27 February 2016

Conciliation for settling family disputes

by Barnik Ghosh


Globally, alternative dispute resolution is slowly, but steadily becoming the preferred mode for settling disputes. Many corporates including large business conglomerates are seriously evaluating the merits of  mediation and conciliatory procedures to avoid lengthy, and expensive litigation given the state of courts in India and the multiple levels of appeal that tend to exhaust both parties.  The Indian legislature, promoting the mediation route, has also been attempting to link the bridges so as to fall in line with the evolving global jurisprudence.

In India, the family unit continues to play a dominant role in the social structure. It has been often seen that law and religion merges and the Courts have to decide on questions which are rooted more on values and equity than the strict interpretation of law itself.

This article examines the scope of alternative dispute resolution mechanism in resolving family disputes in India and the viability of expanding the scope and functions of the family courts in India.

Law Commission Report

The Law Commission of India has endeavored to bridge the differences between the diverse personal laws in India at least in the matter of resolving family disputes. In its 129th Report, it has recommended that alternate modes of dispute redressal ought to be made obligatory on the Courts after the issues have been framed.  The settlement can be reached by conducting any of the alternative dispute resolution mechanisms namely, arbitration, mediation, conciliation, judicial settlement or through a Lok Adalat (a settlement court). Accordingly, Section 89 of the Civil Procedure Code 1908 lays down the mechanisms, machinery and procedure for practicing alternative modes of dispute resolution in all matters of civil litigation in India.

Civil Procedure Code 1908

The substantive provision (Section 89) has been procedurally supported by Order X, Rules 1A, 1B and 1C. Rule 1A provides an option to the parties to a suit for settlement of the dispute outside court. If a party exercises this option, a date shall be fixed for appearance before the forum or authority which has been opted by the parties for settlement.  Rule 1-B stipulates that, the parties have to appear before such forum or authority and Rule 1-C gives power to the Presiding Officer of the forum or authority to revert the same matter to the Court in the event the said Presiding Officer feels that the said forum or authority should not proceed with the matter in the interests of justice.

It may be pertinent to point out in this regard, that all the proceedings in India governed by the Hindu Marriage Act and the Special Marriage Act are regulated by the provisions contained in the CPC. The Indian Legislature enacted Order XXXIIA in the Code of Civil Procedure by an amendment in 1976 to provide for mandatory settlement procedures in all matrimonial proceedings. Thus, it may be specifically concluded that there has been a conscious effort on the part of the Indian legislature to ensure that family disputes can be settled by means of alternative dispute resolution mechanisms.

The relevant Order is reproduced here below:

“Order XXXIIA: Suits Relating to Matters Concerning the Family:

1. Application of the Order

  • (1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family.
  • (2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely:-
    • (a) a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;
    • (b) a suit or proceeding for a declaration as to legitimacy of any person;
    • (c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;
    • (d) a suit or proceeding for maintenance;
    • (e) a suit or proceeding as to the validity or effect of an adoption;
    • (f) a suit or proceeding, instituted by a member of the family relating to wills, intestacy and succession;
    • (g) a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.”
  • Sub-clause (3) makes it a mandatory duty of the court to make efforts for a settlement to be reached between the parties. The relevant clause is reproduced here below:

“3. Duty of Court to make efforts for settlement

  • (1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
  • (2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.”

A conjoint reading of the above sub-clauses clearly establish the statutory mandate laid down by the Civil Procedure Code  in the first instance to assist the parties in arriving at a settlement in a matrimonial cause in any matrimonial proceeding before a court of competent jurisdiction. Thus, for any suit or proceedings praying for matrimonial, ancillary or other relief in matters concerning the family, a separate and independent statutory obligation exists providing for mandatory settlement proceedings.

Hindu Personal Laws and Special Marriage Act

The Vedas and other Holy Scriptures makes reconciliation an essential tool to be followed by Hindus before a marriage irretrievably breaks down. When the Holy Scriptures was codified to unite the diverse laws of various sects of Hinduism, reconciliation is mandatory under The Hindu Marriage Act, 1955 (HMA) and The Special Marriage Act, 1954 (SMA). Section 23(2) of the HMA lays down that before proceeding to grant any relief under the HMA, it shall be a duty of the Court in the first instance, to make every endeavour to bring about reconciliation between parties in all cases. This is in relation to any relief sought on most of the fault grounds for divorce specified in Section 13 of HMA. The provisions contained in Sections 34(2) and 34(3) of the SMA are pari materia to the provisions contained in Sections 23(2) and 23(3) of the HMA.

Muslim Personal Laws

Contrary to popular belief about the unilateral methodology of the Muslim form of divorce, the Quran lays down a specific four-step reconciliation procedure before the talaq is granted.

As a first step, when there is a marital discord, the Quran laws down that the husband should try and talk out the differences (faizuhunna) with his wife.

In the event the misunderstanding between the parties persists, as a second step, the Quran recommends that the parties should be asked to stay separately and keep any form of physical intimacy in abeyance (wahjuruhunna). Such measure has been recommended so that temporary separation may help the parties to reunite. 

In the event this procedure too fails, as a third step, the husband is instructed to discuss with his wife again (wazribuhunna) about the seriousness of the situation in order to try and bring about reconciliation. In pursuance of wazribuhunna, the husband shall try and explain to the wife that if the differences are not resolved by the parties shortly, the dispute shall be taken beyond the confines of the four walls of the home, which may be harmful to the interests of both the parties.

In the event the dispute still remains unresolved, as a fourth step, the Quran requires the dispute to be placed before two arbitrators, one from the family of each spouse, for resolution.

Family Courts Act 1984

The Preamble to the Family Courts Act, 1984 enacted by the Indian Parliament laws down as follows:

An Act 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 matters connected therewith.

Section 9 of the said Act makes it a duty of the Court to make efforts for a settlement. It shall be worthwhile to note that the legislative intent and thought behind enactment of the said Act was to provide not only legal remedy for settlement of family disputes but ensure that estranged families avail of the services of professional and trained mediators who may provide counselling and easier settlement of disputes. Thus, this enactment can be termed as a wholesome legislation on reconciliatory modes in family law disputes in Indian matrimonial disputes.

Judicial Pronouncements

The Division Bench of the Calcutta High Court in Shiv Kumar Gupta v. Lakshmi Devi Gupta, 2005 (1) HLR 483 observed that compliance with Section 23(2) of the Hindu Marriage Act, 1955 is a statutory duty of the judge trying matrimonial cases.

The Apex Court in the case of Jagraj Singh v. Bir Pal Kaur, JT 2007 (3) SC 389, observed as follows:

“The Act (Hindu Marriage Act, 1955) is a special Act dealing with the provisions relating to marriages, restitution of conjugal rights and judicial separation as also nullity of marriage and divorce. Chapter V (Sections 19 to 28A) deals with jurisdiction and procedure of Court in petitions for restitution of conjugal rights, judicial separation or divorce. Sub-section (1) of Section 23 expressly states that where a petition for divorce is filed under Section 13 of the Act on certain grounds, before proceeding to grant any relief, the Court, 'in the first instance', should make an endeavour to bring about reconciliation between the parties.”

The Apex Court, in the case of Salem Bar Association v. Union of India (2003 (1) SCC 49) has provided the final version of the Model Rules of ADR and the Model Rules of Mediation with a direction that all High Courts of the country should adopt the said rules with necessary modifications.

Conclusion and recommendations

The family structure of India is extremely conservative and prefers not to take the disputes to unknown experts and/or mediators. It is recommended that in this context, greater awareness is generated about the usefulness of alternative dispute resolution mechanisms in the Indian society. The advantages of the procedures may be explained in detail even in the remotest villages so that a majority of the existing disputes are settled at the grassroot levels.

It is further recommended that the powers and scope of Family Courts be increased so that it reaches to the far corners of the society at large. More family courts should be opened across the length and breadth of the country in order to facilitate easier resolution in family disputes.

[The author is a Senior Associate, Corporate Practice, Lakshmikumaran & Sridharan, Kolkata]

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