i

Alternative Dispute Resolution Project

ON

ADR in Family Disputes

SUBMITTED TO:

Ms. Adya Pandey

Faculty,ADR
SUBMITTED BY:

Hemant Verma

Roll no. 58

SECTION A

SEMESTER VI, B.A. LLB(HONS.)

SUBMITTED ON:

February 15, 2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

 ii

Declaration
I, Hemant Verma, of Semester VI, Section A, declare that this project submitted to H.N.L.U.,
Raipur is an original work done by me under the able guidance of Ms. Adya Pandey Faculty,
ADR. The work is a bona fide creation done by me. Due references in terms of footnotes have
been duly given wherever necessary.

Hemant Verma

Roll No. 58

Section A, Semester VI
 iii

Acknowledgements
I feel highly elated to work on the project “ADR in Family Disputes”. Firstly I express my
deepest gratitude towards Ms. Adya Pandey, Faculty, ADR to provide me with the opportunity to
work on this project. His able guidance and supervision were of extreme help in understanding
and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Hemant Verma

Roll No. 58

Section A, Semester VI
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Contents
1. Declaration ii
2. Acknowledgements iii
3. Introduction 1
4. Research Methodology 3
4.1 Methodology 3
4.2 Objectives 3
4.3 Scope of the Study 3
4.4 Organisation of the Study 4
5. Alternative dispute resolution 4
6. Need and purpose of ADR in India 6
7. Family Disputes 8
8. ADR in Family disputes 9
9. Status of ADR in Family disputes in India 12
10.Conclusion 14
11. References 16
 1

Introduction
Nothing is static, everything is dynamic. Due to evolution of time everything changes viz.,
process, tradition, way of living etc. The concept of dispute was very old and still in vogue.
Alternate Dispute Resolution system is not a new phenomenon for the people of this country; it
has been prevalent in India since time immemorial.
Ancient system of dispute resolution made a significant contribution, in reaching resolution of
disputes relating to family, social groups and also minor disputes relating to trade and property.
Village Level Institutions played the leading role, where disputes were resolved by elders in their
particular caste or kula and panchayat system, which was an informal way of mediation. In
earlier days disputes hardly reached courts. Decisions given by the elderly council were
respected by all.
The delay in justice dispensation, particularly in commercial and family disputes, causes great
hardship and financial loss to the parties. In order to reduce delays in resolution of disputes, the
Governments and the Judiciary are encouraging settlements or counseling techniques or
conciliation which are part of ADR.
The need to establish the Family Courts was first emphasized by the late Smt. Durgabi
Deshmukh. After a tour of China in 1953, where she had occasion to study the working of
family courts, Smt. Deshmukh discussed the subject with Justice Chagla and Justice
Gajendragadkar and then made a proposal to set up Family Courts in India to Prime Minister Pt.
Jawahar Lal Nehru. Even after reformative legislation was enacted, implementation of reformed
laws left much to be desired. Though the women of India demanded establishment of Family
Courts in 1975, the Government of India took ten years to pass the necessary legislation. The
Law Commission in its 59th report (1974) has 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 made reasonable efforts at settlement before the
commencement of the trail. 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.
The need was therefore, felt, in the public interest, to establish family courts for speedy
settlement of disputes.
 2

Research Methodology

Methodology:

This Research Project is descriptive and analytical in nature. Accumulation of the information on
the topic includes wide use of primary sources such as cases as well as secondary sources like
books, e-articles etc. The matter from these sources have been compiled and analysed to
understand the concept.

Websites, dictionaries and articles have also been referred.

The structure of the project, as instructed by the Faculty of ADR has been adhered to and same
has been helpful in giving the project a fine finish off.

Objectives:

The objectives of the current project are:

1. To understand the concept of Alternative dispute Resolution.

2. To find out need and purpose of ADR in India.
3. To analyze the status of ADR in Family disputes.

Scope of the Study:

The current project attempts to find out, analyze and critique the situation of ADR methods in
Family disputes in India. This project mainly focuses on the Mediation and conciliation used in
resolution of family disputes.
 3

Organization of the Study:

This project report has been organized into five sections. The first section deals with the
introduction along with the Research methodology employed in preparation of this project. The
second section comprises of the concept of Alternative dispute resolution. The third section deals
with the need and purpose of ADR in India. The fourth section deals with ADR in Family
disputes. Lastly the fifth section deals with the Conclusion to this project.
 4

Alternative Dispute Resolution

The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of
dispute resolution mechanisms that are short of or alternative to, full-scale court processes,
established by the Sovereign or the State. The term can refer to everything from facilitated
settlement negotiations in which disputants are encouraged to negotiate directly with each other
prior to some other legal process, to arbitration systems or mini trials that look and feel very
much like a courtroom process. It included arbitration, as also conciliation, mediation and all
other forms of dispute resolution outside the courts of law, which would all fall within the ambit
of ADR.

Alternative dispute Resolution methods are being increasingly acknowledged in the field of law
and commercial sectors both at National and International levels. Its diverse methods can help
the parties to resolve their disputes at their own terms cheaply and expeditiously. Alternative
dispute Resolution techniques are in addition to the Courts in character. Alternative dispute
Resolution techniques can be used in almost all contentious matters, which are capable of being
resolved, under law, by agreement between the parties. Alternative dispute Resolution techniques
can be employed in several categories of disputes, especially civil, commercial, industrial and
family disputes.1 From the study of the different alternative dispute Resolution techniques in the
proceeding chapters it is found that, alternative dispute Resolution methods offer the best
solution in respect of commercial disputes where the economic growth of the Country rests.

Disputes resolution is an indispensable process for making social life peaceful. Dispute disturbs
the integration of the group and since social stability is required for the social order, in every
society efforts have been made to bring about resolution of conflict between antagonistic groups.
Disputes resolution process tries to resolve and checks conflicts, which enables persons and
group to maintain co-operation. It can thus be alleged that it is the sine qua none of social life
and security of the social order, without which it may be difficult for the individuals to carry on
the life together.2

1
Hindu Marriage Act 1955, Industrial Disputes Act 1947, The Code Of Civil Procedure, The Family Courts Act 1984
2
Park and Burgess, Introduction to the science of Sociology.
 5

ADR facilitate parties to deal with the underlying issues in dispute in a more cost-effective
manner and with increased efficacy. In addition, ADRs provide the parties with the opportunity
to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in
a peaceful manner, and achieve a greater sense of justice in each individual case. The resolution
of disputes takes place usually in private and is more viable, economic, and efficient.

ADR is not a recent phenomenon as the concept of parties settling their disputes themselves or
with the help of third party, is very well-known to ancient India. Disputes were peacefully
decided by the intervention of Kulas (family assemblies), Srenis (guild so men of similar
occupation), Parishad, etc., the primary object of ADR movement is avoidance of vexation,
expense and delay and promotion of the ideal of “access of justice” for all.

ADR system seeks to provide cheap, simple, quick and accessible justice. Under this, disputes
are settled with the assistance of third party; where proceedings are simple and are conducted, by
and large, in the manner agreed to by the parties. So, precisely saying, ADR aims at provide
justice that not only resolves dispute but also harmonizes the relation of the parties.
 6

Need and Purpose of ADR in India

The growth of A.D.R in the last few decades on the one hand reflects disenchantment with the
formal justice system characterized by delays and on the other an effort to promote a less formal
dispute resolution mechanism. This development is not the outcome of any juristic philosophy.
Rather it was necessitated by the growth of commercial litigation needing speedy resolution, by
the ever increasing volume of court work, by court dockets becoming heavier and by the
judge/case ratio becoming imbalanced on account of limited resources.

In a developing country like India with major economic reforms under way within the
framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden
on the courts and to provide means for expeditious resolution of disputes, there is no better
option but to strive to develop alternative modes of dispute resolution (ADR) by establishing
facilities for providing settlement of disputes through arbitration, conciliation, mediation and
negotiation. In this context the legendaries of various fields i.e., commercial, administrative and
legal unanimously constituted an institution to be called “International Centre for Alternative
Dispute Resolution-ICADR. This institution was established in Delhi on 31st May, 1995 and
registered under the Society Registration Act, 1960. It is an autonomous non-beneficial
institution. The chief object of this institution is to inculcate and expand the culture of alternative
dispute resolution.

In essence the system of ADR emphasizes upon:

• Mediation rather than winner take all.

• Increasing Accessibility to justice.

• Improving efficiency and reducing court delays.

The Constitution of India through Article 14 guarantees equality before the law and the equal
protection of the laws. Article 39A of the Constitution mandates the State to secure that the
operation of the legal system promotes justice on a basis of equal opportunity, and ensure that
the same is not denied to any citizen by reason of economic or other disabilities. Equal
opportunity must be afforded for access to justice. Law should not only treat all persons equally,
but also the law must function in such a way that all the people have access to justice in spite of
 7

economic disparities. The expression “access to justice” focuses on the following two basic
purposes of the legal system.

• The system must be equally accessible to all.

• It must lead to results that are individually and socially just.

It is one of the most important duties of a welfare state to provide judicial and non-judicial
dispute-resolution mechanisms to which all citizens have equal access for resolution of their
legal disputes and enforcement of their fundamental and legal rights. Poverty, ignorance or social
inequalities should not become barriers to it. The workload of Indian Judiciary increased by
leaps and bounds and has now reached a stage of unwieldy magnitude, which has in fact led to a
large backlog of cases. Due to this ADR has become the need of the hour for Indian Judiciary.
 8

Family Disputes
Family is a group of people affiliated by consanguinity, affinity or co-residence.3 A family
produces and reproduces persons biologically and socially and is the primary economic and
political unit of the society. Contemporary society generally views family as a haven from the
world, supplying absolute fulfillment. The family is considered to encourage intimacy, love and
trust where individuals may escape the competition of dehumanizing forces in modern society
from the rough industrialized world. The family now supplies what is “vitally needed but
missing from other social arrangements”, that is social security.

The Family Courts Act explains family disputes4 as:

1. a suit or proceeding between the parties to a marriage for decree of a nullity marriage
(declaring the marriage to be null and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of marriage;

2. A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial

status of any person;

3. A suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them;

4. A suit or proceeding for an order or injunction in circumstances arising out of a marital

relationship;

5. A suit or proceeding for a declaration as to the legitimacy of any person;

6. A suit or proceeding for maintenance;

7. A suit or proceeding in relation to the guardianship of the person or the custody of, or access
to, any minor.

3
Family, available at http://en.wikipedia.org/w/index.php?title=Family&oldid=349111428
4
Section 7 of The Family Courts Act, 1984.
 9

ADR in Family Disputes

Mediation/Conciliation:

Litigation does not always lead to a satisfactory result. It is expensive in terms of time and
money.5Its adversarial nature does not change the mindset of the parties and 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.

Maintenance of peace and harmony is the paramount consideration in resolving the family
disputes. Conciliation and mediation are old institutions and indeed they are deeply rooted in
social tradition of many societies, particularly in Asian culture and values. In India, family
disputes were resolved by the elders of the family who acted as conciliators or mediators. Even
today, elders of the family and in villages, the elder persons of the village have such a role.
Panchayats also perform a similar function, and are preferred by villagers over courts due to their
easy accessibility and prompt dispute resolution.6 The philosophy behind ADR is amicable
dispute resolution and mediation is one such process that provides a space to the parties to sit
down and focus on what they really want, rather than think what they need to seek or what the
law will let them fight for.

Mediation is defined in Black’s Law Dictionary as “a private, informal dispute resolution process
in which a neutral third party, the mediator, helps disputing parties to reach an agreement.”
Family dispute mediation is a process in which a mediator, an impartial third party, facilitates the
resolution of family disputes by promoting the participants’ voluntary agreement. The family
mediator assists communication, encourages understanding, and focuses the participants on their
individual and common interests. The family mediator works with the participants to explore
options, make decisions, and reach their own agreements.

Thus the family mediator assists the participants to gain a better understanding of their own
needs and interests and of the needs and interests of others. References to mediation/conciliation

5
“The formal dispute resolution process is procedure oriented and therefore consumes a lot of time and money.
ADR offers flexibility of procedure and thus saves time and money.”
6
Dr. M.K., J., “Conciliation and Mediation”, available at http://delhimediationcentre.gov.in/articles.htm.
 10

in family dispute resolution can be found in the Family Courts Act, 1984, Civil Procedure Code,
Hindu Marriage Act and the Legal Services Authorities Act, 1987 that recognises and gives a
special status to Lok Adalats that have been very effective in mediating family disputes. The
Family Courts Act was enacted with a view to promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and family affairs and for matters connected
therewith.7

Conciliation, speedy settlement, non-adversarial approach, multi-disciplinary strategy to deal

with family disputes, informal and simple rules of procedures and gender justice are supposed to
be the cornerstones of the philosophy of the Family Courts.8 The whole structure of family courts
rests on the twin pillars of counselling and conciliation. The counsellors are required to not only
provide counselling but to bring about reconciliation and mutual settlement whenever feasible.
Section 9 (1) of the Family Courts Act states that “In every suit or proceeding, endeavour 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.”

While Section 9(2) directs the family court to adjourn the proceedings if it appears that there is a
reasonable possibility of settlement between the parties for such period as it thinks fit is
necessary for taking the required measures for bringing about the settlement. These provisions
however do not make mediation/conciliation compulsory.

Section 23 (2) of the Hindu Marriage Act, 1955 which contains similar provisions provides
that 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 provided that nothing contained in this subsection shall apply to any proceeding wherein
relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v),
clause (vi) or clause (vii) of sub-section (1) of section 13.

7
Preamble, The Family Courts Act, 1984.
8
Jamwal, N., “Have Family Courts lived up to expectations”
 11

Similarly Section 89 of the Civil Procedure Code (Amendment) Act, 19999, directs the courts
to identify cases where an amicable settlement is possible, formulate the terms of such a
settlement and invite the observations thereon of the parties to the dispute. Where the Court
comes to the conclusion that mediation is the appropriate mode of settlement, it may itself act as
a mediator and “shall effect a compromise between the parties”.10 The language of this section is
mandatory in nature and it makes mediation compulsory.

The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts
with a view to promote conciliation in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matter connected therewith by adopting an approach
radically different from the ordinary civil proceedings . Section 9 of the Family Courts Act, 1984
lays down the duty of the family Court to assist and persuade the parties, at first instance, in
arriving at a settlement in respect of subject matter. The Family Court has also been conferred
with the power to adjourn the proceedings for any reasonable period to enable attempts to be
made to effect settlement if there is a reasonable possibility

Mediation/Conciliation is a very effective method of family dispute resolution. It is more

attractive than litigation because it empowers the parties to devise an agreement which meets
their specific needs.11It empowers the parties to choose alternative options which a court may not
offer as a remedy, for example separated couples arguing over custody of their children can
formulate their own unique parenting plans. The emphasis in mediation is to find out a workable
solution unlike adversarial system which focuses on who is right and who is wrong and generally
ends up in bitterness, thereby diversifying the capacity for resolving conflicts in society.

9
Where at the first hearing of the suit the Court ascertains from each party or the counsel whether the parties
admit or deny the allegations of fact as are made in the plaint or the written statement. After referring to the
admissions and denials, the Court shall direct the parties to the suit to opt for either mode of the ADR as specified
in Section 89 (1) i.e. Arbitration and Conciliation, Lok Adalat or Mediation.”
10
“Section 89 lays down that where it appears to the Court that there exists an element of settlement, which may
be acceptable to the parties; the Court shall formulate the terms of settlement and give time to the parties for
their comments.
11
Section 73 of The Arbitration and Conciliation Act, 1996
 12

Analysis of the status of ADR in family law in India

The duty of making or amending laws is on the legislature but to develop it and to interpret it to
suit the needs and circumstances of the society is the call of the judiciary. Hence, unless and until
the beneficial provisions of the matrimonial legislation promoting and advocating reconciliation
in matrimonial disputes in India is favourably interpreted and strictly implemented by the courts,
the letter of law may be an illusory mirage which remains on the statute book only. It is therefore
the solemn duty of the matrimonial courts in India to ensure that the mandatory settlement efforts
are actually put into practice and parties are encouraged to actually utilize them for out-of-court
settlements. Thus, there is a heavy burden on the courts to discharge this solemn duty failing
which it will neither be possible nor useful to enforce reconciliatory measure in matrimonial
disputes in the Indian jurisdiction. Accordingly, it would be most useful to cite and quote some
recent prominent verdicts of superior Indian courts which have stressed and highlighted the dire
necessity of the beneficial provisions of Indian legislation which provide mandatory
reconciliation procedures.

A novel question came up for decision before the High Court of Kerala in Bini v
K.V.Sundaran12- i.e., 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 disorder, venereal diseases and leprosy. Calling the Family Courts Act,
1984 a special statute, and its provisions to make attempt at reconciliation mandatory at the first
instance, the High Court held:

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.

12
AIR 2008 Kerala 84.
 13

The Court further said 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.”
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Conclusion
The philosophy of alternate dispute resolution systems is well made out by Abraham Lincoln’s
famous words: “discourage litigation, persuade your neighbours to compromise whenever you
can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.”
These words spell out grim realty and truth.

Litigation in respect of any matter concerning the family, whether divorce, maintenance and
alimony or custody, trial of juvenile offenders or any other matrimonial cause should not be
viewed in terms of failure or success of legal action but as a social therapeutic problem. It should
not be viewed as a prestigious dispute in which parties and their counsels are engaged in winning
or defeating, but as a societal problem needing resolution. The amicable settlement of family
conflict requires special procedures designed to help people in conflict and in trouble, to
reconcile their differences, and where necessary to obtain professional assistance. Family
disputes need to be seen with a humanitarian approach and hence attempts should be made to
reconcile the differences so as to not disrupt the family structure. Adjudication of family disputes
is an entirely different matter than conventional civil or criminal proceedings. It is a different
culture and has a different jurisprudence altogether.13

The whole society feels the reverberations of a family dispute in society outside the home.
Whereas there already exist some provisions for conduct of arbitration, conciliation and Lok
Adalat in different statutes, the need for a framework to regulate the ADR process as a whole and
mediation in particular has been sought to be fulfilled by the Supreme Court of India. It has done
so by providing the final version of the Model Rules of ADR and the Model Rules of Mediation,
both framed by the Law Commission of India, in its Orders passed in the case of Salem Bar
Association Vs Union of India14with a direction that all high courts should adopt these with such
modifications as they may consider necessary.’

Therefore, the dire pressing need of the day in the current social milieu where 30 million Indians
now live outside India is to create a law and infrastructural machinery for ADR mechanisms in
resolving marriages solemnized in India but which have been fractured or broken abroad.

13
Law of Marriage & Divorce; Paras Diwan, (preface to the 1st Edition) 5th Edition.
14
(2003 (1) SCC 49)
 15

For the lack of resolution, they lead to inter-parental child removal custody conflicts, disputes of
maintenance and differences over settlement of matrimonial property. These cross border marital
conflicts should not stem into or branch out into other ancillary issues multiplying the problem.
This, in my opinion ought to be the focus of the legislative intent today in creating, harmonizing
and balancing the societal structure of Indians, non-resident Indians and all those who form
relationships with them to build families abroad. ADR needs to be developed in a big way for
resolving limping unions.
 16

References
1. Law of Arbitration and Conciliation, Avatar Singh, 2006, Eastern Book Company Ltd.

2. An Introduction to Alternative Dispute Resolution System, Anupam Kurlwal, 2014, 2nd

Edition.

3. Textbook on Arbitration & Conciliation with Alternative Dispute Resolution, 2nd Edn.,
Saharay Madhusudan , Universal Law Publishing Company Ltd.

4. Law Reform Commission Report on Family Courts (LRC 52-1996).

5. Law Commission of India, 222nd Report on Need for Justice-dispensation through ADR
etc, April, 2009.
6. Blaney ―Family Mediation: A Comparative Overview (1999)
7. Alternative dispute resolution and Family law, http://www.onefamilylaw.ca/en/adr/
(accessed 12.02.2017)