ADR METHODS & SETTLEMENTS OF FAMILY
DISPUTES AND THE ROLE OF THE
CONCILIATOR
Dr. Y.F. Jayakumar
In the recent times family disputes have increased enormously due to the fast changing of social environment. The multi-faceted problems affecting human life have brought acute stress and strain on marriage and family. Problems like divorce, dissolution of marriage, dowry and domestic violence, childcare and custody, extra-marital relations, NRI marriages, on line marriage agreements, test tube babies and the rights and duties of their parents, break down of marriage and other related matrimonial issues acquire gigantic shape and going out of control, inspite of the effective steps have taken by the law and the society.
ALTERNATIVE DISPUTE RESOLUTION METHODS
AND
FAMILY DISPTES
Arbitration, Conciliation, Negotiations, Mediation and Settlement are dispute resolution mechanisms recognised in the entire world. Because the process is less expensive, less time consuming does not permit dilatory tact's of parties to prolong litigation. Conciliation, Mediation and Settlement methods are generally used as appropriate methods in resolving the family disputes. Conciliation is consensual and help the parties in settlement is of the parties themselves. However, the method of arbitration, which is an adjudicatory in nature, can be used in settling of family property. A partition may be effected by arbitration. If the members of the Joint family enter into an agreement under which they appoint arbitrators for deciding the Joint family property among themselves, the severance of status takes place from the date of agreement. If reference to arbitration is made by the guardian of a minor coparcener, the award will be binding on the minor, only if it is for the benefit of minor. Institutions like Family Counseling Centres, Non - governmental Organisations, Social Welfare Organisations and National Commission for Women and the State Redressal Cells are playing a crucial and pivotal role in redressing the family disputes in addition to the courts and forums established under the Civil Procedure Core, 1908, Family Courts Act, 1984, and the Legal Services Authority Act, 1987.
Statutory Frame work and Conciliation
Conciliation and Settlement had received statutory recognition in India in adjudication of family disputes even before the enactment of Part III of Arbitration and Conciliation Act, 1996. The relevant portions of Law regarding conciliation and settlement of family disputes are given below:
In any matrimonial suit, before proceeding to grant any relief, it shall be the duty of the court in the first instance, if it is possible to do so consistently with the nature and circumstances of the case, to make every endeavor to bring about reconciliation between the parties. However, the reconciliation cannot be applied in any proceedings wherein relief if sought on any of the grounds specified in Clause II to VII of sub-section (1) of Section 13 1. For the purpose of aiding the court in bringing about such reconciliation the court may , if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period of not exceeding 15 days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parities fail to name any person, with directions, to report to the court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceedings have due regard to the report.
In every suit or proceedings relations to the matters concerning the family an endeavor shall be made by the court in the first instance, where it is possible to do so consistently 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. If in any such suit it appears to the court that there is a reasonable possibility of settlement between the parties, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such settlement.
The Preamble of the Family Courts Act, 1984 itself contains the obligations on the Family Court to endeavor to effect a reconciliation or settlement between the parties to the family disputes. The proceedings of the court at the initial stage will be informal. Section 9 of the Act envisages the method to be adopted for a settlement. The role of family court's judge is very important. He is expected to give an impression to the parties that he is their well wisher and his endeavor is to settle the dispute amicably. The Judge of a family court shall assist and persuade the parties to come to a settlement rather than sit at their loggerheads. In this connection he may take the help of experts and counselors.
A Lok Adalat shall have jurisdiction to determine and arrive at a compromise or settlement between the parties to a dispute in respect of any matter falling within the jurisdiction of any civil, criminal or revenue court or any tribunal constituted under any law for the law for the time being in force in the area for which the Lok Adalat is organised.
Part III of the above Act deals with conciliation. Section 61 of the Act reads as "save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, The part apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto".
Part III shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.
Shall endeavor
The above statutory provisions reveal that the court at the first instance shall endeavor to settle matrimonial disputes through the process of conciliation. Here the word 'shall endeavor' denotes that before awarding decree the matrimonial court should make an effort for conciliation and settlement of disputes by providing a congenial atmosphere to the parties. In every number of cases the High Courts remanded the verdicts of the lower courts for not making reasonable human efforts for conciliation and settlement. In Sangeetha v. Suresh Kumar. The Supreme Court felt need of reconciliation in a dispute between wife and husband. In this case divorce petition was filed by the respondent husband at Delhi and maintenance as well as criminal proceedings were initiated by the appellant wife at Baroda. A transfer petition was filed u/s.25 of the Civil Procedure Code and during the pendency of the transfer petition, efforts were made for reconciliation. The court took note of para 5 of the counter affidavit where in it was stated that the respondent husband was willing to withdraw the divorce petition in case the petitioner wife was ready and willing to settle with him and restore marital life. The Court saw a ray of hope in bringing reconciliation between the parties and suggested them to try and settle the dispute and bury their differences and start afresh their matrimonial life keeping in view of the welfare and interest of their children. The Court adjourned the matter for some time to enable the parties to live together. The Court noted the understanding of the wife and husband. The parties assured the Court that all proceedings pending before them shall be withdrawn by them from the respective courts. The Court recorded their message and directed that the parties shall take appropriate steps to withdraw the pending cases from the respective courts within 3 weeks. The transfer petition was accordingly disposed of and consigned to records.
Reasonable Human effort for Conciliation
Sakri v. Chhanwarlal. In this case the Rajasthan High Court remanded a matrimonial dispute to the trial court with a direction to make effort at bringing about reconciliation. The court pointed out that while making of an endeavor to bring about conciliation even at the beginning of the proceedings may be desirable the requirement of the law will be amply satisfied if before the final stage of the case, namely the granting of relief the court makes such an endeavor. The words in the first instance only denotes that the court must make endeavor before granting relief. The effort has to be reasonable human effort and must be made in every case, which means all cases where a relief as contemplated by section 23(1) has to be granted.
Chhotelal v. Kamala Devi:- The Patna High Court observed that the law enjoins upon the court a duty to make a sincere effort at reconciliation before proceedings to deal with the case in the usual manner. The court also pointed out that even the advocates for the parties submit that it is not possible to have a reconciliation, still there is a duty on the court ot make an endeavor for bringing about reconciliation.
Reghunath Prasad v. Urmila Devi: It was held that efforts at reconciliation is to be made by the court right from the start of the case and not only after the closure of the final hearing of the case but before the court proceed to grant relief under the provisions of law.
Kivubai v. Ningappa. The learned judges of the Mysore High Court observed while the trial court has a duty to perform by making every endeavor to bring about a reconciliation in the parties u/s.23(2), the matter does not affect the jurisdiction of the court. It was pointed out that if no endeavor had been made by the trial court, it would be a serious omission which has to be taken into account.
Role of the Conciliator under Arbitration & Conciliation Act 1996
Conclusion and Suggestions
The family counseling and conciliation service is usually a three tier system namely (1) pre-martial counseling (2) conciliation and counseling in the process of adjudication and (3) post adjudicatory counseling. Nos. 1 & 3 are not part of family court system, but a community service is available to persons in part of family court system, but a community service is available to persons in distress. In family law the conciliation process begins only when there is any family dispute arises either in the civil court or Family court. The parties with whom the conciliator should mediate may be in a state of emotion, worried, frightened, depressed, hurt, guilty and feeling lost and lonely, therefore special care and attention, sympathy, guidance and advise are necessary. Hence, the role of the conciliator is a challenging task, dynamic and crucial. Moreover, the conciliator's report has a due regard and consideration in pronouncement of judgement. Conciliation and Mediation in family dispute resolution will yield good result if the following care and caution is taken at the time of appointment of the conciliator.