AbstractThis article examines the vast opportunities available in alternative dispute resolution techniques with respect to matrimonial disputes in India. It is an attempt to gauge the possible conflicts arising in the contemporary family which can be effectively dealt with without going into the overdue and overburdening procedure of mainstream litigation.
Introduction Family and marriage, both are the cornerstones of the society. They are closely connected and form the heart and soul of the human society. In the primitive times, the concept of marriage began as a religious sacrament. It implied an indissoluble, eternal union. Even in our contemporary world, most religion regards marriage as a sacrament.
Marriage is not merely a convention but it is an implicit condition of human society. It is devised for expression and development of love. Its purpose is not only procreation of off-springs but also the enhancement of the personality of the husband and wife through the fulfillment of their need for a permanent union in which both may achieve completeness. Conflicts and disputes are common to all marriages and arise because of different disagreements.
Breakdown of marriage leads to grave repercussions on a family, disturbing harmony and peace of the family. Therefore, our courts and personal laws inspire the parties involved in matrimonial disputes to go for reconciliation by an amicable settlement instead of onerous litigation battle.
Mediation in Matrimonial Disputes
Disputes in marital issues are of the unique nature. They involve not solely the facts and laws but also feelings, motivation, sentiments and social compulsions. Disputes or conflicts in the marital relationship which can be fixed up must be repaired and settled by patchwork and sewing instead of simply cutting off ties by separating from each other.
The concept of settling disputes outside the court of law was very endemic in the ancient India as well. However, the concept of mediation was given legal recognition for the very first time through the Industrial Disputes ACT, 1947. In 1999, The Civil Procedure Code Amendment again inserted section 89(which was repealed earlier) providing for referring of cases undecided in the court to Alternative Dispute Resolution methods, including the process of mediation.
Mediation is a form of Alternative Dispute Resolution, which aims to assist two or more disputants in reaching an agreement amicably. In this method, a neutral third party focuses on the non-coercive and consensual process of dispute settlement. This method not only save time but also lessen the bitterness of estranged relationship resulting from court battles.
There are many provisions in abundance of legislation which provide for settlement and conciliation before litigation. Section 89 of the Code of Civil Procedure authorizes civil courts to refer matters to alternative dispute resolution. However, as per the provision, in order to refer the case for alternative dispute resolution, consent of both parties is a pre-requisite. According to provisions of Section 34(3) and 34(4) of Special Marriage Act and Section 23(2) and section 23(3) of Hindu Marriage Act, 1955, the courts are empowered to bring reconciliation between the parties seeking divorce.
Role of the mediator
The mediator has to mould himself into a conciliator to lead the parties looking for a solution. It is duty of the mediator to gain the confidence of the disputing parties because the dispute might be personal to them. He may have to persuade them in order to bridge the gap. He doesn’t impose a decision on the parties but facilitate the parties to talk, negotiate and resolve the matter.
Brief of cases encouraging mediation in matrimonial issues
In Mohd.Mushtaq Ahmad v. State, the wife filed a divorce petition with an FIR against the husband under Section 498A of IPC when disputes arose between the couple after birth of a female baby . The province judicature directed the parties to mediation beneath Section 89 of CPC. The matter was settled amicably through mediation and the wife determined to quash the FIR. The Court allowed this by stating that the court in exercise of its inherent powers will quash the criminal proceedings or FIR or grievance in applicable cases so as to fulfil the ends of justice.
. In Afcons Infrastructure Ltd. v. CherianVarkey Construction Co. (P) Ltd, the Supreme Court held that even once a case is assigned to mediation the court retains its management and jurisdiction over the matter and also the mediation settlement can need to be placed before the court for recording the settlement and disposal.
In ManasAcharya v. State &Anr, the court issued a pro mediation approach wherein it highlighted that the settlement obtained in mediation is valid and legal and the decision taken in the mediation is binding on the parties.
Conclusion It may be precisely concluded that in matrimonial issues, mediation is a lot more advantageous than the court redressal mechanism if enforced with vigorous body established. The variety of cases resolved through ADR mechanism are increasing because of the legislative recognition to it in section 89 of the Code of Civil Procedure. The Law Commission of India has attempted to reduce differences between the divorce personal laws of various religions prevalent in India especially in the matter of matrimony issues. Even the 129th Law Commission report has recommended that the alternative dispute resolution methods must be made obligatory in matters of civil cases in India.
Abraham Lincoln has also supported mediation by stating that, “Discourage Litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often really a loser- in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity at being a good man. There will still be business enough.”