide a
statutory mandate to attempt settlement in other cases. 17 Thus, the Author determines the
legislative intent through certain provisions of HMA and SMA. There is no need to re-
emphasize that once the provision of law itself exists on any statute book, the same cannot be
ignored by any of the Courts.18
The author further analyzes the reconciliatory mandate of Family Courts, Legal Service
authorities and the courts governed by the Code of Civil Procedure.19
1. THE HINDU MARRIAGE ACT, 1955
HMA caters to the reconciliation process in a two-pronged approach. Section 23 and 14 are
the newels of HMA that drive the force of reconciliation to remedy the matrimonial disputes
in marriages under the said Act.

Section 23 (3) HMA makes a provision empowering the court on the request of parties or if
the court thinks it just and proper to adjourn the proceedings for a reasonable period not
exceeding 15 days to bring about reconciliation.20 It must be borne in mind that a Hindu
21
Marriage is a sacrament and not a contract. Accordingly, Hindu law advocates
rapprochement and reconciliation before dissolving a Hindu marriage. 22The Supreme Court

15
Justice Dispensation Through Alternate Dispute Resolution System In India, LEGAL INDIAas available on
http://www.legalindia.com/justice-dispensation-through-alternate-dispute-resolution-system-in-india/

17
Professor Kusum, supra note 10 at p.416.
18
As held in Arvind Kumar v NirmalaBharti, MAT.APP.50/2011 (Del HC)
19
Vide Section 89, Code of Civil Procedure, 1908.
20
Section 23 (2) of HMA states that before proceeding to grant any relief under it, there shall be a duty of the
court in the first instance, in every case to make every endeavour to bring about reconciliation between parties
where relief is sought on most of the fault grounds for divorce specified in Section 13 HMA.
21
Even if divorce is sought by mutual consent, it is the duty of the court to attempt reconciliation in the first
instance
22
A MALHOTRA, supra note 4.

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held in Jagraj Singh V/s. Bir Pal Kaur23that ‘Section 23(2) is a salutary provision exhibiting
the intention of he parliament requiring the court ‘in the first instance’ to make every
endeavor to bring about a reconciliation between the parties.’ It further empowered the
Courts to make all attempts to make Section 23(2) 24 a reality. It was exemplified by the
justification given by the Apex Authority for the order passed by the Matrimonial Court for
the husband to be personally present via the issuance of non bailable warrant. The Supreme
Court held that without the parties personally present, Section 23(2) would become ‘nugatory,
ineffective and unworkable, defeating the laudable object of reconciliation in matrimonial
disputes.’25

Section 14 26 was designed to prevent hasty recourse to legal proceedings without the
opportunity of reconciliation. Thus, it is a humble contention that the provision deters the
spouses from initiating divorce proceedings in the first year of marriage. The logic again
being to advocate settlement and reconciliation between parties and avoid hasty divorces.
However, the court is conferred a discretionary power to entertain a petition before the expiry
of one year,27 if it finds on the allegation in the affidavit filed in the support of the petition that
prima facie there is exceptional hardship to the petitioner or depravity on the part of the
respondent28. It presupposes an application for leave of court to present a petition for divorce
before the expiry of one year from the date of marriage. 29 Hence, the statute provides
discretion to the court in entertaining a petition for divorce in the first year of marriage on the
ground of exceptional hardship or exceptional depravity.

23
Jagraj Singh V/s. Bir Pal Kaur, JT 2007 (3) SC 389 [Hereinafter JAGRAJ SINGH CASE]
24
Section 23 (2), HMA states that before proceeding to grant any relief under it, there shall be a duty of the court
in the first instance, in every case to make every endeavor to bring about reconciliation between parties where
relief is sought on most of the fault grounds for divorce specified in Section 13 HMA.
25
¶ 26, JAGRAJ SINGH CASE, supra note 34.
26
Section 14(1) reads as ‘Notwithstanding anything contained in this Act, it shall not be competent for any court
to entertain any petition for dissolution of marriage by a decree of divorce, unless at the date of presentation of
the petition one year has elapsed since the date of marriage.’
27
See Proviso to Section 14(1), Hindu Marriage Act, 1955
28
Gulzar Singh V/s.State of Punjab 1998 (2) HLR 204 (P&H)
29
JANAKI NAIR, WOMEN AND LAW IN COLONIAL INDIA: A SOCIAL HISTORY, 2008, p. 42.

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Section 14(2) HMA 30 lays at an equal pedestal withSection 29, SMA containing similar
provisions with similar bars. Deciding on the importance of making an attempt at
reconciliation at the first instance, a Division Bench of the Calcutta High Court in Shiv Kumar
Gupta v Lakshmi Devi Gupta26found that the compliance with section 23(2) of the Hindu
Marriage Act, 1955 is a statutory duty of the judge trying matrimonial cases. The court in this
case relied upon the decision of the Supreme Court in BalwinderKaur v Hardeep
31
Singh holding that a decree passed without reliance on Section 23(2) cannot be
sustained.32Arguing another tangent, the author would put forth the case of Love Kumar v.
SunitaPuri33where it was held that the matrimonial court had acted in haste to pass a decree of
divorce against the husband for his non-appearance at the time of reconciliation proceedings.
It was held by the court that ajudge should actively stimulate rapprochement process since it is
fundamental that reconciliation of a ruptured marriage is the first duty of the Judge.34The stage
of trial for calling the parties for reconciliation is left to the discretion of the Court. 35The
matrimonial Court is required to call parties and make a genuine effort for their
reconciliation.36
Despite the mandate, it should be reasonably noted that the timing and stage may vary from
the facts and circumstances of the cases. Therefore, the matrimonial court in its wisdom may
fashion and design the stage of attempting matrimonial reconciliation depending on the facts
of each case without causing prejudice to the substantive rights of the parties.37The critical
academic gaze should always be on the mandatory settlement procedures to be followed.

30
Section 14(2), HMA reads as “In disposing of any application under this section for leave to present a petition
for divorce before the [expiration of one year] from the date of marriage, the court shall have regard to the
interests of any children of the marriage and to the question whether there is a reasonable probability of a
reconciliation between the parties before the expiration of the [said one year].”
31
BalwinderKaur v HardeepSingh,AIR 1998 SC 764
32
¶ 8, Ibid.
33
Love Kumar v. SunitaPuri,1997(1) HLR 179.[Hereinafter LOVE KUMAR CASE]
34
¶ 19, LOVE KUMAR CASE, Ibid.
35
¶ 21, LOVE KUMAR CASE, Ibid.
36
¶ 19, LOVE KUMAR CASE, Ibid.
37
A MALHOTRA, supra note 4 at p.27.

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 2. THE SPECIAL MARRIAGE ACT, 1954
Section 34(2)38 and 34(3)39 of the SMA are paramateria to Section 23 of the HMA. Though
the marriage under SMA cannot boast of the same sacramental purity of the one under HMA,
the provisions of reconciliation have been legislated as the same by the Indian parliament.
The rationale for it could be that sacramental or not, the union of two people should not be let
go to demolition lest the gravest of circumstances.

3. FAMILY COURTS ACT, 1984

The Legislative intent behind the establishment of family courts was to promote conciliation
in, and secure speedy settlement of disputes relating to marriage and family affairsandrelated
matters.40The endeavor of the Family Courts Act was tomake it obligatory on the part of the
Family Court to endeavour, in the first instance to effect a reconciliation or a settlement
between the parties to a family dispute41while providing for the association of social welfare
agencies, counsellors, etc., during conciliation stage and also to secure the service of medical
and welfare experts.42It also envisaged that lawyers may not be employed as a matter of right
but only as if the court deemed it fit in the eyes of justice,43 however the litigant process has
trampled upon the sanctity of the family courts. 44 Several associations of woman, other
organizations and individuals have urged, from time to time, that Family Courts be set up for
the settlement of family disputes, where emphasis should be laid on conciliation and achieving
socially desirable results and adherence to rigid rules of procedure and evidence should be
eliminated.45

38
Section 34(2) reads as ‘Before proceeding to grant any relief under this Act it shall be the duty of the court in
the first instance, in every case where it is possible so to do consistently with the nature and circumstances of
the case, to make every endeavour to bring about a reconciliation between the parties’
39
Section 34(3) reads as ‘For the purpose of aiding the court in bringing about such reconciliation, the court
may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a
reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this
behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to
the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the
proceeding have due regard to the report’
40
Preamble, Family Courts Act, 1984
41
Section 2(e), Statement of Objects and Reasons, Family Courts Act, 1984.
42
Section 2(f), Statement of Objects and Reasons, Family Courts Act, 1984.
43
Section 2(g), Statement of Objects and Reasons, Family Courts Act, 1984.
44
See generallySusilaNaik v Judge Family Court Rourkela, LAWS(ORI)-1997-2-19
45
Commentary on Statement of Objects and Reasons as cited fromP.K. Das, Protection of Women from
Domestic Violence, 4th ed., (Delhi: Universal Publishing House) 2011, p.89

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The Law Commission had also stressed that in dealing with disputes concerning the family the
court ought to adopt an approach radically different from that adopted in ordinary civil
proceedings and that it should make reasonable efforts at settlement before the
commencement of the trial.46 The Code of Civil Procedure was amended in 1976 to provide
for a special procedure to be adopted in suits or proceedings relating to matters concerning the
family.47 However, not much use has been made by the courts in adopting this conciliatory
procedure and the courts continue to deal with family disputes in the same manner as other
civil matters and the same adversary approach prevails. The need was, therefore, felt, in the
public interest, to establish Family Courts for speedy settlement of family disputes. The
Supreme Court further held in BaljinderKaurvHardeep Singh48that stress should always be on
the preserving the institution of marriage since it is the requirement of
law.Moreover,forsettlement of family disputes, emphasis should be “laid on conciliation and
achieving socially desirable resultsand eliminating adherence to rigid rules of procedure and
evidence.”49The Civil Courts should follow the objects and principles stated in the Family
Courts Act, 1984 when trying matrimonial disputes. 50 The Supreme Court held that the
objectives and principles of section 23 of the Hindu Marriage Act, 1955 govern all courts
trying matrimonial matters.51

The mandate of reconciliatory course of Action is given in the Family Courts Act, 1984. 52To
exemplify the mandate of the Family Courts, the rationale put forth by the Kerala High Court
in BinivK.V.Sundaran53 comes to the forefront. The question of law before the court was
whether conciliation is mandatory after the introduction of the Family Courts Act, 1984, even
on the excepted grounds of conversion to another religion, renunciation of the world, mental

46
59THREPORT OF THE LAW COMMISSION ON HINDU MARRIAGE ACT, 1955 AND SPECIAL MARRIAGE ACT, 1954,
(March 1974), p.72
47
NATIONAL COMMISSION FOR WOMEN, REPORT ON WORKING OF FAMILY COURTS IN INDIA, p.1 as available on
http://ncw.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf
48
BaljinderKaurvHardeep Singh, AIR 1998 SC 764[Hereinafter BALJINDERKAUR CASE]
49
¶ 9, BALJINDERKAUR CASE, Id.
50
¶ 10, 11, BALJINDERKAUR CASE, Id.
51
¶15,BALJINDERKAUR CASE, Id.
52
See Section 9, Family Courts Act, 1984
53
BinivK.V.Sundaran,AIR 2008 Kerala 84. [Hereinafter K.V. SUNDARAM CASE]

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 disorder, venereal diseases and leprosy.54 The High court holding Family Courts Act to be a
special statute held55
‘The parties can disagree on matters of faith and still lead a happy marital life if
they could be convinced that matters of faith should not stand in the way of union of
hearts. Thus though under the Hindu Marriage Act, 1955, no endeavor for
reconciliation need be made in a petition for divorce on the ground of conversion to
another religion, or other grounds excepted under Section 13 (1) of the Hindu
Marriage Act, 1955 or on similar or other grounds available under any other law
also, after the introduction of the Family Courts Act, 1984, the Family Court is
bound to make an endeavor for reconciliation and settlement. The requirement is
mandatory. That is the conceptual change brought out by the Family Courts Act,
1984 which is a special statute.’

The Court further held that “the primary object is to promote and preserve the sacred union of
parties to marriage. Only if the attempts for reconciliation are not fruitful, the further attempt
on agreement on disagreement may be made by way of settlement.”56
4. CODE OF CIVIL PROCEDURE, 1908
a. SECTION 8957
With a view to implementing the 129th Report of the Law Commission of India, it was made
obligatory for courts to refer disputes after the issues were framed, for settlement either by
way of arbitration, conciliation, mediation, judicial settlement or through LokAdalat (a
settlement court). It was felt that only after the parties failed to get their disputes settled
through one of the alternate dispute resolution methods, should the litigation proceed further in
the court in which it was filed. Section 89 CPC clearly spells out the statutory modes,
mechanisms, machinery and procedure provided and stipulated for alternative modes of
dispute redressal in all matters of civil litigation in India. These substantive provisions are
procedurally supported by Rules 1A, 1B and 1Cof Order X.

54
A MALHOTRA, supra note 4.
55
¶ 3, K.V. SUNDARAMCASE,supra note 64
56
¶ 7, K.V. SUNDARAM CASE, supra note 64.
57
Inserted by CPC (Amendment) Act 1999 w.e.f. 01.07.2002. The earlier Section 89 CPC which was repealed
by the Arbitration Act, 1940. There now be an independent Arbitration and Conciliation Act, 1996, the law has
been consolidated in that Act and hence the present parallel amendment was necessitated in the CPC in 1999.

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 b. ORDER X
Rules 1A, 1B and 1C were inserted in Order X by the CPC (Amendment) Act, 1999. This
was consequential to the insertion of Section 89 (1) CPC, making it obligatory upon the
courts to refer the dispute for settlement by way of arbitration, conciliation, judicial
settlement including settlement through LokAdalat or mediation. A settlement can thus be
made by adopting any of the said modes specified in the amended Section 89. As per the Rule
1A, the parties to the suit are given an option for settlement of the dispute outside court.
When the parties have exercised their option, it shall fix the date of appearance before such
forum or authority as may be opted by the parties for settlement. As per the Rule 1-B, the
parties are required to appear before such forum or authority opted by them. Rule 1C provides
for the presiding officer of the forum or authority to refer the matter again to the court in case
it feels that in the interest of justice, the forum or authority should not proceed with the
matter.

c. ORDER XXXIIA

It may be pertinent to point out, that all proceedings under the Hindu Marriage Act and the
Special Marriage Act in India are regulated by the provisions contained in the CPC.
Accordingly, in so far suits relating to matters concerning the family are concerned, by an
amendment made in 1976, the Indian Parliament in its wisdom added Order XXXIIA to the
Code of Civil Procedure to provide for mandatory settlement procedures in all matrimonial
proceedings specifically. A reading of the Order clearly establishes the statutory mandate laid
down by the Civil Procedure Code to make an endeavour in the first instance to assist the
parties in arriving at a settlement in a matrimonial cause in any matrimonial proceeding before
a court of competent jurisdiction. Hence, in any suit or proceeding for matrimonial, ancillary
or other relief in matters concerning the family, there is a separate and independent statutory
provision providing for mandatory settlement proceedings. This is over and above the other
statutory provisions applicable.58

58
See generallyAMALHOTRA, supra note 4.

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 5. LEGAL SERVICE AUTHORITIES ACT, 1987
The Legal Services Authorities Act 1987 provides for the setting up of various authorities at
the national, state, district and taluka level. The purpose behind it is to provide easy access to
justice for all. Several legal aid centres have been set up to settle disputes – botth at pre-
litigation as well as at litigation stage. A large number of family and matrimonial disputes are
settled by them without resort to lengthy court proceedings.

The Role of Mediation

Mediation is one of the primary methods of dispute settlement in matrimonial cases.59 The
parties attempt to resolve their differences with the assistance of a neutral third party and the
mediator tries to help the parties to reconcile their differences in an equitable and mutually
acceptable manner.60 At times, it is apprehended that through promises, pressures or threats, a
mediator may create conditions under which an unwilling party allows himself to be forced
into an agreement and unequal parties may ‘unwittingly trade off rights’.

“Most serious drawbacks to mediation in marital disputes seems to arise when the mediator
is so determined to resolve the conflict and reunite the parties that he stops at nothing in
persuading o coercing them. The result is likely to be temporary reconciliation rather than a
true rebuilding of the relationship”61

The statutory duty cast on the matrimonial judge to consider the possibilities of reconciliation
between the parties is also mediatory in nature. The judge holds a meeting with the parties in
his chamber and acts as a mediator. Truly speaking, a judge in an adversarial litigation is not
the right person to mediate. In view of the authority he wields in the entire process, there
could be subtle pressures on the parties and they may feel coerced. As aptly remarked by

59
For a comment on the significance of Mediation in Family Law, See Chapter II of MARIAN ROBERTS,
MEDIATION IN FAMILY LAW DISPUTES: PRINCIPLES OF PRACTICE, 3rd ed.,(Burlington: Ashgate Publishing), 2008
60
Y Shamir, Alternative Dispute Resolution Approaches And Their Application, ISRAEL CENTER FOR
NEGOTIATION AND MEDIATION (ICNM), p. 24
61
Marylys M. Mays, Responsibility of the Law in Relations to Family Stability, 25 INTERNATIONAL &
COMPARATIVE LAW QUARTERLY, (1976), p.421.

12
Eckhoff62, mediating one may weaken the normative basis for a better judgment and perhaps
also undermine confidence in one’s impartiality as a judge.

It was held in K SrinivasRao v D.A. Deepa, 63 that Ifcounselled by an independent and

sensible elder or if the parties were sent to a mediation centre or if they had access to a pre-
litigation clinic, perhaps the bitterness would not have escalated.

Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be
sorted. Mediation as a method of alternative dispute resolution has got legal recognition now.
We have referred several matrimonial disputes to mediation centres. Our experience shows
that about 10 to 15% of matrimonial disputes get settled in this Court through various
mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken
up by the Family Court or by the court of first instance for hearing, it must be referred to
mediation centres. Matrimonial disputes particularly those relating to custody of child,
maintenance, etc. are preeminently fit for mediation. Section 9 of the Family Courts Act
enjoins upon the Family Court to make efforts to settle the matrimonial disputes and in these
efforts, Family Courts are assisted by Counsellors. Even if the Counsellors fail in their
efforts, the Family Courts should direct the parties to mediation centres, where trained
mediators are appointed to mediate between the parties. Being trained in the skill of
mediation, they produce good results.

In another case, the High Court of Allahabad called it the bounded duty of the Family Court
for making an attempt for conciliation before proceeding with the trial of the case.64

The Role of Arbitration

Disputes resolution by arbitration is becoming very popular these days and it is one of the
most important methods for settlement of commercial disputes. In family proceedings,
however, this is not very uncommon. Issues which affect the status of marriage and children
are not favourably viewed as arbitrable issues on the ground of public policy. Parties might be
reluctant to entrust their personal and critics decisions to a private adjudicator. They would

62
T. Eckhoff, The Mediator and the Judge, in AUBERT (ED.) THE SOCIETY OF LAW, 1969, p. 170.
63
¶ 13, K SRINIVASRAO CASE, supra note 67.
64
Rajesh Kumar Saxena v NidhiSaxena.1995(1) HLR 472 2009.

13
prefer to resolve their conflicts and issues pertaining to children by agreement or through the
judicial process, where judged can be expected to apply accepted standards and where a right
of appeal exists.

through the Delhi mediation centre, appreciating the effective manner in which the mediation
centre of the Delhi High Court helped the parties to arrive at a settlement. Thus examples
should be made of these mediation centres and more such centres should be opened all over
the country.

CONCLUSION
The Indian population has not been witness to many situations where the political or the
judicial environment has acclimatized itself perfectly with the changing norms of the society.
However, ADR in matrimonial disputes has been serving the yeoman’s platter by restoring
public faith in the dispute resolution system. As has been characterized by the author in the
paper, the ADR in personal law focuses on their interests conferring upon them the right to
self-determination. 65 Thus, the humble contention of the authors remains that the reforms
suggested be incorporated in the present system for better efficacy and implementation.

65
AbhinavChandrachud, Alternative Dispute Resolution : Is It Always An Alternative?, MANUPATRAas available
on http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=116c966f-2c9d-432e-be91-
d5b1ea5fae50&txtsearch=Subject:%20Arbitration#9

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