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.

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.
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.

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.

Section 34 of the Special Marriage Act, 1954. – The provisions of 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

Section 14 of the Hindu Marriage Act, 1955 is another pre-emptive measure provided by the said Act,
which was presumably designed with the object of preventing hasty recourse to legal proceedings by
the spouses without making a real effort to reconcile and save their marriage from being dissolved. In
this context, it may be useful to quote Section 14(1) HMA which states that “Notwithstanding anything
contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of
marriage by a decree of divorce, 12[unless at the date of presentation of the petition one year has
elapsed since the date of marriage.]”

Section 14(2) HMA further states that “In disposing of any application under this section for leave to
present a petition for divorce before the [expiration of one year]14 from the date of marriage, the court
shall have regard to the interests of any children of the marriage and to the question whether there is a
reasonable probability of a reconciliation between the parties before the expiration of the [said one
year]15.” Section 29 of the SMA contains similar provisions with similar bars
Petition for Divorce by Mutual Consent. – Under Section 13 B HMA and Section 28 SMA, divorce by
mutual consent is available. However, it is not granted instantly and a joint motion made by both parties
in the first instance has to wait for 6 months but not longer than 18 months to be confirmed for granting
a divorce by mutual consent in the second motion. It is evident that reconciliation may be out of
question in a petition for divorce by mutual consent. But there is an inbuilt opportunity for reconciliation
if parties wish to avail of it. When a joint petition is presented, it is adjourned for a minimum period of
six months. This period is to enable them to think over the matter of divorce and if the parties want to
prolong their consideration of reconciliation, they can do so for another year (total period is eighteen
months, within which they can move the motion of a decree of divorce). Section 28 SMA contains similar
provisions with similar bars. The logic in these enactments is again to provide for reconciliation in a
thinking period between the first and the second motion.

Section 23(2) and section 23(3) of The Hindu Marriage Act Section 23 (2) HMA states that before
proceeding to grant any relief under it, there shall be a duty of the court in the first instance, in every
case to make every endeavour to bring about reconciliation between parties where relief is sought on
most of the fault grounds for divorce specified in Section 13 HMA. Section 23 (3) HMA makes a provision
empowering the court on the request of parties or if the court thinks it just and proper to adjourn the
proceedings for a reasonable period not exceeding 15 days to bring about reconciliation.

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.

Order XXXIIA 6 of the Code of Civil Procedure

It's essential to note that all proceedings under the Hindu Marriage Act and the Special
Marriage Act are regulated by the provisions of the CPC. When matters regarding the
family are concerned, an correction can be made to the Code of Civil Procedure in
1976. This correction handed for the obligatory agreement procedures in all matrimonial
proceedings.

At this juncture, it's also indispensable to take a note of Section 9 of the Family Courts
Act which states that:
In every suit or proceeding, bid shall be made by Family Court in the first case, where
it's possible to do so consistent with the nature and circumstances of the case, to help
and persuade the parties in arriving at a agreement in respect of the subject- matter of
the suit or proceeding and for this purpose a Family Court may, subject to any rules
made by the High Court, follow similar procedure as it may suppose fit.

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.

Case Laws
Baljinder Kaur v. Hardeep Singh
Parties filed a petition before the court for divorce. Court before granting divorce,
attempted reconciliation between parties stating that reconciliation as a form of
alternative resolution of disputes is mandatory in divorce proceedings. Court then
accepted the divorce petition stating that the main aim should be preserving the
institution of marriage and its sanctity. The emphasis should be on bringing parties to
mutual agreement and not to focus strictly on the rules of procedure.

Love Kumar v. Sunita Puri

In this case, one of the parties did not appear before the court at the time of
reconciliation proceedings due to which court passes a decree of divorce. When the
matter was taken before the High Court, the decree was set aside stating that the main
aim of the courts in divorce proceedings must be to bring parties to mutual agreement.
The lower court acted in haste to pass the decree of divorce here.

Mohinder Pal Kaur v/s. Gurmeet Singh

In this case, parties filed the divorce petition within 6 months of marriage but the said
petition has been kept pending for a period of 6 months already. Efforts have been
made to bring down the parties to settlement using reconciliation, but resulted in no
success. The law says that before passing a decree of divorce, atleast 6 months should
have elapsed from the date of filing of the case. But in this case, it was stated that a
decree for divorce can be pronounced if the petition has been pending for more than 6
months and efforts of reconciliation has been made between the parties, but was to no
success.

In Hitesh Narendra Doshi V/s. Jesal Hitesh Doshi, the minimum six month waiting
period from the date of the presentation of the petition for severing the marital ties
between the parties by mutual consent under section 13-B (2) of the Hindu Marriage Act
was held to be mandatory and it was held that the Court has no power to relax the said
compulsory time wait of six months and cannot pass a decree of divorce forthwith.