About the Author
Adv Ashwin Sunil Kumar is doing LLM in Criminal Law. He is Kerala State Youth Working President at Human Rights Federation.
Introduction
Alternative dispute resolution encompasses a wide range of practices designed to resolve disputes cost-effectively and expeditiously. As the name suggests, ADR is an alternative to the traditional dispute resolution process through the courts. It consists of practices and techniques for out-of-court dispute resolution.
It actively involves the parties themselves in dispute resolution and results in the amicable settlement of disputes. These practices have evolved to resolve disputes in a way that has as little negative impact on the relationship between the parties as possible. The primary ADR methods include negotiation, mediation, conciliation, and arbitration. Another alternative ADR process that exists in India is Lok Adalat, which incorporates many methods such as negotiation, mediation, and conciliation.
Types of ADR Techniques
1. Arbitration
It is a process for the settlement of disputes fairly and equitably through a person or persons or an institutional body without recourse to litigation by the disputing parties according to an agreement. It could be statutory, institutional, contractual, or ad hoc. Arbitration is a procedure where conflicts between parties are resolved by a neutral third party selected by the parties. It is similar to a settlement reached in court, except there are fewer formalities and the parties select the arbitrator. It is available with a well-established, less time-consuming procedure and helps settle a variety of conflicts, including those involving international commerce. At present, arbitration is the only legally binding and enforceable alternative to ordinary court proceedings.
2. Conciliation
This a private, informal process in which a neutral third person helps disputing parties to reach an agreement. To arrive at a mutually agreeable resolution that meets their interests, the parties must first methodically identify the problems at stake in the conflict, devise potential solutions, weigh their options, and seek the advice of a neutral third party or parties. Typically, the conciliator in this process would look into the disagreement on their own and then write a report outlining the conflict resolution process.
3. Mediation
Mediation involves the amicable settlement of disputes between the parties with the help of a mediator. The mediator’s job is to get the parties together so they may work out an amicable settlement of their differences. A mediator would try to persuade the parties to lower their demands to come to a compromise. As a result, the mediator acts as a facilitator to help the disputing parties come to an understanding. Instead of a third person deciding the fate of the parties to the disagreement, mediation emphasises the parties’ responsibilities for making decisions that influence their lives.
4. Negotiation
Negotiation and mediation share many similarities. However, it is primarily renowned for being a procedure used by the opposing parties to settle their disputes amicably. The parties can exchange ideas, identify their grounds of conflict, come up with a solution, and gain each other’s commitment to reaching a mutually agreeable outcome through the negotiation process. (1)
5. Lok Adalat
It denotes the court of people. This forum serves as a place where parties voluntarily attempt to resolve their differences through conciliation and persuasion. It includes the use of conciliation, mediation, and negotiation as strategies to resolve disagreements between parties. The Code of Civil Procedure has bestowed upon Lok Adalats the authority of a civil court.
Every family has problems occasionally that are referred to as family disputes. Similar disputes include those involving property agreements, children’s interests, marital disputes, relationship dissolutions, and disputes between husband and wife.
Family disputes are explained as follows under the Family Courts Act:
• a lawsuit filed by spouses seeking a nullity decree, divorce, judicial separation, or restoration of marital rights.
• a declaratory lawsuit regarding someone’s marital status.
• a lawsuit involving the parties or either of their property that is filed between married partners.
• a lawsuit asking for guidance on what to do if specific situations in a marriage should arise.
• an action seeking a declaration about the validity of any individual.
• a lawsuit for maintenance or financial support.
• a legal action pertaining to a minor’s guardianship or custody. (2)
Family Law Arbitration
Illustration – A husband and wife agree to submit one or more issues pertaining to their current or past relationships as consorts and/or their relationships as parents of the same child or children to a neutral third party or parties in family law arbitration. The resolution will be final and binding on both parties.
Family law arbitration isn’t limited to marital disputes, though. It also involves resolving concerns like child guardianship and their estate, financial assistance, conservation, and other related topics.
The Indian Parliament has enacted the following family laws, which apply to the religious communities listed in the corresponding enactments themselves, to preserve a secular station while still allowing religions to cover themselves.(3)
The Hindu Marriage Act, of 1955, an act to alter and codify the law relating to marriage among Hindus, is the primary marriage law legislation in India that is relevant to a mature population. This pertains to everyone who identifies as Hindu, Jain, Sikh, or Buddhist, meaning that it does not apply to Muslims, Christians, Parsis, or Jews.
In addition, Hindus are subject to specific legal regulations under the Hindu Succession Act of 1956 (which modifies and codifies Hindu law pertaining to intestate race), the Hindu Minority and Guardianship Act of 1956 (which modifies and codifies a section of Hindu law pertaining to non-age and custodianship among Hindus), and the Hindu Abdications and Conservation Act of 1956 (which modifies and codifies Hindu law pertaining to abdications and conservation among Hindus).
The Special Marriage Act of 1954 establishes a unique type of marriage in specific circumstances, permits the registration of this and specific other marriages, and governs divorces.
To control and regulate the laws pertaining to marriage and divorce among the Parsis in India, the Parsi Marriage and Divorce Act of 1936 was passed.
The Indian Divorce Act, of 1869 lays forth the laws pertaining to divorce and matrimonial causes pertaining to Christians in India, whereas the Indian Christian Marriage Act, of 1872 unifies and modifies the laws concerning the solemnization of Christian marriages in India.
Muslims who reside in India are subject to the Muslim Personal Law (Shariat) Application Act 1937, the Muslim Women (Protection of Rights on Divorce) Act 1986, the Dissolution of Muslim Marriages Act 1939, and the Muslim Women (Protection of Rights on Divorce) Rules 1986.(4)
Any person of any faith may seek the designated judicial forum as stipulated by the relevant legislation for the resolution of any marriage and other ancillary disputes. Every Indian state has a systematized system of assigned civil and criminal courts that operate under the general supervision of the state’s distinct high court. Similarly, to encourage compromise and provide a prompt resolution of conflicts pertaining to marriage and family matters, the Family Courts Act of 1984 aims to establish family courts.
Necessity for Alternate Methods of Resolution
Even though India has a well-established legal system with well-organized courts, cases, particularly family law cases, are plagued by excessive delays. Legal loopholes, time-consuming procedures, and spiralling costs make judicial hearings difficult to conclude quickly.
In addition to being inconvenient for all parties concerned, this backlog of cases overflows the courts. Moreover, actions don’t always produce the desired outcome. Although valuable, it often ends in resentment. Not only do important dispute resolution solutions save money and time, but they also preserve the parties’ connection by promoting cooperation and communication.(5)
Arbitration of Family Matters
All matters which may form the subject- matter of civil action 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 appertained to as arbitration.
Family issues are therefore appropriate for arbitration. However, this is still permissible within legal bounds. An arbitrator can make decisions on other matters, such property division, but they cannot grant a divorce or dissolution.
It is crucial to remember two crucial sections of the Code of Civil Procedure at this point:
• Section 89 of the Code of Civil Procedure Settlement of disputes outside the Court
• Order XXXIIA 6 of the Code of Civil Procedure Suits Relating to Matters Concerning the Family.
Section 89 of The Civil Procedure Code
To implement the 129th Report of the Law Commission of India, all courts were directed to refer to conflicts as arbitration, concession, agreements, or judicial agreements for resolution after the issues were established. It was believed that action should only be taken in the case that these alternative techniques of resolving disagreements fail. In accordance with this, Section 89 was designed to provide parties with an opportunity to reach a friendly, extrajudicial settlement.
Order XXXIIA 6 of The Civil Procedure Code
It’s important to remember that the CPC’s rules govern all procedures under the Hindu Marriage Act and the Special Marriage Act. It is possible to amend the 1976 Code of Civil Procedure concerning family-related issues. The mandatory agreement procedures in all matrimonial cases have been corrected.
Here, it’s also essential to note Section 9 of the Family Courts Act which states:
When it is possible and appropriate given the facts of the case, the Family Court will make an offer in the first instance of any suit or proceeding to assist and persuade the parties to settle the suit’s subject matter. To this end, the Family Court may, in accordance with any rules established by the High Court, adopt a similar process as it sees fit.(6)
Case Laws
• Balwinder Kaur v. Hardeep Singh (7)
The couple requested a divorce from the court in a petition. Reconciliation as an alternate dispute resolution method is required in divorce procedures, according to the court’s attempt to facilitate reconciliation between the parties before awarding a divorce. The divorce petition was then granted by the court, which declared that upholding the institution of marriage and its sanctity should be the primary goal. Instead of concentrating solely on procedural regulations, the attention should be on reaching a mutually agreeable solution between the parties.
• Love Kumar v. Sunita Puri (8)
In this instance, the court issued a divorce decision because one of the parties neglected to show up for the reconciliation hearings. The decree, which stated that the primary goal of the courts in divorce procedures must be to bring parties to mutual agreement, was set aside when the case was brought before the High Court. The divorce decree was issued in a hurry by the lower court.
• Mohinder Pal Kaur v. Gurmeet Singh (9)
In this instance, the parties filed for divorce within six months of getting married, yet the divorce had already been pending for six months. Reconciliation has been attempted to help the parties settle, but it has not been successful. As per legal regulations, a minimum of six months must have passed since the date of case filing before a divorce order can be issued. However, in this instance, it was decided that if the parties had attempted, but failed, to reconcile, and the petition has been waiting for more than six months, a divorce judgment may be issued.
Conclusion
ADR methods are often preferred because they can be more time-efficient, cost-effective, and flexible compared to traditional court proceedings. Additionally, they provide the parties involved with more control over the resolution process and outcomes.
ADR plays a significant role in family law by providing alternative avenues for resolving disputes outside of traditional litigation. These methods can be more flexible, cost-effective, and tailored to the specific needs of the parties involved in family-related legal matters.
While ADR methods offer several advantages, their effectiveness depends on the willingness of the parties to engage in the process. In the Indian context, promoting awareness of ADR options, providing adequate training to professionals, and developing a supportive legal framework can enhance the applicability and success of ADR in family law disputes.
References
1 Drishti IAS (2018) Alternative dispute resolution (ADR) mechanisms, Drishti IAS. Available at: (Accessed: 09 January 2024).
2. Vaish, V. (2017) Alternate dispute resolution (ADR) in India – court procedure – India, Alternate Dispute Resolution (ADR) In India – Court Procedure – India. Available at
3. Alternative dispute resolution (ADR), Legal Service India – Law, Lawyers and Legal Resources. Available at:
https://www.legalserviceindia.com/legal/article-1678-alternative-dispute-resolution-adr-.html
4. Application of ADR methods in family and matrimonial disputes, Legal Service India – Law, Lawyers and Legal Resources. Available at:
5. ADR laws in India, Singhania & Partners. Available at:
https://singhania.in/alternative-dispute-resolution-in-india-a-brief-overview
6. Gore, N. (2022) Alternative dispute resolution as a solution for family disputes – arbitration & dispute resolution – India, Alternative Dispute Resolution as a Solution for Family Disputes – Arbitration & Dispute Resolution – India. Available at:
7. (1997)11 SCC 701
8. AIR 1997 P H 189
9. LL 2021 SC 262
Link to Join Whatsapp Group of LJRF Centre for ADR
https://chat.whatsapp.com/Iw09cLSt8XCHZ9S7ks41GP
Convenors
Adv. Abhirami G Nair
Mob no. 7356655325
Adv. Aravind Prakash
Mob no. 8593815222
