Most people in India are not aware that dispute resolution can be done outside court too
The authors are advocates at Karanjawala & Co. practicing before the Supreme Court of India and High Court of Delhi, respectively. While Ms Nandini Gore is an advocate on record, a renowned mediator and a senior partner with the firm, Mr Karanveer Singh Anand works as an associate. .
INTRODUCTION
Disputes or conflicts are dynamic in nature and are usually resolved inside a courtroom (litigation) or outside (non-litigation) it.
Litigation refers to actions contested in a court that involves a claim, a dispute, and the use of a specific institution (the court) to resolve a dispute. It also requires the enforcement of law to end conflicts. The litigation paradigm is entwined around victory and defeat.
According to National Judicial Data Grid (NJDG), a portal that tracks data relating to cases pending and disposed of in all districts and taluka courts of the country, the judiciary is overburdened. A total of 47 million cases are currently pending across various courts in the country as a result of a massive backlog of 4.15 crore cases (3.06 crore criminal cases and 1.08 crore civil cases) in various district courts or subordinate courts. Out of this, 59 lakh cases (17 lakh criminal cases and 42 lakh civil cases) are pending before the High Courts and another 70,000 before the Hon'ble Apex Court.
States are adopting new policies and measures to resolve disputes beyond the traditional legal system, which is groaning under the backlog of pending cases.
In this context, Alternative dispute resolution (ADR) or different ways people can resolve disputes without trial has become popular. ADR is encouraged due to a number of advantages, such as, flexibility, privacy, ease in procedure, cost effectiveness and speedy resolution of disputes.
The right to a speedy trial is an inalienable right and is an important facet of the right to life and personal liberty under Article 21 of the Indian Constitution as observed in the case of Hussainara Khatoon v. State of Bihar1.
ADR refers to a set of practices and techniques aimed at permitting amicable resolution of legal disputes outside courtrooms. It includes mediation, arbitration, negotiation, conciliation, and a variety of "hybrid" processes by which a neutral person who is appointed by the parties in the disputes, facilitates the resolution of legal disputes through consensus.
NV Ramana, the chief justice of India, had recently observed that courts must take an active effort in making negotiation and mediation mandatory, as a part of case management.
The concept of alternative dispute resolution is not new in to India. India has had a historical legacy of settling disputes, alternatively, through panchayats even before the Britishers came in and established their authority.
Arbitration and alternative dispute resolution can prove to be a panacea not only for business disputes, but also for matrimonial and family disputes where it not only impacts the parties involved, but also the future of their children.
Families can get into conflict over many different issues like domestic disputes, restitution of conjugal rights, breakdown of marriage, testamentary and intestate property issues, childcare custody, divorce and separation, and maintenance and eldercare. Disputes can also take a wide variety of forms, including physical, sexual, financial, verbal, and psychological.
The adversarial nature of litigation and scurrilous arguments can lead to resentment and even worsen already strained family ties., ADR, meanwhile, can resolve differences and conflicts in an amicable and congruous manner, by encouraging communication. Even the provisions of the Indian matrimonial legal system touts the idea of an amicable end to differences.
The Family Courts Act 1984, Civil Procedure Code 1858, The Hindu Marriage Act 1955, and the Legal Services Authorities Act of 1987 all contain references to mediation and conciliation in family disputes and encourages conciliation in resolving disputes relating to marriage, family problems, as well as other related matters, amicably.
Former chief justice of India RC Lahoti had applauded ADR mechanisms for saving energy, time, and money of the practitioners, , especially, in family matters.
A courtroom is not an ideal place to settle hurt and emotional feelings, since family disputes, have a traumatic effect and the legal system does not openly respond to emotions ranging from disappointment and anxiety to depression, sadness, grief, anger, and trauma faced by the parties. .
During divorce proceedings, children are the inadvertent victims of legal tussle, as couples attack each other personally. The court proceedings only vitiate the atmosphere by escalating distrust and anger as the sole objective of both the parties is to defeat the other, dividing family members into two hostile camps. This lack of accommodation by the legal system in resolving family disputes is one of the reasons for the introduction of ADR as an alternative mechanism for resolving family disputes.
SHORTCOMINGS OF THE PRESENT LEGAL SYSTEM
Indian legal system is one of the oldest in the world, dating back to the Neolithic age. It's a system that's constantly evolving, adapting and acclimatizing to the needs of the society. As one of the pillars of Indian democracy, judiciary has always sided with the aggrieved parties to secure their rights, fighting against injustices, inequality, cruelty, and exploitation. However, the system has been mired in a variety of problems in recent times. As justice Ramana pointed out recently, one of the major challenges in ensuring the rule of law and safeguarding human rights is the inability of the formal legal system to deliver speedy and affordable justice to all.
Highlighting India's complex and expensive justice delivery mechanism, Ramana added that for the functioning of a healthy democracy, it's imperative that people feel their rights and dignity are protected and recognized.
The Supreme Court too had taken a note of India's delayed and overpriced legal system in the Sheela Barse v. State of Maharashtra (1983) case. Nothing rankles a human heart more than a feeling of injustice, the court had observed, adding that a speedy trial is a fundamental right guaranteed under article 21 of the Indian Constitution.
According to Mr Markandey Katju, former Supreme Court judge, a vast number of pending cases, judicial vacancies, and lack of interaction between people and courts are some of the major obstacles when it comes to the dispensation of justice and speedy trial.
A 2019 article published in the Tribune estimated that it will take another 360 years to clear the backlog of existing cases, provided no fresh cases are filed. As per the National Judicial Data Grid, courts in India saw an increase of over 27% in the pendency of cases between December 2019 and April 2022.
Among the various factors responsible for the monumental pendency of cases, one key reason is the shortage of judges. Data shows that there are only 27,600 judges, across various courts, to decide 4.7 crore pending cases.
There is an inordinate delay in filling up the vacancies of judicial officers in this country. India has about 21 judges per million people. The 120 th Law Commission report published on 31.07.1987 recommends 50 judges per million to tackle pendency rates.
It's not just shortage of judges alone. Many courts in India do not have basic facilities for litigation, with most subordinate courts lacking basic infrastructure for judges, litigants and court staff. Misuse of PIL (public interest litigation) too contributes to the pendency of cases.
Opting for litigation for dispute has its own sets of challenges such as time to resolve cases is long and costly, Procedures are formal and rigid, Settlement of legal disputes by courts are based on one legal litigation, Court ascertain rights and establish new legal relationships between the parties involved in the disputes. After the issuance of rights and establishing a new legal relationship between the parties, the decision by the court shall apply and be binding on the parties and the general public. Court decisions will provide legal justice which may not be necessarily received fairly by the parties and it cannot be ignored that it has the character of "win or lose (Winner Loser), so that the justice provided by the court is symbolic justice, resulting in disappointment for the loser, and can potentially lead to vengeance. To eschew such obstacles, non-litigation methods such as ADR are to be opted in which the time for resolving legal disputes and costs depends on the parties making peaceful efforts, the settlement of legal disputes is informal and not procedural, and parties directly conduct negotiations in the context of peace efforts, using the methods of negotiation, mediation, conciliation and facilitation, Issuance of rights based on an agreement between the parties, parties who resolve legal disputes will issue a court decision that is a win-win solution.
ADR refers to a wide spectrum of structured processes that use non-litigants as a means to settle the disputes in an amicable manner between the parties, directly by the parties themselves or by the involvement of a third neutral party of their choice, who are experts in the subject matter of the dispute and ADR includes inter alia Negotiation, Mediation, Conciliation, Arbitration, Lok-Adalat, that can be effectively used in all civil proceedings in order to get justice.
The non-adversarial approach of ADR offers benefits in the fields of family law and it aimed to reduce conflict which would not only better for the parties themselves, since it focuses on improving communication and developing cooperation, but also for their children, who would thereby avoid exposure to the damaging effects of parental conflicts.
FIVE WAYS TO RESOLVE CONFLICT
The judicial process is an adjudicatory process that is adversarial in nature. The focus here is on past events, determination of rights and liabilities of parties. Under this process, a third party (judge/other authority) decides the outcome, which is binding on the parties and procedures. All decisions are governed, restricted, and controlled by the provisions of the relevant statutes. There's no opportunity for the respective party to communicate directly with each other. Judicial process involves payment of court and litigation fees which can sometimes be exorbitant.
Arbitration is a quasi-judicial adjudicatory process where the arbitrator is appointed by a court or by the parties to decide the dispute between the parties. The award issued during arbitration is binding on the parties and can be challenged only on a few specific grounds. Procedure and decision are governed, restricted, and controlled by the provisions of the Arbitration & Conciliation Act, 1996 Arbitration does not involve the payment of court fees.
Mediation is essentially negotiation and not an adjudicatory process where a mediator facilitates the process in which parties participate directly in the resolution of their dispute and decide the terms of settlement in a mutually agreeable manner irrespective of rights and liabilities. In mediation, procedure and settlement are not controlled, governed or restricted by the mediation rule of 2003. The referral court applies the principles of Order XXIII Rule 3, allowing freedom and flexibility. The proceedings are held in private. The decree or order in terms of the settlement is final and is not appealable. And in case of settlement, in a court initiated mediation, the court fee already paid, shall be refunded.
Conciliation is a non-adjudicatory process in which a third neutral party called a conciliator facilitates the ADR by playing an active role. Conciliation is a party-centered negotiation, and the consent of the parties are mandatory. The agreement is also enforceable as it is a decree of the court as per Section 74 of the Arbitration and Conciliation Act, 1996. It is a structured process having different stages where confidentiality is the key. The settlement can be challenged on limited grounds such as fraud, through writ jurisdiction under article 226 or Article 227 of the Indian constitution as observed by the Supreme Court in the Bhargavi Constructions v. KothakapuMuthyam Reddy2 case.
Lok Adalat is also a non-adjudicatory process if it is established under Section 19 of the Legal Services Authorities Act, 1987. However, Lok Adalat is conciliatory and adjudicatory if it is established under Section 22B of the Legal Services Authorities Act, 1987. Here the presiding officer will be a neutral third party. The consent of the parties are not mandatory for referring a case to Lok Adalat. The award of Lok Adalat is deemed to be a decree of the civil court and is executable under Section 21 of the Legal Services Authorities Act, 1987. The award is not appealable. In Lok Adalat, the scope of negotiation is limited, and parties are not actively and directly involved. Confidentiality is also not observed.
LEGISLATIONS AND PROCEDURES IN INDIAN LEGAL SYSTEM ADVOCATING ADR IN FAMILY DISPUTES
Speedy settlement, multi-disciplinary approach to family issues, informal and simple rules of procedure, and gender justice are considered the foundations of alternative dispute resolution, when it comes to family disputes.
Counseling and conciliation are two crucial elements of family courts and counsellors are not just expected to give counseling but also facilitate reconciliation and peaceful resolution, wherever possible., In India, matrimonial legislation promotes and advocates reconciliation in matrimonial disputes, as a result courts are duty-bound to enforce reconciliation methods in matrimonial disputes. Some of the provisions that reflects and buttresses the idea of counseling and conciliation are:
The Family Court Act, 1984
The act provides for the establishment of family courts with the aim of encouraging conciliation and ensuring speedy settlement of, disputes relating to matrimonial and family affairs, as well as matters related thereto, by taking a different approach than ordinary civil proceedings. Section 9 of the family courts act establishes the responsibility of the family court to help and influence the parties in coming to a resolution on the subject matter.. Section 9 (1) of the act states that. "In every suit or proceeding, a family court shall endeavor in the first instance, where it is possible, to do so consistently with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding, and for this purpose, a family court may, subject to the nature and circumstances of the case, subject to any rules made by the high court, follow such procedure as it may deem fit". Section 9 (2) of the act, directs a family court to delay proceedings, if it seems that the parties have a realistic chance of reaching an agreement, for as long as it believes it is necessary to take appropriate measures. It may also adjourn the proceedings for a period it thinks fit, in order to enable a settlement.
Section 23 (2) of the Hindu Marriage Act, 1955
This act contains similar provisions, which state that before granting any relief, the court shall, in the first instance, in every case, where it is possible, consistent with the nature and circumstances of the case, make every effort to bring the parties together and try to resolve the dispute in an amicable manner and promote and preserve the sacred union of parties to the marriage. In Jagraj Singh v. Birpal Kaur case,3 the court annexed ADR mechanism is mandatory under section 23(2) of the Hindu marriage act.
Section 13 B of the Hindu Marriage act, 1955
This provision was inserted in 1976, to introduce divorce via mutual consent, provide an 18-month time period before a decree for divorce can be initiated and through Section 13B (1), ajudicial separation of one year along with divorce can be pleaded. This may further be followed by another six months of cooling period, under Section 13B (2) for getting a decree to create/bring harmony or reunion.
During the given period of one year, if there's consensus between the parties or if both the parties have opted for reconciliation. then the council will issue a cancellation notice for divorce. Only if the parties are not in consensus, then they can proceed for the second motion. It is also known as final hearing for divorce.
Therefore, only after exploring each and every possibility of settlement, reconciliation, cohabitation, and putting their best efforts, including efforts in terms of Order XXXIIA Rule 3 CPC. Clause (1) of the rule 3 order XXXII A of CPC emphasizes that the Court would make efforts for settlement and assist parties in arriving at the settlement via amicable means if there is a possibility to do so and clause (2) of the order grants court the power to adjourn the proceedings if the court thinks it would buttress and necessary to enable attempts for settlement.
Bringing reconciliation between spouses is the primary objectiveof the court, although the period mentioned in 13B (2) is mandatory, its up to the discretion of the court, taking into consideration the facts and circumstances of the case as observed in Amandeep Singh vs Harveen Kaur(2017)4case. Similar observations were also observed by the Supreme Court in the Nikhil Kumar vs. Rupali Kumar (2016)5 case.
Section 34(2) of the Special Marriage Act, 1954 also endeavours to bring about reconciliation between parties. Also, 2(3) of the Special Marriage Act,1954, aids the court in bringing about reconciliation and is given the authority to delay the proceedings for any reasonable duration and allow attempts to reach an agreement to be made if there is a reasonable possibility.
Provisions related to A D R in Code of Civil Procedure
As per the 129th report of the Law Commission of India, all courts are mandated that once the issues are framed, the disputes should have appertained to arbitration, conciliation, mediation, or negotiation for resolution before proceedings can be continue.
Section 89 of the Civil Procedure Code which accentuates upon settlement of disputes outside the courtroom, gives the court power to refer the matter to the ADR and makes it upto the discretion of the court if they are satisfied that their exists the elements of a settlement which are accepted by both the parties for their remarks and observation. Accordingly court may formulate the terms of a possible settlement through arbitration, conciliation, judicial settlement including settlement through Lok Adalat or mediation and opt for litigation only after the failure of these alternative dispute resolutions.
Legal Services Authorities Act, 1987
The main objective of this act is, to provide legal aid to indigent and weaker sections of the society and to hold Lok Adalats which not only take civil cases but also compoundable criminal cases through the ADR mechanism to resolve disputes in cases pending before courts or any matter in a pre-litigation stage which is unique in India which soriginated from Gandhian principles of Mahatma Gandhi. Technical advancements like E-Lok adalats helped disposal of around 1,27,87,329 cases including 55,81,117 pending cases and 72,06,212 pre-litigation cases by the Lok Adalats in 2021 according to the law ministry. Matrimonial matters are also taken up in Lok Adalats for reconciliation and pacifism and recently DLSA is issuing notices and requesting the parties involved in court matters to opt for Lok Adalats for speedy justice and amicable settlement. According to Section 19(5) of the Legal Service Act 1987, a Lok Adalat has the jurisdiction to determine and arrive at a compromise or settlement between the parties in a dispute.
CONCLUSION
Family disputes and disputes within the institution of marriage shouldn't be viewed as disputes aimed at debilitating and lacerating each other. The purpose of alternate dispute resolution methods is to allow for an amicable resolution of family matters. This practice should be given all the support it deserves. The development of mediation in resolving family disputes in India will surely strengthen the system's capacity to deliver justice. ADR methods like mediation and conciliation can save the institution of marriage to some extent. The Supreme Court in Sangeetha v. Suresh Kumar6 case, had observed the significance of reconciliation in matrimonial dispute and advised the parties to try and settle the dispute and bury their differences and start afresh their matrimonial life, keeping in view the welfare and interest of their children.
Mediation can be one of the most effective alternative dispute resolution strategies in cases relating to family and matrimonial disputes in the Indian context. The fact that this strategy focuses on a non-coercive and consensual process to resolve issues between parties, makes it extremely useful. It also saves time, and reduces the possibility of any ill feelings or estranged relationships that may arise as a result of the parties' decision to go to court. This is the reason why mediation has been widely accepted for resolving family disputes, not only in India, but also in many foreign countries like the United States of America, Canada, and England.
A family conflict is more than just a matter of law and facts; it is also a matter of the parties' feelings. Mediation, like equity, was designed as a kind of justice that did not require the application of law. The third party, i.e., the mediator, facilitates negotiations between the disputants and develops an environment of comfort for both the parties.
Conciliation in family disputes is also an optimal option for dispute resolution whether it's pre or post-litigation. Courts have always been in favour of amicable dispute resolution and have observed and reiterated multiple times that the law aims to save institutions of marriage and family rather than severance. Thus, although not mandatory, giving alternate modes of dispute resolution a chance in the resolution of family matters is the norm in the Indian legal system and this practice should be given all the support that it deserves. ADR is based on a win-win situation for both the parties.
In the Gaurav Nagpal v. Sumedha Nagpal7 case, the Supreme Court observed that efforts should be made at conciliation and in bridging communication gaps so that people do not rush to courts.
If a dispute between family members is commercial in nature, then it can also be mediated through the Commercial Courts Act, 2015. Section 12A of the same act underlines pre-institution mediation and settlement and makes it mandatory for the plaintiff to try and resolve the dispute via pre-institution mediation before instituting a suit.
Section 2 of the act defines commercial disputes as commercial disputes inter alia joint venture agreements, shareholders agreements, partnership agreements, etc.
Joint family businesses and disputes arising out of them are common in India. Therefore opting for ADR would not only economize the process, but also settle the dispute, speedily and amicably.
In this regard, UNCITRAL model Law on international commercial mediation and international settlement agreements can be useful. The measures are designed to assist states in reforming and modernizing laws on mediation procedures. I It provides uniform rules and harmonization in respect of the mediation process across the globe and encourages the use of mediation by ensuring greater predictability and certainty in its use.
It deals with the procedural aspects of mediation, inter alia, appointment of conciliators, the conduct of mediation, and communication between the mediators and other parties. It also addresses the confidentiality and admissibility of evidence in the proceedings as well as post-mediation issues like enforceability of the settlement agreement.
The Supreme Court in R.M. Investments and Trading Co. v. Boeing Co.(1994) case8 had interpreted the term 'commercial' and had incorporated all 'commercial relationships' in support of relationships consisting of family, cultural, social, economic or political nature. Hence, compliance and adoption of the UNCITRAL Model Law would further galvanise the growth of ADR in India.
Every country aspires to become a hub of arbitration. Looking at the potential and trends, India too can be an ADR hub like Singapore, Paris, London, and Geneva.
There's a lot of progress in resolving corporate and diplomatic issues via ADR mechanism. However, there's not much progress in the area of resolving family disputes through ADR mechanism even in Singapore, Paris, London, and Geneva. So, the role of government in providing optimal conditions to cultivate ADR mechanism becomes significant.
The ongoing Covid-19 pandemic has denied justice to a large section of the society. There has been a deluge of disputes and plethora of cases pending before courts. To deal with the pending cases, NITI Aayog, a premier policy think tank of the Union government, has allowed dispute resolution online Online dispute resolution (ODR) uses digital technology and techniques of alternative dispute resolution, inter-alia arbitration, conciliation and mediation.
India has provisions to encourage alternative dispute resolution methods in the existing litigation setup, but most people do not understand that dispute resolution can be done outside the court (non-litigation) too. Due to this ignorance, people think that court is the final authority when it comes to solving family disputes.
Footnotes
1. 1979 AIR 1369
2. (2018) 13 SCC 480
3. 2007 (2) SCC 564
4. AIR2017SC 4417
5. (2016) 13 SCC 383
6. JT 2008(8) SC 521
7. AIR 2009 SC 557
8. 1994 SCC (4) 541
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