Matrimonial disputes in India are increasingly intricate and arduous to settle. These conflicts are not merely a matter of legal fact or doctrine but are intricately intertwined with the complexities of human relationships, emotions, and the welfare of children. Traditional court litigation can prove to be a costly and time-consuming process that may not always be effective in addressing these sensitive issues.
Hence, there is a growing necessity to explore alternative dispute resolution mechanisms such as mediation and conciliation, especially pre-litigation mediation. These alternative methods allow the parties to maintain control over the resolution process and reach a solution that is tailored to their specific needs and concerns.
Methods of Dispute Resolution
In India, a range of dispute resolution methods exists, encompassing:
- Litigation: This prevailing approach involves parties resorting to the legal system, seeking resolution through the courts of law. India’s legal system consists of the Supreme Court, High Courts, and subordinate courts, each possessing jurisdiction over distinct types of cases.
- Arbitration: This private dispute resolution method entails parties selecting a neutral third party, known as an arbitrator, who renders a binding decision on the dispute. Arbitration in India is regulated by the Arbitration and Conciliation Act, of 1996.
- Mediation: As a voluntary process, mediation involves parties engaging a neutral third party, referred to as a mediator, who facilitates discussions and negotiations to reach a mutually acceptable solution.
- Conciliation: Similar to mediation, conciliation entails a neutral third party, known as a conciliator, assisting in fostering discussions and negotiations between the parties involved. However, unlike mediation, the conciliator is authorized to provide suggestions and recommendations to the parties.
- Negotiation: This direct method involves parties engaging in direct discussions and negotiations with the aim of reaching a settlement. Negotiation is an informal process devoid of third-party intervention.
- Lok Adalat: A forum for alternative dispute resolution, Lok Adalat resolves disputes through conciliation and mediation. Typically chaired by retired judges, social activists, or eminent individuals, Lok Adalats issue binding decisions on the involved parties.
- Online Dispute Resolution (ODR): ODR, a comparatively recent addition, leverages online platforms such as video conferencing, email, and online chat to resolve disputes. The ODR process is regulated by the Information Technology Act, of 2000.
Matrimonial Disputes: What does it include?
Matrimonial disputes in India encompass many legal issues stemming from the institution of marriage, such as divorce, maintenance, custody of children, and property disputes. These disputes are no trifling matter and require due consideration of various factors.
Divorce, which is the process of terminating a marriage, can be initiated on several grounds such as cruelty, desertion, adultery, and irretrievable breakdown of marriage. In a landmark case in this regard, the Supreme Court of India recognized the irretrievable breakdown of marriage as a legitimate ground for divorce, even if one spouse does not consent to it.[1]
Maintenance, the financial support provided by one spouse to another after separation or divorce, includes support for the spouse and children. The landmark case of Shah Bano Begum was a watershed moment in promoting women’s rights in India, as the Supreme Court upheld the right of Muslim women to receive maintenance from their husbands after divorce.[2]
Child custody, which determines the legal right of a parent to care for and make decisions about their child’s upbringing after separation or divorce, is determined by considering the welfare of the child as the paramount factor.[3]
Property disputes are a common consequence of separation or divorce, as disagreements may arise regarding the division of assets and liabilities. The Supreme Court held that daughters have an equal right to inherit ancestral property, even if they were born before the enactment of the Hindu Succession (Amendment) Act, 2005.[4]
Laws Related to Matrimonial Disputes
Matrimonial disputes in India are complex and multifaceted where each facet is covered under a separate legislation. The grounds under which divorce can be sought are specified under the Hindu Marriage Act, of 1955, and include cruelty, desertion, adultery, and irretrievable breakdown of the marriage.[5]
Maintenance, which encompasses financial support for the spouse and children, is governed by various legal provisions, including the Hindu Marriage Act, Muslim Women (Protection of Rights on Divorce) Act, Protection of Women from Domestic Violence Act, and Code of Criminal Procedure.
Child custody, which determines the legal right of a parent to care for and make decisions for their child after separation or divorce, is determined by considering the well-being of the child to be the paramount factor. The Guardians and Wards Act, of 1890, stipulates that the well-being of the child is the most important ground in determining custody.[6]
Property disputes in matrimonial cases depend on the personal laws applicable to the parties involved. Matrimonial disputes are serious legal issues that require due consideration of various factors. The courts consider multiple factors, including gender equality and the well-being of children, while resolving these disputes.
Issues in the current system of dispute resolution
The existing mechanism for resolving matrimonial disputes presents several notable shortcomings that can render the process daunting and emotionally taxing for the involved parties. One of the primary concerns pertains to the protracted legal procedures, which can span multiple years before reaching a resolution. This protracted duration can induce considerable stress and anxiety among the parties, particularly when they are residing separately throughout the proceedings.
Furthermore, the absence of specialized courts dedicated to handling matrimonial disputes can result in delays and a dearth of expertise in dealing with sensitive family matters. This further exacerbates the mental burden on the parties as they grapple with the complexities of the legal system.
Another significant issue lies in the presence of gender bias that frequently permeates the existing dispute resolution mechanism. In certain jurisdictions, women may encounter additional obstacles in accessing justice due to cultural, economic, or legal barriers.
Moreover, the limited availability of alternative dispute resolution mechanisms, such as mediation, poses challenges for parties seeking a mutually satisfactory resolution. This exacerbates the duration of the dispute, placing additional strain on the courts and the parties involved.
The ineffective enforcement of court orders also poses a substantial problem, even after a decision has been rendered. This can result in further legal battles, thereby burdening an already overwhelmed court system.
Thus, the current dispute resolution mechanism may fail to furnish victims with sufficient assistance and protection, thereby exacerbating their distress and trauma.
Mediation and Conciliation – a better alternative
Mediation includes a mediator, who assists communication between the consenting parties and helps them reach a conjointly agreeable conclusion. The mediator or conciliator does not provide legal advice or make decisions for the parties but helps them negotiate a settlement.
Conciliation, on the other hand, involves the use of a conciliator, who takes a more active role in the negotiation process. The conciliator may make suggestions or offer proposals to help the parties settle.
The Civil Procedure Code, of 1908 provides for the appointment of a mediator to help resolve disputes in civil cases, including matrimonial disputes[7]. The Arbitration and Conciliation Act, of 1996 provides for the appointment of a conciliator to assist parties in resolving disputes, which can also be used in matrimonial disputes[8].
Matrimonial disputes can benefit greatly from the utilization of mediation and conciliation as these mechanisms provide a platform for parties in dispute to put efforts together and reach a middle ground that satisfies both parties while also preserving their relationship. Collaborative problem-solving enables parties to maintain control over the outcome, allowing them to come away with a sense of mutual respect and understanding. This approach is particularly crucial in cases involving children, where future interactions may occur, making mutual understanding imperative.
In addition to their advantages in preserving relationships, mediation, and conciliation are often faster and less expensive than traditional court proceedings. By reducing the financial burden on the parties involved, these mechanisms free up court resources for more pressing matters. Parties also avoid the emotional strain that typically accompanies court proceedings, which can be incredibly taxing on their well-being.
In summary, mediation and conciliation offer a more collaborative and less adversarial approach to resolving matrimonial disputes, allowing parties to work together to find mutually agreeable solutions while preserving their relationships. Their speed, cost-effectiveness, and lower emotional burden make them a viable alternative to traditional court proceedings.
What is Section 12 A of the Commercial Courts Act and its relevance?
Section 12A of the Commercial Courts Act, introduced in 2018 as an amendment, stands as a beacon for promoting the pre-institution mediation of commercial disputes. This provision requires parties to explore the possibility of settling their commercial disputes through mediation before initiating any legal proceedings[9]. The Supreme Court has unequivocally stressed that courts must promote pre-litigation mediation to foster settlement and minimize the burden on the judicial system[10]. Subsequent judgments have further strengthened this commitment to alternative dispute resolution mechanisms, particularly mediation.
The advantages of pre-litigation mediation in commercial disputes are numerous and compelling. The provision encourages settlements, expedites dispute resolution, and is cost-effective. Additionally, it ensures confidentiality and culminates in a mutually beneficial outcome, thereby promoting efficiency and effectiveness. The extension of such a provision to matrimonial disputes would significantly address the drawbacks of the current dispute resolution system.
By mandating pre-litigation mediation, the burden on the courts would be alleviated, while the aggrieved parties would benefit from personalized grievance redressal, resulting in a faster resolution of their disputes. Furthermore, trained mediators, specifically equipped to handle matrimonial disputes, would ensure confidentiality and prioritize the mutual interests of the parties involved, leading to a seamless and efficient dispute resolution process.
In sum, the adoption of pre-litigation mediation in matrimonial disputes would provide a much-needed solution to the shortcomings of the existing dispute resolution system.
Benefits of mediation and conciliation
Having a proficient mediator in matrimonial disputes can be incredibly advantageous compared to litigation. The benefits of preferring mediation and conciliation over litigation in matrimonial disputes include:
- Communication skills: Mediators and Conciliators are experts in communication skills, which enables them to facilitate productive and constructive conversations between the parties. They can help clarify misunderstandings, defuse emotions, and guide the parties toward a positive and collaborative approach.
- Problem-solving skills: Mediators and Conciliators are proficient in problem-solving, allowing them to help the parties identify and address the underlying issues that are causing the conflict. They can help the parties brainstorm solutions and find innovative ways to meet their needs and interests.
- Flexibility: Mediation and Conciliation is a process that can be customized to fulfill the specific requirements and situations of the parties. A well-trained mediator can adjust the process to accommodate different communication styles, cultural differences, and other factors that may be relevant to the dispute.
- Confidentiality: As previously mentioned, mediation is a confidential process. A skilled mediator can create a secure and confidential environment for the parties to share their concerns and interests without fear of judgment or retribution.
- Trained Mediator or Conciliator: A trained mediator or conciliator possesses specialized knowledge of the governing laws, allowing them to facilitate the process more effectively. Having a trained mediator brings neutrality, communication, problem-solving skills, flexibility, and confidentiality to the process, resulting in a more efficient, effective, and satisfactory resolution.
- Reduce the burden on courts: By mandating pre-litigation mediation, the burden on courts can be significantly reduced, allowing them to focus on more pressing matters.
- Improve the functioning of the Family Court: Specialized courts, such as family law courts, have become overburdened with cases, leading to inefficiency and a deterioration in the quality of justice. This has resulted from the cumbersome procedures and inefficiencies of the system. Mediation and conciliation can help alleviate this burden, enabling the family law courts to focus on matters requiring urgent relief or that cannot be resolved through alternate dispute resolution mechanisms, thus making the process more efficient.
Conclusion
As the burden on specialized courts continues to mount, the quality of justice invariably suffers. This is especially true for matrimonial disputes, which are not simply matters of fact or law, but rather issues that are highly sensitive and personal in nature. Such disputes involve a myriad of factors, including human emotions and the well-being of the children implicated in the dispute. Consequently, it is imperative that these delicate matters are not subjected to the arduous process of litigation, which not only causes significant psychological distress but can also take years to resolve. Instead, a more efficient solution would be to make use of mandatory pre-litigation dispute resolution procedures such as mediation and conciliation. By employing these alternative methods, the shortcomings of litigation can be effectively overcome, leading to a more expedient and satisfactory resolution of the dispute.Top of Form
[1] Hiral P Harsora v. Kusum Narottamdas Harsora ( 2016 ) 10 SCC 165.
[2]Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556.
[3] Gita Hariharan v. Reserve Bank of India (1999) 2 SCC 228.
[4] Prakash v. Phulavati (2016) 2 SCC 36.
[5] The Hindu Marriage Act, 1955 (Act 25 of 1955), s.13.
[6] The Guardian and Wards Act, 1890 (Act 08 of 1890), ss. 17, 25.
[7] Code of Civil Procedure, 1908 (Act 05 of 1908), s.89.
[8] The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s. 61.
[9] The Commercial Courts Act, 2015 ( Act 04 of 2015), s. 12 A.
[10] Patil Automation Private Limited v. Rakheja Engineers Private Limited (2022) 10 SCC 1.
Author: Shambhavi Anand
Juris Centre 