INTRODUCTION
Alternate dispute resolution has been a rising dispute resolution mechanism and is considered quicker as well as much more effective and satisfactory for both the parties than the traditional dispute resolution mechanism i.e. Proceedings in a court. ADR deals with resolving the issues and negotiating between the parties to reach an amicable settlement rather than a verdict. Settlement is the way by which a win-win situation can be achieved between both the parties and both parties gain something rather than nothing.
In matrimonial disputes regarding property, child custody or even in disputes causing divorce, the alternative methods of ADR have proven to be very effective. The following article briefly discusses the various alternative methods to resolve matrimonial disputes other than the traditional judicial mechanism. It will explore the areas of counselling, conciliation, mediation and arbitration and their relevance in any matrimonial dispute. Alternate methods to resolve matrimonial disputes are cheaper, quicker and more efficient than traditional dispute resolution methods.
MATRIMONIAL DISPUTES AND NEED OF ALTERNATIVE METHODS TO RESOLVE THEM
Matrimonial disputes are not just the concern of a family, they are the concern of the whole country because, the termination of a marriage can be a traumatic and emotionally devastating experience for the spouses as well as the other family members involved which can have social, psychological, emotional and even economic repercussions. When there will be more marital conflicts and when court proceeding is determined to find a guilty party and the advocate’s getting under your skin will result in making the dispute much more bitter than it was previously before the institution of the case. Eventually, lead to the emotional breakdown of the person involved and that person will not be a good human resource to the country. It will also affect the happiness of the person and ultimately affect the happiness index of the country at large. Hence “the divorce law in many countries are heading toward a no-fault divorce which dispenses the requirements of an allegation, counter-allegations or any proof of matrimonial guilty.”[1]
As it is also mentioned by Lord Hailsham, “though the law could not alter the facts of life, it need not unnecessarily exaggerate the hardships inevitably involved. There seems a little doubt that the present law is guilty of just that.”[2] This clearly means that marital disputes are not like other disputes as it contains emotional and sensitive issues and hence is sensitive to deal with, therefore in such situations law should be helping out to resolve the matter between the spouses rather than convicting a party guilty. The traditional judicial mechanism used to aim that either one party is convicted of matrimonial guilt and the other receiving the matrimonial reward. However, the alternative methods which are arising in present times aim towards not only resolving the conflict but also creating an emotional balance post the divorce for both the parties. Sometimes these alternative methods are so effective that they help the spouses in resolving the issues and getting away from the idea of divorce by counselling or conciliation’s. Sometimes matters such as after divorce conflicts regarding alimony, child custody, matrimonial property etc can be very time consuming and will increase the bitterness in the already bitter relations of both the party if gone with the traditional judicial proceedings, however, if party’s approach for dispute resolution mechanisms such as mediation, such conflicts can be resolved quickly and the approach will be more sensitive looking at the nature of the conflict. For similar reasons, even the judicial approach is transforming and new statutory provisions are passed to promote such alternative methods to resolve matrimonial disputes. However, matters pertaining to domestic violence or any criminal action in marriage cannot be resolved by such alternative methods.
COUNSELLING/ CONCILIATION
Counselling is a process to help both the spouse to resolve their differences or discuss the details of their separations and reach some amicable settlements. It is more like negotiation, the main aim of counselling is to resolve the issues and settle the matter, and conciliation, on the other hand, aims not only to resolve the issues but also to keep the marriage intact, i.e. to provide counselling and resolving the matter in a way that the spouses decide to resolve their issues and not go for divorce. There have been changes in the concept of conciliation as well, earlier it was believed that if a couple decides to stay together as husband and wife after the reconciliation process, only then is the conciliation successful and if they decide to divorce then the conciliation is failed. However, nowadays it is aimed that not only should the couple decide to stay together but also be emotionally reconnected so as to live a happy marriage after the reconciliation process and only then we can say that the conciliation was successful. For that, there should be frequent counselling as it can help, and also if a couple decides to divorce then effective counselling will be conducted to prepare both the spouses for the post-divorce life which should be free of bitterness, guilt or failure which accompany the marriage[3].
MEDIATION AND ARBITRATION
Mediation is another dispute resolution mechanism and has proven effective in matrimonial disputes. It is considered as a client-driven process and it contains a neutral third party as the mediator. The mediator is there only to facilitate the mediation process, as “the mediator tries to help the parties to reconcile their differences in an equitable and mutually acceptable manner”[4] A good mediator tends not to threat, or use false promises in any way to apprehend the party just to reconcile the matter. A good mediator acts as a live spectator and only facilitates the whole process without any active participation in making any decisions for any of the parties. It is up to the party’s to decide for themselves on advice given by the mediator. The mediator should be unbiased and give the best plausible situation advice to both the party’s for settlement in a mediation process but never should the mediator try to impose that advice on either of the parties. Once a matter is settled in mediation, a report is sent to the concerned court to pass a decree accepting the mediation settlement of the parties reached by mutual consent. Also, the discussions held during the mediation process remains confidential and none of the parties or the mediator can disclose any information revealed during the mediation process to the outside world, and hence in such scenario, the privacy of both the parties are not breached in any way.
Arbitration is also becoming a very popular form of dispute settlement in the modern world. In arbitration usually, both the parties appoint one arbitrator each and thereafter both the arbitrators together appoints a third arbitrator (who is called the umpire) and then the arguments are presented in front of the arbitration panel and an arbitral award is granted. However, people have been reluctant to opt for arbitration as a dispute resolution in matters pertaining to matrimonial disputes largely because of a non-judicial body deciding matters that will also be binding over both the parties, even though the arbitration is less time-consuming.
STATUTORY PROVISIONS AND SPECIAL PROCEDURE
Matrimonial disputes are very sensitive issues and need to be handled with care and avoid further damage to emotional bonds in any way. In such scenario, the normal judicial proceedings like in any other cases cannot be initiated in matrimonial dispute cases and hence, in various personal laws statute there have been references for mandatory reconciliation efforts such as, In Hindu marriage Act, “Section-23 states that before granting any relief, it is a mandatory duty of the court in the first instance only to make every endeavour to bring about a reconciliation between the parties.”[5] Before 1976 it was under the duty of the courts to conduct the reconciliation, however in such scenarios since the court is already burdened with so many cases and time constraints, it used to conduct this conciliation session very short and hence that proved to be ineffective conciliation process. To avoid such scenario, Section 23(2) was added by amendment in 1976 which says that if during any time the parties or the court feel any need of reconciliation, then for 15 days it can adjourn the matter and send it to any third party suggested by the spouses and if the spouses are unable to give any name then it is the duty of the court to appoint an expert nominated by the court to pursue that reconciliation.[6]
Similarly, the statutory provision is provided in Section 34(2) and 34(3) of the Special Marriage Act[7]. And even if both the spouses have filed for a joint petition for divorce still attempt to reconciliation are taken by the court.
The Family Courts Act, 1984 is a statutory Act that was established to promote conciliation in matrimonial disputes. Section 9 of the Family Courts Act clearly states that when a matrimonial dispute matter comes in court, first instance the court should try to assist and persuade the parties for settlement[8]. Or if in any stage the court or parties feel that the matter should be sent for conciliation or mediation even then the court will adjourn the proceedings and send the matter for conciliation or mediation.
In the Code of Civil Procedure, 1908 contains “Section 89, which talks about powers given to the court to refer any case for arbitration, conciliation, Lok Adalat or mediation.”
The Legal service authority has set up various pre-litigation and during litigation legal aid cells to settle or resolve the dispute between parties in a dispute.
Various Forums other than the traditional judicial mechanism for matrimonial dispute resolution are:-
LOK ADALAT
It means the people’s court and for the most reasonable cause for approaching Lok Adalat is its nature of speedy disposal of cases. Lok Adalats are very helpful in many dispute resolutions and available at national, state, district and even Taluka level and are conducted time to time in which Taluka and district Lok Adalats are working on regular basis and are very helpful in post divorce matrimonial disputes.
FAMILY COUNSELLING CENTRES
Many states have set up family and marriage counselling centres. Efforts are made by counsellors in these centres to resolve the conflicts between parties. They also give emphasis on reuniting the couple, if reuniting is not possible then these counselling centres works on resolving the disputes arising post-divorce such as child custody, alimony, matrimonial property etc. The centres make sure that these disputes are dealt with amicably.
Hence it can be said that the legislation and judiciary approach to promoting counselling, conciliation and mediation i.e. alternative methods to resolve matrimonial disputes before any other traditional judicial proceedings because these methods have proved to be more effective and less time consuming than the traditional judicial proceedings.
CONCLUSION
Matrimonial disputes are very sensitive issues and can be very devastating for the family. Ordinary judicial proceedings can be very expensive, time-consuming and even embarrassing at times when the personal details of relations are shared in open court and used by advocates against the spouses. On the other hand, alternative methods to resolve matrimonial disputes are increasingly used in today’s society as they are quicker, cheaper and also confidential between the spouse/concerned parties. However, still, it is not easy to say that such methods are always better than traditional methods as in many cases even after reconciliation spouses are not emotionally connected and can cause further marital disputes in future after a short span of time, but if the mediation processes or the conciliation is done effectively making sure that each and every issue is dealt with legally as well as keeping in mind the emotional point of view so as to truly resolve the matters between both the spouses, then such alternative methods to resolve matrimonial disputes can be said to be better and effective than the traditional judicial proceedings. Further, it can be said that counseling is a beneficial and constructive approach toward resolving matrimonial disputes as even if the couple decides to go for the option of divorce, still, their pain is eased and they are mentally prepared for the impacts and counselled for leading a stress-free, trauma-free life. Therefore counseling should be mandatory at first for any matter related to any matrimonial dispute and after that only it should be allowed to go to judicial proceedings.
References:
1. PROF KUSUM, FAMILY LAW LECTURES FAMILY LAW I LEXIS NEXIS, pp 447(4th ed 2015)
2. S.M. CRETNEY AND J.M. MASSON, PRINCIPLES OF FAMILY LAW, pp 165 (1990)
3. JUDGE LAURENS L. HENDERSON, ‘MARRIAGE COUNSELLING IN A COURT OF CONCILIATION’, JUDICATURE pp 253,256 (vol. 52 1969)
4. PROF KUSUM, FAMILY LAW LECTURES FAMILY LAW I (4th ed. 2015)
5. THE HINDU MARRIAGE ACT, 1955,S.23
6. LEXISNEXIS, UNIVERSAL’S LAW PUBLISHING HINDU LAWS, pp 21-22 (2018)
7. SPECIAL MARRIAGE ACT 1954, S.34
8. FAMILY COURTS ACT, 1984, S.9
9. CODE OF CIVIL PROCEDURE, 1908, S.89
About the author –
This article is submitted by SHUBHANKAR DAS, 5th Year B.A.LL.B (Hons.) student at Institute of Law, NIRMA University.
