DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

2020

FINAL DRAFT

Family Law I
“Matrimonial Disputes Alternative Methods”

Submitted to: Submitted by:

Mrs. Samreen Hussain Aryan Singh

Asst. Professor Roll No 190101036

Family Law Section A

Dr. Ram Manohar Lohiya National Law University Dr. Ram Manohar Lohiya

National Law University

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 ACKNOWLEDGEMENT

This project deals with the Alternative Methods in matters of a Marriage Dispute and was
made keeping in mind that even today many broken marriages are still a reason for parties to
suffer in India with the apprehensions of parties to approach the courts. In the process of
making this project the main question to be addressed is ‘Is there an alternate to resolution of
a marriage by the court?’ and if there is any then how it works. In the pursuance of this
question being answered this paper sought help from various online resources such as the
SCC Online, Law Chronicles, and articles present in the database of the University library.
The main part in making this paper possible was the professor and the seniors who gave the
support and help needed in the research work needed in this project.

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 TABLE OF CONTENTS

INTRODUCTION…………………………………………………………………………4
ADR METHODS TO MARRIAGE DISPUTES………………………………………….5
ANALYSIS………………………………………………………………………………..9
CONCLUSION……………………………………………………………………………11
BIBLIOGRAPHY………………………………………………………………………….12

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 INTRODUCTION
This paper deals about how the matrimonial disputes can be solved in alternate ways without
going through court proceedings and also how these alternate methods are more effective and
dignified.

Marriage is a sacred institution. it is the very foundation of a stable family and civilized
society. It accords status and security to the parties and their offspring. When a wedding takes
place between two individuals, they bring in different goals into the marriage.

Due to unfulfilled needs and desires, matrimonial disputes occur which can ruin one’s life
and can’t be restored again very quickly. Marital conflicts are inevitable.

The use of the Alternative Dispute Resolution has been thriving well in the areas of
shortcomings of litigation. For the purpose of this research, collaborative divorce, divorce
mediation and divorce arbitration, mediation are the only alternatives examined. Employing
these alternatives in marriage disputes is more dignified way of making couple, their children
and their finances emerge healthy. This is because emotions are properly taken care of;
parties discuss their issues in a friendly atmosphere rather than employing an adversarial
approach as witnessed in litigation. These and many more are obvious indications that
alternative dispute resolution has been covering up for litigation in the latter’s areas of
shortcomings.

OBJECTIVES AND RESEARCH

METHODOLOGY

OBJECTIVES

 To demonstrate the alternate methods to resolve marital disputes rather than going to
courts.
 To describe the benefits of alternate methods to resolve marital disputes.

RESEARCH METHODOLOGY

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The study of this project shall involve doctrinal research methodology. Study of this project
will be done through books, articles, journals and internet database. The main content of this
paper was based on the in-depth study of the statutes governing them in Indian legal system.

ADR METHODS TO MARRIAGE DISPUTES

The word alternative means something that can be used instead of something else. As earlier
noted, there are some shortcomings found for adjudication in resolving marriage disputes and
these shortcomings serve as propellers to finding substitutions. The difficulties posed by
litigation to the litigants in gaining access to justice, coupled with the overburdened courts
with little facilities to attend to matters with the deserved alacrity; formalism, legalism and
excessive costs, are some other factors that have led to the quest for alternatives to the
traditional court system (litigation). Since the court process seems to be cruel, anachronistic
and hypocritical1, there had to be a better way out. Various, alternatives have truly come up
and are applied to issues ranging from business to matrimony. This chapter examines three
alternatives/ADR methods which are mediation collaborative divorce, divorce mediation and
divorce arbitration. The Supreme Court in the Gaurav Nagpal v. Sumedha Nagpal2 case
(2009) emphasised that efforts should be made to bring about conciliation to bridge
communication gaps to prevent people from rushing to courts.

MEDIATION
The two individuals contemplating divorce could seek jointly the help of one or more
"mediators" to help the couple to arrange amicably for a settlement of all of the issues with
which they find themselves confronted.

The couple involved in the divorce mediation may need more than one mediator to help them
arrive at a mutually acceptable agreement. Different people have different needs. One's
emotional or social issues are best handled by mental health mediators such as psychiatrists,
psychologists or social workers. Financial issues are best dealt with by specially trained

1
Stephen M. C., Divorce Reform in England: Humbug and Hypocrisy or Smooth Transition, in Michael
Freeman(ed), Divorce: Where Next? Dartmouth Publication Ltd. Pg. 41.
2
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 S.C.C. 4.

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mediators such as accountants, financial planners and possibly lawyers. Legal issues are best
dealt with by attorney-mediators.

This "mediation team approach" effectively enables a couple to have what might be called a
successful or positive divorce. Whatever particular problem or issue needs resolving by the
couple can be worked on by the expert-mediator most particularly suited to that type of
problem.

At every stage of this mediation proceeding, each party can be advised by their respective
attorneys of their rights and the ramifications of each decision. In this way, the adversarial
nature of the litigation process can be avoided, and the client can be "represented" by separate
attorneys at every step. This model may be the best since it is the best of both worlds; the
clients are moving forward in as amicable a way as possible, and their "conflicting interests"
(if any) are being carefully monitored by their respective attorneys.3

COLLABORATIVE DIVORCE
Collaborative divorce (also called collaborative law, collaborative practice and collaborative
family law) is a voluntary and facilitative family law process, enabling couples who have
decided to end their marriage, to work with their lawyers and other family professionals, in
order to achieve a settlement that best meets the specific needs of both parties and their
children, thus, avoiding the uncertain outcome of the court. This process is initiated when
couples voluntarily sign a contract (Participation Agreement) binding each other to the
process and disqualifying their lawyers to represent either of them in any future family
related litigation.4

ARBITRATION
Divorce arbitration can be described as a mini-trial or an informal litigation wherein
divorcing couples select a neutral third party, called an arbitrator, with family law experience
to hear their case and gives a final decision (award) having heard from both sides. 5 The
parties and their attorneys are free to select an arbitrator (or arbitrators) of their choice, thus
assuring each party and their attorneys that the best possible person to make the decision will

3
www.scribd.com/doc/88628019/Matrimonial-Disputes-Alternative-Remedies
4
Collaborative Law History, <http://www.collaborativedivorce.net/history-of-collaborative-divorce/ >
5
http://www.singhania.com/arbitration-dispute-resolution-india/

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be chosen. There are many organizations that maintain lists of available arbitrators (as well as
mediators) who are either retired judges or noted mediators and arbitrators.

The decision of a divorce arbitrator may be either binding or non-binding, depending on what
the parties choose. If the couples elect that the decision be binding, that decision will then be
made into a formal judgment. If the parties elect that that the decision be non-binding or
advisory, the parties can either accept or reject the decision of the arbitrator. If they accept the
decision, an agreement to that effect will be entered into and decision will be made into a
formal judgment. If either party or both parties later reject the decision on grounds that the
arbitrator is partial and that the decision is made wrongly, an appeal can be filed in the court
of law. But if the end result is the same as the first decision or is more favourable to the other
spouse, the spouse who appeals may be ordered to pay the other’s costs. Arbitrators, like
mediators, are often called upon when the divorce proceeding in court derails because the
parties cannot agree on one or more issues such as who should pay children’s maintenance or
who should be responsible for their custody.

NEGOTIATION
Generally, negotiation is an interchange between two or more parties in an attempt to reach a
compromise. Negotiation is at the core of most Alternative Dispute Resolution (ADR)
processes.6 In resolving matrimonial disputes, this appears to be the best method in that there
is no intervention or influence of a third party between the spouses during conflict settlement.
They are free to express themselves and place their demands on the negotiation table. No rule
is required.

Negotiation is the principal way by which spouses can redefine an old relationship that is not
working to their satisfaction or establish a new relationship where none existed before.
Because negotiation is such a common problem-solving process, it is in everyone's interest to
become familiar with negotiating dynamics and skills. There are various advantages for
choosing to negotiate. Some of the most common advantages are that it is easier and faster
than litigation; the process is informal and allows parties full participation in reaching an
agreement.7

MARRIAGE COUNSELLING
6
http://www.adrservices.org/conciliation.php
7
https://blog.ipleaders.in/matrimonial-dispute-settling/

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Marriage Counselling is also an excellent way to figure out what to do. The marriage
counsellor will ask questions that help one think more clearly about what is going on and
what he/she wants. The marriage counsellor will help the parties to communicate better with
each other and provides innovative ways to resolve conflicts. Divorce is a potential minefield
regarding the impact it can have on the parties, their children and their extended families.
Counselling should be one method to overcome the problem of matrimonial disputes as the
study showed that after counselling, couples became more confident and had a greater sense
of responsibility. Divorce counselling is often a useful means of ending the marriage
peacefully, and is usually encourage when one of the parties, typically the non-initiator of the
divorce, requests marriage counselling. In divorce counselling, the initiator is provided with a
safe setting to tell the other spouse why her decision is irrevocable. And the spouse gets a
safe place to tell the initiator his feelings about the divorce and the relationship. An
experienced counsellor can help to keep the discussion off guilt and blaming and help the
couple conclude that the marriage, however disappointing, is over.8

8
https://blog.ipleaders.in/matrimonial-dispute-settling/

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 ANALYSIS
ADR has been both; increasingly used alongside, and integrated formally, into legal system
inter-nationally in order to capitalize on the typical advantages of ADR over litigation:

 Suitability for multi-party disputes

 Flexibility of procedure - the process is determined and controlled by the parties
 Lower costs
 Less complexity ("less is more")
 Parties choice of neutral third party (and therefore expertise in area of dispute) to
direct negotiations /adjudicate
 Likelihood and speed of settlements
 Practical solutions tailored to parties’ interests and needs (not rights and wants, as
they may perceive them)
 Durability of agreements
 Confidentiality
 The preservation of relationships and the preservation of reputations.9

Many disputes have been settled recently through the resort to ADR and the fact is not in
doubt that Alternative Dispute Resolution Mechanism (ADRM) is fast becoming the best
method not only as a complementary or alternative mechanism to litigation but also as the
best strategic method of resolving certain private disputes which matrimonial causes is first.

ADR processes tend to be less adversarial and more casual than the traditional court setting,
and may encourage and facilitate early settlement. With mediation and collaborative family
law, the spouses (along with their solicitor have an opportunity to play an active role in
resolving key decisions related to the divorce, instead of having a third party make those
decisions. Rarely used in divorce cases, arbitration is a more structured ADR option, in which
a neutral third-party makes decisions after hearing both spouses' evidence and arguments.
The arbitrator's decision in a divorce case is not necessarily final, and the parties may still be
able to resolve key issues before a court at a later date. Divorcing couples should be required
to attempt some form of ADR before proceeding in court, so it is a good idea to understand
the options.

9
https://www.scribd.com/doc/88628019/Matrimonial-Disputes-Alternative-Remedies

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Avoiding court is a common goal of many clients. Not only can it be expensive and time
consuming, but it can also be emotionally exhausting and do further damage the parties'
relationship particularly when they need co-parent. Being prepared for court ensures that a
client will always give themselves the best chance at a favourable outcome to their case, but
that does not mean a case may not be better served by staying out of court.10

"Alternative dispute resolution" is a phrase more commonly heard in civil and commercial
litigation cases, but the same principles apply in family court. It describes a category of
methods for keeping cases out of court and away from traditional litigation. The advantages
being that the parties have more control over the time-frame, costs, and legal issues being
addressed in their case.

The Supreme Court in the Gaurav Nagpal vs. Sumedha Nagpal 11 case (2009) emphasised that
efforts should be made to bring about conciliation to bridge communication gaps to prevent
people from rushing to courts.

CONCLUSION
10
http://www.mondaq.com/unitedstates/x/296758/divorce/Avoiding+Court+Four+Alternative+Methods
11
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 S.C.C. 4.

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Conflict cannot be averted it can only be resolved. This is because conflict is an integral
element of human relationship. Every relationship goes through ups and downs along with
the cycles of life like children, occupations, economic realities of the day. Thus, parties to
matrimonial conflict/disputes should be more concerned about the problem/cause of
matrimonial dispute and seek to resolve them rather than expanding the scope of an issue by
opting for litigation.

The law, practice and litigation today has been compelled by necessity to pave way for the
intervention of Alternative Dispute Resolution. Since the aim of law is to seek justice by
settling disputes between litigants, I think the time has come to embrace the concept of no
victor no vanquished which ADR has brought. We cannot continue to depend on court’s
decision on every matter especially where private and commercial disputes are involved.
Societal integration and relationship would only be enhanced if ADR is upheld.

BIBLIOGRAPHY
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 http://www.mondaq.com/unitedstates/x/296758/divorce/Avoiding+Court+Four+Alter
native+Methods
 https://blog.ipleaders.in/matrimonial-dispute-settling/
 http://www.adrservices.org/conciliation.php
 Collaborative Law History, http://www.collaborativedivorce.net/history-of-
collaborative-divorce/
 http://www.singhania.com/arbitration-dispute-resolution-india/
 Stephen M. C., Divorce Reform in England: Humbug and Hypocrisy or Smooth
Transition, in Michael Freeman(ed), Divorce: Where Next? Dartmouth Publication
Ltd p 41.

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