ADR - WITH SPECIAL REFERENCE TO FAMILY DISPUTES

A DISSERTATION

Submitted to the

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

IN PARTIAL FULFILLMENT FOR THE AWARD OF DEGREE OF

MASTER OF LAW (LL.M) ONE YEAR COURSE

Submitted by Hitesh Soni

ROLL NO. 24045

UNDER THE SUPERVISION OF

DR. KARAN JAWANDA

ACADEMIC SESSION: 2024-2025

i
 STUDENT’S DECLARATION

I, Hitesh Soni, hereby solemnly declare that the Dissertation titled “ADR - WITH SPECIAL
REFERENCE TO FAMILY DISPUTES” is submitted to University Institute of Legal Studies
(UILS), Panjab University, Chandigarh in partial fulfilment of the requirements of the LL.M.
(One Year) Course. This is an original piece of my research work and all sources used to
complete this Dissertation have been duly acknowledged to the best of my knowledge. Also, no
part of this work has been submitted for any other degree in any other University/Institute. As
per the rules Plagiarism of this research work has been checked and certificate of Plagiarism is
attached along with.

Hitesh Soni
Roll No. 24045

ii
 SUPERVISOR’S CERTIFICATE

This is to certify that the Dissertation titled “ADR - WITH SPECIAL REFERENCE TO
FAMILY DISPUTES” submitted to the University Institute of Legal Studies, Panjab
University in partial fulfillment of the requirements of LL.M. (1 Year) Course 2nd Semester, is
a bona fide work and has been done under the supervision of the undersigned. I hereby confirm
that this is an original piece of work and has not been published anywhere else other than this.

The dissertation has been prepared as per the requisite format and pattern advised by the
organization. The work is up to mark for evaluation for the standard of LL.M. course.

PLACE: Chandigarh SUPERVISOR’S SIGNATURE

DATE: Dr. Karan Jawanda

University Institute of Legal Studies (UILS)

Panjab University

iii
 ACKNOWLEDGEMENT

It is my genuine pleasure to take this opportunity to acknowledge and extend my gratitude to

many people who have played an instrumental role in completion of this dissertation. To
commence with, I owe my deepest gratitude to my Supervisor Dr. Karan Jawanda, University
Institute of Legal Studies, Panjab University, Chandigarh. Her expertise, invaluable guidance,
constant encouragement, patience and healthy criticism added considerably to my experience.
I am also thankful to the Library Staff of University Institute of Legal Studies, Panjab
University, Chandigarh for providing me with their invaluable assistance whenever required.

DATED: HITESH SONI

LLM (ONE YEAR)

ROLL NO: - 24045

iv
 PREFACE

The pursuit of justice in a society as diverse and dynamic as India demands innovative approaches
that go beyond conventional courtroom litigation. This dissertation titled “Alternative Dispute
Resolution – With Special Reference to Family Disputes” emerges from the critical understanding
that traditional adjudication, with its adversarial posture and procedural delays, often fails to
address the emotional and relational dimensions intrinsic to family conflicts. As a student of law
deeply interested in the intersection of legal procedure, social justice, and human experience, I
have undertaken this research to explore how Alternative Dispute Resolution (ADR) mechanisms,
particularly mediation and conciliation, can offer a more humane, efficient, and sustainable path
to resolving familial disputes in the Indian legal context.

India’s legal landscape, though rich in statutory protections and procedural frameworks, is
currently grappling with an overwhelming burden of judicial backlog. Family disputes, which
ideally require prompt and sensitive resolution, are often caught in the web of protracted litigation.
Through this dissertation, I attempt to interrogate the limitations of litigation and examine how
ADR, in both its statutory and informal forms, can effectively complement or even replace
courtroom adjudication in specific family law scenarios. The research draws from the historical
roots of dispute resolution in India-from ancient panchayat traditions to the formal structures
embedded in modern statutes like the Mediation Act, 2023 and the Family Courts Act, 1984.

The genesis of this dissertation can be traced to my classroom engagements with procedural law,
family law, and mediation practices, which stimulated a critical inquiry into the practical viability
of ADR in resolving sensitive disputes such as divorce, child custody, maintenance, and
inheritance. The deeply personal nature of these conflicts necessitates a jurisprudence that
prioritizes relationship preservation, emotional healing, and mutually agreeable solutions-
principles that lie at the heart of ADR. This research also finds grounding in recent jurisprudential
developments, including landmark decisions by the Hon’ble Supreme Court and High Courts
which increasingly mandate or recommend ADR in family disputes. These developments
prompted a deeper doctrinal exploration of the statutory basis, judicial trends, and institutional
frameworks surrounding ADR in India.

The dissertation is not merely a theoretical exercise but seeks to provide a comprehensive doctrinal
and comparative analysis. It examines how various religious personal laws-Hindu, Muslim,

v
Christian, and Parsi-interact with ADR mechanisms and explores whether the pluralistic legal
system in India allows adequate space for non-adversarial resolution. A detailed analysis of
statutory provisions such as Section 89 of the Code of Civil Procedure, 1908 and Section 9 of the
Family Courts Act, 1984 is conducted to identify the scope and limitations of ADR referrals by
courts. Additionally, the dissertation critically evaluates the impact of the Mediation Act, 2023, a
recent but significant legislative intervention, with particular attention to its potential for reshaping
the landscape of family dispute resolution through institutional support and legal enforceability of
mediated settlements.

While doctrinal in methodology, this research does not lose sight of the practical challenges on the
ground. The study reflects on systemic issues like insufficient mediator training, gender bias,
cultural resistance, lack of public awareness, and uneven implementation across Indian states. I
have attempted to incorporate interdisciplinary insights wherever relevant, drawing upon
psychology, sociology, and comparative law to enrich the analysis. In this regard, international
best practices, particularly from jurisdictions like the United Kingdom, Australia, and Singapore,
are studied to contextualize the Indian experience and draw parallels or contrasts where
appropriate.

This dissertation also aspires to contribute to ongoing legal and policy reform. The final chapter
offers practical recommendations based on the doctrinal gaps and implementation challenges
identified during the course of research. These include proposals for integrating mandatory pre-
litigation mediation, enhancing gender sensitivity in mediation practice, promoting culturally
competent mediation models, and strengthening institutional mediation centers. The aim is to
create a framework wherein ADR is not perceived as an optional or secondary route, but as a
robust, accessible, and legitimate mechanism for achieving family justice.

The writing of this dissertation was an intellectually enriching journey that enabled me to traverse
a wide array of legal doctrines, case laws, statutory materials, and policy reports. It was also a
deeply personal journey, as the emotional nuances involved in family disputes resonated with real-
life experiences that I have observed in society. I am particularly indebted to my supervisor, Dr.
Karan Jawanda, whose unwavering academic guidance, constructive feedback, and
encouragement were instrumental throughout the research process. Her inputs helped me navigate
complex legal debates with clarity and precision. I also extend my sincere gratitude to the faculty

vi
and library staff of University Institute of Legal Studies, Panjab University, whose assistance
and resources played a vital role in shaping this work.

I must also acknowledge the contributions of various legal scholars, judges, and researchers whose
works have been cited and critically engaged with in this study. Their intellectual labor provided a
rich foundation upon which this dissertation could be built. Furthermore, I am thankful for the
support and patience of my family and peers, whose belief in the value of this academic endeavor
kept me motivated through the most demanding phases of this journey.

Lastly, I recognize that no research is without limitations. As a doctrinal study, this dissertation is
primarily confined to textual analysis of laws and precedents. While every attempt has been made
to ensure objectivity, coherence, and relevance, certain empirical dimensions-such as litigant
experiences and statistical success rates of ADR mechanisms-could not be comprehensively
addressed due to scope and access constraints. I hope that future researchers will build upon this
work to explore those aspects in greater detail through fieldwork and data-driven methodologies.

vii
 LIST OF ABBREVIATIONS

S. No. Abbreviation Full Form

1. ADR Alternative Dispute Resolution

2. ADRC Alternative Dispute Resolution Centre

3. AIR All India Reporter

4. BA Bar Association

5. BNS Bharatiya Nyaya Sanhita

6. BNSS Bharatiya Nagarik Suraksha Sanhita

7. CPC Code of Civil Procedure

8. CrPC Code of Criminal Procedure

9. DIAC Delhi International Arbitration Centre

10. DV Act Protection of Women from Domestic Violence Act

11. FCRA Foreign Contribution (Regulation) Act

12. GWA Guardians and Wards Act

13. HC High Court

14. HMA Hindu Marriage Act

15. ICA Indian Council of Arbitration

16. IPC Indian Penal Code

viii
17. LCI Law Commission of India

18. LSA Legal Services Authority

19. MCPC Mediation and Conciliation Project Committee

20. NALSA National Legal Services Authority

21. NCPCR National Commission for Protection of Child Rights

22. NHRC National Human Rights Commission

23. ODR Online Dispute Resolution

24. PWDVA Protection of Women from Domestic Violence Act

25. SCC Supreme Court Cases

26. SC Supreme Court

27. SLSA State Legal Services Authority

28. SM Act Special Marriage Act

29. UNCITRAL United Nations Commission on International Trade

Law

30. SC Supreme Court

ix
 TABLE OF CASES
1. A.K. Kraipak v. Union of India, AIR 1970 SC 150.

2. A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386.

3. ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

4. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.

5. Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.

6. Ammini E.J. v. Union of India, AIR 1995 Ker 252.

7. Ammini v. Union of India, AIR 1995 Ker 252.

8. Anita v. Satish, 2022 SCC OnLine Del 2395.

9. Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.

10. Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.

11. Avneesh Sood v. Meenakshi Sood, 2018 SCC OnLine Del 9744.

12. B.P. Moideen Sevamandir v. A.M. Kutty Hassan, (2009) 2 SCC 198.

13. B.S. Krishnamurthy v. B.S. Nagaraj, (2010) 11 SCC 491.

14. Baljinder Kaur v. Harjeet Singh, 2007 SCC OnLine P&H 426.

15. Behram Khurshed Pesikaka v. State of Bombay, AIR 1955 SC 123.

16. Bhanumati v. State of Uttar Pradesh, (2010) 12 SCC 1.

17. Bharat v. Nisha, 2013 SCC OnLine Del 2019.

18. Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

19. Bhupinder Singh v. Dalbir Kaur, 2009 SCC OnLine P&H 258.

20. Bipin Chandra Jaisingbhai Shah v. Prabhavati, AIR 1957 SC 176.

21. Bishop v. Bishop, [2015] FamCA 999.

22. Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.

23. Centre for Legal Research v. State of Kerala, (2004) 2 SCC 65.

x
24. Danamma v. Amar, (2018) 3 SCC 343.

25. Daniel Latifi v. Union of India, (2001) 7 SCC 740.

26. Daniel Latifi v. Union of India, AIR 2001 SC 3958.

27. Danish Ahmed v. Union of India, 2016 SCC OnLine Del 3761.

28. Elizabeth Antony v. Michel Charles John Chown Lengera, (1990) 3 SCC 333.

29. Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42.

30. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.

31. G. Suguna v. Chief Engineer, AIR 2019 Mad 21.

32. Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

33. Gian Singh v. State of Punjab, (2012) 10 SCC 303.

34. Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

35. Goode v. Goode, [2006] FamCA 1346.

36. Gulam Mustafa v. State, 2001 SCC OnLine Del 877.

37. Guru Nanak Foundation v. Rattan Singh, AIR 1981 SC 2075.

38. Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270.

39. Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC 400.

40. H v. W (Cap on Wife’s Share), [2013] EWHC 4105 (Fam).

41. Harbans Singh v. Gurdev Singh, 2019 SCC OnLine P&H 2114.

42. Haresh Dayaram Thakur v. State of Maharashtra, (2000) 6 SCC 179.

43. Harsora v. Harsora, 2016 SCC OnLine Del 5445.

44. Hema Reddy v. Rakesh Reddy, 2003 SCC OnLine AP 1142.

45. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.

46. Hussain v. Union of India, (2017) 5 SCC 702.

47. Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

xi
48. In re Lee, 411 S.W.3d 445 (Tex. 2013).

49. In re Marriage of McGinnis, 7 Cal. Rptr. 3d 518 (Cal. Ct. App. 2003).

50. Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588.

51. Indra Sarma v. VKV Sarma, (2013) 15 SCC 755.

52. InterGlobe Aviation Ltd. v. N. Satchidanand, (2011) 7 SCC 463.

53. Jagannath Patnaik v. State of Orissa, (2007) 2 SCC 97.

54. Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719.

55. K.K. Modi v. K.N. Modi, (1998) 3 SCC 573.

56. K.N. Govindan Kutty Menon v. C.D. Shaji, (2010) 2 SCC 148.

57. K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

58. K.S. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

59. Kale v. Deputy Director of Consolidation, AIR 1976 SC 807.

60. Kavina Nariman v. Rohinton Nariman, 2012 SCC OnLine Bom 1011.

61. Kessey v. Kessey, [1994] FLC 92-495.

62. Khatri v. State of Bihar, AIR 1981 SC 928.

63. Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479.

64. Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150.

65. Laing v. Laing, 741 S.E.2d 649 (N.C. Ct. App. 2013).

66. M.P. Gangadharan v. State of Kerala, 2006 SCC OnLine Ker 253.

67. M. Siddiq (D) Thr. LRs v. Mahant Suresh Das, (2019) 18 SCC 1.

68. Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640.

69. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

70. Manisha Tyagi v. Deepak Kumar, (2010) 4 SCC 339.

71. Manju Bhatia v. New India Assurance Co., AIR 1997 Del 147.

xii
72. Manju Bhatia v. NDMC, 1997 SCC OnLine Del 812.

73. Mary Sonia Zachariah v. Union of India, 1995 SCC OnLine Ker 409.

74. Masroor Ahmed v. State (NCT of Delhi), 2008 SCC OnLine Del 1362.

75. Meher Master v. Naoroji Master, 2010 SCC OnLine Bom 1681.

76. Mini v. Gopalakrishnan, 2011 SCC OnLine Ker 541.

77. Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945.

78. Molly Joseph v. George Sebastian, AIR 1997 Ker 187.

79. Moti Ram v. Ashok Kumar, (2011) 1 SCC 466.

80. Mrs. Mary Sonia Zachariah v. Union of India, AIR 1995 Ker 252.

81. Narendra v. K. Meena, (2016) 9 SCC 455.

82. Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

83. ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705.

84. Pirojsha Hormusji v. Pirojbai, AIR 1943 Bom 433.

85. Poonam v. Sumit Tanwar, 2010 SCC OnLine Del 3884.

86. Radmacher v. Granatino, [2010] UKSC 42.

87. Rajiv Bhatia v. Govt. of NCT of Delhi, 2011 SCC OnLine Del 4975.

88. Rani v. Krishan Kumar, 2012 SCC OnLine Del 4937.

89. Ravi Kumar v. Julmi Devi, 2010 SCC OnLine Jhar 792.

90. Re D (A Child), [2014] EWCA Civ 315.

91. Rhoades v. Rhoades, [2008] FMCAfam 15.

92. Roshan Lal v. Madan Lal, AIR 1965 SC 1417.

93. Roshan Lal v. Mohan Singh, AIR 2002 SC 2434.

94. Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.

95. Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

xiii
96. Rukmini v. State Bank of India, 2015 SCC OnLine Mad 13757.

97. Ruttonsha D. Sethna v. Mehroo R. Sethna, 2012 SCC OnLine Bom 277.

98. S.D. Joshi v. High Court of Bombay, (2011) 1 SCC 252.

99. Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

100. Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

101. Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559.

102. Sampath Kumar v. Shilpa, 2018 SCC OnLine Kar 812.

103. Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency

Ltd., (2016) 10 SCC 458.

104. Sarla Mudgal v. Union of India, (1995) 3 SCC 635.

105. Satya v. Teja Singh, (1975) 1 SCC 120.

106. Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73.

107. Secretary, Ministry of Chemicals v. Cipla Ltd., (2003) 7 SCC 1.

108. Shah Bano Begum v. Mohammad Ahmed Khan, AIR 1985 SC 945.

109. Shah Bano v. Mohd. Ahmed Khan, AIR 1985 SC 945.

110. Shakti Vahini v. Union of India, (2018) 7 SCC 192.

111. Shaleen Kabra v. Shiwani Kabra, 2012 SCC OnLine Del 4675.

112. Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329.

113. Shalu Ojha v. Prashant Ojha, 2007 SCC OnLine Del 586.

114. Shayara Bano v. Union of India, (2017) 9 SCC 1.

115. Sheeba A. v. Reji A. John, 2009 SCC OnLine Ker 4492.

116. Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.

117. Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591.

118. State of Haryana v. Darshana Devi, AIR 1979 SC 855.

xiv
119. State of Maharashtra v. Praful Desai, (2003) 4 SCC 601.

120. State of Punjab v. Jalour Singh, (2008) 2 SCC 660.

121. Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991.

122. Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya, (2003) 5 SCC 531.

123. Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632.

124. Sulekha v. Ramesh Kumar, 2010 SCC OnLine Kar 3847.

125. Suhasini Rajesh Prasad v. Rajesh Prasad, 1999 SCC OnLine Bom 512.

126. Suhasini v. Ashok Kumar, 2007 SCC OnLine Del 1376.

127. Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

128. Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450.

129. Susan Thomas v. Jose Thomas, 2013 SCC OnLine Ker 32317.

130. Sushila Devi v. Bharat Singh, 2018 SCC OnLine Del 1350.

131. Swapnil v. Shraddha, 2020 SCC OnLine Bom 22.

132. V. Ravi Chandran v. Union of India, (2010) 1 SCC 174.

133. Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409.

134. Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.

135. Vishwa Lochan Madan v. Union of India, (2014) 7 SCC 707.

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 TABLE OF CONTENT

STUDENT’S DECLARATION .................................................................................................... ii

SUPERVISOR’S CERTIFICATE .............................................................................................. iii

ACKNOWLEDGEMENT ........................................................................................................... iv

PREFACE ...................................................................................................................................... v

LIST OF ABBREVIATIONS ................................................................................................... viii

TABLE OF CASES ....................................................................................................................... x

TABLE OF CONTENT ............................................................................................................. xvi

CHAPTER 1: INTRODUCTION ................................................................................................ 1

1.1 THE CONCEPT OF DISPUTE RESOLUTION ........................................................... 1

1.2 UNDERSTANDING FAMILY DISPUTES IN INDIAN CONTEXT .......................... 2

1.3 SIGNIFICANCE OF ADR IN PRESENT LEGAL AND SOCIAL CONTEXT .......... 4

1.4 STATEMENT OF THE PROBLEM.............................................................................. 6

1.5 OBJECTIVES OF THE STUDY.................................................................................... 8

1.6 RESEARCH QUESTIONS ............................................................................................. 9

1.7 HYPOTHESIS................................................................................................................. 9

1.8 RESEARCH METHODOLOGY .................................................................................. 10

1.9 SCOPE AND LIMITATIONS OF THE STUDY......................................................... 11

1.10 REVIEW OF EXISTING LITERATURE ................................................................. 12

1.10.1 Books and Monographs ............................................................................................. 12

1.10.2 Journal Articles and Research Papers ........................................................................ 16

1.11 SCHEME OF CHAPTERS ........................................................................................ 20

CHAPTER 2: CONCEPTUAL UNDERPINNINGS OF ADR IN LAW ............................... 23

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 2.1 HISTORICAL EVOLUTION OF ADR ....................................................................... 23

2.2 NATURE, MEANING AND SCOPE OF ADR ........................................................... 25

2.3 THEORETICAL JUSTIFICATIONS FOR ADR ....................................................... 28

2.3.1 Natural Justice and Restorative Justice Principles ....................................................... 28

2.3.2 Jurisprudence of Harmony and Compromise............................................................... 30

2.4 CLASSIFICATION OF ADR METHODS .................................................................. 33

2.4.1 Arbitration – Definition, Scope, Procedure ................................................................. 33

2.4.2 Conciliation – Features and Legal Standing ................................................................ 35

2.4.3 Mediation – Concepts and Characteristics ................................................................... 37

2.4.4 Negotiation – Informal Dispute Settlement ................................................................. 39

2.4.5 Lok Adalats – People’s Courts in India ....................................................................... 41

2.4.6 Online Dispute Resolution (ODR) – A Modern Alternative ....................................... 44

CHAPTER 3: LEGAL FRAMEWORK OF ADR IN INDIA................................................. 47

3.1 CONSTITUTIONAL PROVISIONS SUPPORTING ADR ........................................ 47

3.1.1 Article 14 – Equality Before Law ................................................................................ 47

3.1.2 Article 21 – Right to Life and Access to Justice .......................................................... 49

3.1.3 Article 39-A – Free Legal Aid ..................................................................................... 51

3.2 STATUTORY FRAMEWORK...................................................................................... 53

3.2.1 Arbitration and Conciliation Act, 1996........................................................................ 53

3.2.2 Code of Civil Procedure, 1908 – Section 89 and Order X ........................................... 55

3.2.3 Legal Services Authorities Act, 1987 .......................................................................... 56

3.2.4 Family Courts Act, 1984 .............................................................................................. 59

3.2.5 Mediation Act, 2023 ................................................................................................... 61

3.3 JUDICIAL DECISIONS ENCOURAGING ADR ....................................................... 63

3.3.1 Precedents on Mediation Referral ................................................................................ 63

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 3.3.2 Interpretation of Section 89 CPC ................................................................................. 65

3.4 INSTITUTIONAL MECHANISMS FOR ADR IN INDIA ........................................ 67

3.4.1 Court-annexed Mediation Centres ............................................................................... 67

3.4.2 Arbitration Institutions ................................................................................................. 69

3.4.3 Lok Adalats and Permanent Lok Adalats .................................................................... 71

3.5 ROLE OF NATIONAL LEGAL SERVICES AUTHORITY (NALSA) AND STATE

AUTHORITIES .................................................................................................................. 73

CHAPTER 4: LEGAL DIMENSIONS AND DOCTRINAL ANALYSIS OF ADR IN

FAMILY DISPUTES IN INDIA ............................................................................................... 76

4.1 DEFINITION AND CLASSIFICATION OF FAMILY DISPUTES ......................... 76

4.1.1 Divorce and Matrimonial Issues .................................................................................. 76

4.1.2 Child Custody and Guardianship ................................................................................. 78

4.1.3 Maintenance and Alimony ........................................................................................... 81

4.1.4 Domestic Violence and Abuse ..................................................................................... 83

4.1.5 Property and Succession Disputes ............................................................................... 85

4.2 PERSONAL LAW SYSTEMS GOVERNING FAMILY MATTERS ......................... 87

4.2.1 Hindu Law.................................................................................................................... 87

4.2.2 Muslim Law ................................................................................................................. 89

4.2.3 Christian Law ............................................................................................................... 90

4.2.4 Parsi Law...................................................................................................................... 92

4.2.5 Special Marriage Act – Secular Law ........................................................................... 94

4.3 ROLE AND POWERS OF FAMILY COURTS .......................................................... 96

4.4 STATUTORY AND JUDICIAL MANDATES FOR ADR IN FAMILY LAW ........... 98

4.5 USE OF MEDIATION IN MATRIMONIAL DISPUTES........................................ 100

4.6 ROLE OF CONCILIATION IN DIVORCE, MAINTENANCE AND CUSTODY.. 103

4.7 LOK ADALATS IN RESOLVING FAMILY DISPUTES ......................................... 105

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 4.8 ADR FOR CROSS-BORDER FAMILY DISPUTES – CUSTODY AND DIVORCE107

4.9 COMPARATIVE DOCTRINAL INSIGHTS FROM OTHER JURISDICTIONS .. 109

4.9.1 United Kingdom – Mediation in Family Law Act ..................................................... 109

4.9.2 United States – Court-Directed ADR Programs ........................................................ 111

4.9.3 Australia – Family Dispute Resolution (FDR) .......................................................... 113

4.9.4 Singapore – Child Focused Mediation Models .......................................................... 115

CHAPTER 5: JUDICIAL INTERPRETATION AND CASE LAW ANALYSIS .............. 116

5.1 JUDICIAL ATTITUDES TOWARDS ADR IN FAMILY DISPUTES .................... 116

5.2 DETAILED DOCTRINAL STUDY OF LEADING JUDGMENTS ........................ 118

5.2.1 Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. ............................... 118

5.2.2 K. Srinivas Rao v. D.A. Deepa .................................................................................. 121

5.2.3 M.P. Gangadharan v. State of Kerala......................................................................... 123

5.3 CASE LAW ON SECTION 89 CPC AND MEDIATION REFERRAL ................... 126

5.4 CRITIQUE OF JUDICIAL CONSISTENCY IN PROMOTING ADR .................... 128

5.5 LEGAL EFFECT OF SETTLEMENT AGREEMENTS FROM ADR ................... 131

CHAPTER 6: CHALLENGES, REFORMS AND RECOMMENDATIONS .................... 134

6.1 MAJOR CHALLENGES IN ADR FOR FAMILY DISPUTES ................................ 134

6.2 GAPS IN CURRENT LEGAL AND INSTITUTIONAL FRAMEWORK ................ 136

6.3 NEED FOR UNIFORM FAMILY ADR GUIDELINES .......................................... 138

6.4 POLICY AND LEGISLATIVE REFORMS .............................................................. 139

6.5 RECOMMENDATIONS FOR STRENGTHENING ADR IN FAMILY LAW ....... 141

CHAPTER 7: CONCLUSION ................................................................................................. 144

7.1 SUMMARY OF RESEARCH FINDINGS ................................................................ 144

7.2 CONCLUDING OBSERVATIONS ON ADR IN FAMILY DISPUTES ................. 147

7.3 FUTURE SCOPE OF RESEARCH ........................................................................... 149

xix
BIBLIOGRAPHY ..................................................................................................................... 153

xx
CHAPTER 1: INTRODUCTION
1.1 THE CONCEPT OF DISPUTE RESOLUTION

Dispute resolution represents the processes and techniques employed to resolve conflicts between
parties. These mechanisms have evolved from traditional court-based litigation to encompass
various alternative methods. Human conflict remains an inevitable aspect of social interactions
across diverse realms. The rise of conflicts necessitates effective resolution mechanisms for
maintaining social harmony and legal order.1

The traditional dispute resolution mechanism refers primarily to litigation through courts. This
system forms the backbone of justice administration in most jurisdictions worldwide. Courts
adjudicate disputes through formal procedures established by procedural laws. In India, the Civil
Procedure Code, 1908 governs civil litigation processes while criminal matters follow procedures
in the Bharatiya Nagarik Suraksha Sanhita, 2023. However, litigation faces significant challenges.
These include procedural complexities, substantial delays, prohibitive costs, and adversarial
approaches that often damage relationships. Justice V.R. Krishna Iyer aptly remarked in Guru
Nanak Foundation v. Rattan Singh, “Litigation is a luxury which India can ill-afford. The courts
in India are inundated with large number of suits pending for years and years causing untold
miseries to the litigants.”2

The overwhelming burden on courts prompted exploration of alternative mechanisms. Supreme

Court in Salem Advocate Bar Association v. Union of India recognized this necessity and
emphasized implementing Section 89 of CPC effectively. This provision mandates courts to direct
disputants toward various ADR methods when elements of settlement exist. The Court noted: “The
purpose of Section 89 is to ensure that all the cases which are filed in court need not necessarily
be decided by the court itself.”3 The Law Commission of India through various reports has
consistently highlighted the imperative need for ADR mechanisms. The 129th Report specifically
recommended ADR’s implementation to address docket explosion. Subsequently, the Justice
Malimath Committee Report reinforced this by suggesting comprehensive ADR incorporation

1
Sriram Panchu, Mediation Practice and Law: The Path to Successful Dispute Resolution 15-18 (LexisNexis, New
Delhi, 2nd edn., 2015).
2
Guru Nanak Foundation v. Rattan Singh, AIR 1981 SC 2075.
3
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

1
within India’s legal framework. These developments signify recognition of traditional litigation’s
limitations in contemporary dispute scenarios.4

Alternative Dispute Resolution mechanisms operate on fundamentally different principles than

adversarial litigation. ADR focuses on collaborative problem-solving rather than winner-
determination approaches. These mechanisms prioritize party autonomy, relationship preservation,
and customized solutions based on interests rather than rigid legal positions. Professor Frank
Sander of Harvard Law School introduced the concept of a “multi-door courthouse” where
disputes would be channeled to appropriate resolution forums. This vision inspired global ADR
evolution including India’s current framework. The Supreme Court in Afcons Infrastructure v.
Cherian Varkey Construction emphasized ADR’s foundational philosophy: “The object of Section
89 is that settlement should be attempted by adopting an appropriate ADR process before the trial
commences.”5

ADR encompasses diverse mechanisms catering to different dispute types. Arbitration involves
private adjudication by appointed arbitrators whose decisions bind parties like court judgments.
The Arbitration and Conciliation Act, 1996 (amended in 2015, 2019, and 2021) governs this
process in India. Mediation represents a facilitated negotiation where mediators assist parties in
reaching voluntary settlements. The recent Mediation Act, 2023 provides statutory framework for
mediation processes. Conciliation involves third-party intervention with more active solution
suggestion than mediation. Negotiation permits direct party discussions without third-party
involvement. Lok Adalats or “People’s Courts” established under Legal Services Authorities Act,
1987 offer forum for amicable dispute resolution with statutory recognition. The Supreme Court
in B.P. Moideen Sevamandir v. A.M. Kutty Hassan highlighted ADR’s significance: “Today
alternative dispute resolution has been formally incorporated into our legal system given the need
for expeditious resolution of disputes.”6

1.2 UNDERSTANDING FAMILY DISPUTES IN INDIAN CONTEXT

Family disputes in India exist within a complex tapestry of legal pluralism, cultural practices and
evolving socio-economic conditions. The fabric of family conflict involves intricate threads of

4
Law Commission of India, “129th Report on Urban Litigation – Mediation as Alternative to Adjudication”
(Government of India, August 1988).
5
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
6
B.P. Moideen Sevamandir v. A.M. Kutty Hassan, (2009) 2 SCC 198.

2
personal laws, modern legislation and traditional dispute resolution mechanisms. These disputes
manifest in various forms ranging from matrimonial discord to property distribution and
guardianship matters. The diversity of personal law systems creates a multilayered framework for
resolving family disputes in the Indian legal landscape.7

The pluralistic legal framework of family disputes in India derives from religion-specific personal
laws that govern family matters. Hindu family disputes fall under the Hindu Marriage Act, 1955,
Hindu Succession Act, 1956, Hindu Adoptions and Maintenance Act, 1956, and Hindu Minority
and Guardianship Act, 1956. Muslim personal laws operate under the Muslim Personal Law
(Shariat) Application Act, 1937 with specific legislations like Dissolution of Muslim Marriage Act,
1939. Christian family disputes are governed by the Indian Christian Marriage Act, 1872 and
Divorce Act, 1869, while Parsi matrimonial matters fall under the Parsi Marriage and Divorce Act.
The Special Marriage Act, 1954 provides a secular alternative transcending religious bounadries
for inter-faith couples. Each system contains unique provisions reflecting distinct religious and
cultural practices, making conflict resolution particularly challenging in interfaith matrimonial
disputes.8

Family disputes in India possess distinctive characteristics requiring specialised handling.

Matrimonial disputes include divorce petitions, judicial separation, restitution of conjugal rights,
and nullity of marriage proceedings. Maintenance claims arise under various statutes including
Section 125 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and Section 24-25 of Hindu Marriage
Act. Child custody disputes involve determinations of guardianship with considerations of child
welfare as paramount concern. Property disputes encompass issues related to ancestral property,
matrimonial property distribution and inheritance claims. Domestic violence complaints are
handled through the Protection of Women from Domestic Violence Act, 2005 which provides civil
remedies including protection orders, residence orders and maintenance. Emotional intensity
pervades these disputes as they involve intimate relationships, trust violations and impact
vulnerable family members particularly children.9

7
Flavia Agnes, Family Law Volume 1: Family Laws and Constitutional Claims 12 (Oxford University Press, New
Delhi, 2011).
8
Partha S. Ghosh, “The Institutionalization of Religious Identity in India” 20 Indian Journal of Secularism 214
(2016).
9
Kusum, Family Law Lectures: Family Law I 53-65 (LexisNexis, New Delhi, 3rd edn., 2018).

3
Traditional mechanisms of family dispute resolution remain active in rural and semi-urban India
despite formal legal systems. Panchayats in villages often mediate family disputes through
community elders applying customary norms rather than formal laws. Religious bodies like Dar-
ul-Qaza for Muslims and caste panchayats for various Hindu communities continue to adjudicate
family matters within respective communities. While these forums offer accessibility and cultural
familiarity, they sometimes perpetuate patriarchal norms contradicting constitutional values. In
Krishna Veni Nagam v. Harish Nagam, the Supreme Court noted: “Matrimonial disputes are
personal in nature and parties expect speedy settlement. The object of such disputes being different
from commercial disputes, a more conciliatory approach is required.”10 This observation
underscores the unique nature of family disputes requiring specific resolution approaches.

The Indian legal system increasingly recognizes the significance of alternative dispute resolution
mechanisms for family disputes. The Mediation Act, 2023 marks a pivotal development, providing
statutory recognition to mediation processes while designating family disputes as suitable for
mandatory pre-litigation mediation. Section 89 of Civil Procedure Code explicitly empowers
courts to refer cases to arbitration, conciliation, mediation or Lok Adalats. The Family Courts Act,
1984 under Section 9 creates a duty for family courts to endeavor toward settlement through
conciliation. Various personal laws contain provisions encouraging amicable settlements - Section
23(2) of Hindu Marriage Act imposes duty on courts to attempt reconciliation before proceeding
with divorce. The Legal Services Authority Act establishes Lok Adalats that effectively address
family disputes through settlement-oriented approaches. The Supreme Court in Afcons
Infrastructure v. Cherian Varkey Construction emphasized mediation’s value: “The object of
Section 89 is that settlement should be attempted by adopting an appropriate ADR process before
the trial commences.”11

1.3 SIGNIFICANCE OF ADR IN PRESENT LEGAL AND SOCIAL

CONTEXT

Alternative Dispute Resolution mechanisms have emerged as indispensable components of the

Indian legal system. Their significance extends beyond mere judicial decongestion to broader
social impacts. The present legal context of ADR stems from several critical developments in legal

10
Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150.
11
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.

4
framework. It represents a paradigm shift in dispute resolution philosophy. Courts increasingly
recognize ADR’s value in resolving conflicts more holistically than adversarial litigation.12

The judicial system in India faces unprecedented challenges in terms of case backlog. According
to the National Judicial Data Grid, over 47 million cases remain pending across various courts.
This includes approximately 59 lakh cases before High Courts and 70,000 before the Supreme
Court. District and subordinate courts struggle with over 31.4 million pending cases. Such
alarming figures reflect systemic inefficiencies in the traditional litigation model. The Law
Commission in its 120th report recommended increasing judge strength to 50 judges per million
population. However, India currently maintains only about 21 judges per million. Recent estimates
suggest it could take nearly 360 years to clear existing backlog if no fresh cases were filed. This
pendency crisis creates justice denial through delay, validating the maxim “justice delayed is
justice denied.” ADR mechanisms offer viable alternatives to address this systemic challenge by
providing expeditious resolution channels operating parallel to formal court systems.13

Recent legislative initiatives have significantly enhanced ADR’s legal standing in India. The
enactment of the Mediation Act, 2023 represents a watershed moment in India’s ADR
jurisprudence. This comprehensive legislation provides statutory recognition to various mediation
forms including pre-litigation, online, and community mediation. The Act institutionalizes
mediation through the establishment of the Mediation Council of India and provides for mediation
service providers. It confers binding legal status to mediated settlement agreements, making them
enforceable similar to court decrees. This development follows earlier legislative frameworks
including Section 89 of Civil Procedure Code, Arbitration and Conciliation Act 1996, Legal
Services Authorities Act 1987, and Commercial Courts Act 2015. These statutory provisions
collectively create robust legal infrastructure for ADR implementation across diverse dispute
categories.14

Technological integration has revolutionized ADR mechanisms’ operational scope. The COVID-
19 pandemic accelerated digital adoption in dispute resolution systems. Online Dispute Resolution

12
Sriram Panchu, Mediation Practice and Law: The Path to Successful Dispute Resolution 22-25 (LexisNexis, New
Delhi, 2nd edn., 2015).
13
National Judicial Data Grid, “Monthly Summary Report”, available at: https://njdg.ecourts.gov.in/njdg_v3/ (last
visited on May 12, 2025).
14
The Mediation Act, 2023 (Act 32 of 2023).

5
(ODR) platforms enable disputants to resolve conflicts remotely overcoming geographical
barriers. The Mediation Act, 2023 explicitly recognizes online mediation as valid process with
appropriate safeguards. This technological advancement makes ADR more accessible, convenient,
and cost-effective. In February 2020, the government launched the VIVAAD SE VISHWAS
scheme utilizing ODR for tax dispute resolution. The NITI Aayog subsequently introduced “The
ODR Policy Plan for India” in 2021, receiving support from regulatory bodies like RBI and SEBI.
This technological dimension enhances ADR’s significance in contemporary dispute resolution
landscape.15

ADR holds particular significance in commercial disputes resolution. Business conflicts require
expeditious resolution to prevent commercial paralysis and financial losses. The time-sensitivity
of commercial matters makes traditional litigation unsuitable due to protracted timelines.
Commercial entities increasingly incorporate arbitration and mediation clauses in contracts to
ensure faster dispute resolution. The Commercial Courts Act’s 2018 amendment introduced Pre-
Institution Mediation and Settlement (PIMS) making mediation mandatory before initiating certain
commercial litigations. This statutory emphasis reflects recognition of ADR’s value in maintaining
business continuity and preserving commercial relationships. Global business practices and cross-
border transactions further necessitate ADR mechanisms that align with international standards for
dispute resolution.16

1.4 STATEMENT OF THE PROBLEM

The Indian judiciary confronts an unprecedented crisis of case backlog. This crisis paralyzed
efficient justice delivery across legal forums nationwide. Recent statistics reveal approximately 52
million pending cases across all court levels as of early 2025. District and subordinate courts bear
the heaviest burden with over 4.46 crore cases representing about 85% of total pendency. This
mammoth judicial backlog creates a paradoxical situation where institutions designed for justice
delivery become sources of justice denial. Family disputes constitute a significant portion of this
pendency creating profound human cost beyond mere statistics.17

15
NITI Aayog, “Designing the Future of Dispute Resolution: The ODR Policy Plan for India”, available at:
https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf (last visited on May 12, 2025).
16
Commercial Courts Act, 2015 (Act 4 of 2016), s. 12A.
17
National Judicial Data Grid, “Monthly Summary Report”, available at: https://njdg.ecourts.gov.in/njdg_v3/ (last
visited on May 12, 2025).

6
The family court system established under the Family Courts Act, 1984 similarly experiences
substantial case congestion. These specialized courts were intended to offer expedited resolution
for familial disputes through informal proceedings. However, they increasingly mirror traditional
courts in their adversarial approach and procedural complexities. Across India’s major cities like
Delhi and Mumbai, family courts show disproportionately high pending cases per million
population. Cases frequently require multiple years for disposition despite their time-sensitive
nature. This delay severely undermines the Family Courts Act’s cardinal objective of expeditious
resolution of family disputes. The resulting extended litigation transforms temporary arrangements
into de facto permanent situations with grave consequences for families.18

Children of litigating parents suffer disproportionate detrimental impacts. Research conducted in

urban Bengaluru revealed strong correlation between parental custody disputes and children’s
emotional and behavioral problems. These children exhibited higher rates of conduct issues, peer
problems and emotional disturbances compared to children from intact families. A cross-sectional
study identified specific risk factors including excessive parental control, academic environment
changes, and general uncertainty about future living arrangements. Children frequently develop
divided loyalties leading to psychological distress. The adversarial system intensifies these
problems by forcing children into traumatic courtroom appearances or evaluations. Long-pending
cases extend this trauma creating developmental disruptions during critical formative periods.19

Gender-based power imbalances persist in family dispute resolution within traditional courts.
Women often face structural disadvantages in matrimonial litigation despite progressive
legislation. Socio-economic disparities limit women’s effective access to quality legal
representation. Gender stereotypes influence judicial decision-making in custody determinations
and maintenance assessments. Domestic violence victims experience secondary victimization
through insensitive court procedures. Procedural complexities disproportionately impact women
with limited legal literacy. The Protection of Women from Domestic Violence Act’s
implementation remains inconsistent across jurisdictions. Court infrastructure lacks gender-
sensitive facilities creating hostile environments for women litigants. These barriers collectively

18
PRS India, “Examining pendency of cases in the Judiciary”, available at: https://prsindia.org/theprsblog/explainer-
code-occupation-safety-health-and-working-condition?page=2&per-page=1 (last visited on May 12, 2025).
19
Priyanka P. Nambiar, et al., “Predictors of behavioral and emotional issues in children involved in custody
disputes: A cross sectional study in urban Bengaluru”, 67 Asian Journal of Psychiatry 102930 (2022).

7
undermine the constitutional promise of gender equality in family justice delivery creating
systematic disadvantage for women disputants.20

The orthodox dispute resolution system overlooks cultural diversity in Indian family structures.
Personal laws governing various communities contain unique provisions for dispute resolution
specific to their traditions. However, standard judicial proceedings apply uniform procedures
across diverse communities. Traditional mechanisms with cultural legitimacy like village
panchayats lack formal integration with judicial processes. Religiously influenced family norms
receive inadequate consideration in mainstream court proceedings. Judicial officers rarely receive
specialized training in cultural-psychological dimensions of family disputes. This cultural
disconnection creates distrust toward formal legal institutions among certain communities. The
resulting disconnect between legal pronouncements and social acceptance undermines effective
resolution. Culturally sensitive alternative mechanisms remain underutilized despite their potential
effectiveness in certain communities.21

1.5 OBJECTIVES OF THE STUDY

1. To analyze the legal framework governing Alternative Dispute Resolution in family

disputes across various personal laws in India, identifying statutory provisions and judicial
precedents that facilitate or impede effective implementation.

2. To critically examine safeguards against power imbalances and gender inequities in

mediation processes for matrimonial disputes, particularly evaluating mediator neutrality
and procedural fairness.

3. To identify implementation gaps in court-annexed mediation systems for family disputes

across diverse jurisdictions in India and assess their impact on accessibility, efficiency, and
outcome quality.

20
Indira Jaising, “Concern for the Dead, Condemnation for the Living: Women, Dowry and Personal Laws” in
Ratna Kapur (ed.), Feminist Terrains in Legal Domains: Interdisciplinary Essays on Women and Law in India 84-94
(Kali for Women, New Delhi, 1996).
21
Chandan Kumar Sadangi, “Alternative Dispute Resolution in Indian Family Law”, 5 International Journal of Law
112-116 (2019).

8
 4. To evaluate the potential transformative impact of the Mediation Act, 2023 on family
dispute resolution, particularly analyzing provisions for pre-litigation mediation, online
mediation, and enforcement of mediated settlements.

5. To formulate evidence-based recommendations for strengthening ADR mechanisms in

family disputes by synthesizing domestic experiences and adaptable international
practices.

1.6 RESEARCH QUESTIONS

1. How have statutory provisions and judicial interpretations shaped the integration of
Alternative Dispute Resolution mechanisms within Indian family law systems across
different personal laws?

2. To what extent does the current legal framework adequately address power imbalances and
gender considerations in family dispute mediation, particularly in cases involving domestic
violence and child custody?

3. What are the implementation challenges in court-annexed mediation for family disputes,
and how do these impact settlement rates and execution of mediated agreements?

4. How can the Mediation Act, 2023 transform family dispute resolution in India, and what
modifications might be necessary to address specific needs of matrimonial and custody
disputes?

5. What lessons can be derived from international best practices in family dispute resolution
that might be adapted to strengthen ADR processes within India’s pluralistic legal
framework?

1.7 HYPOTHESIS

The research hypothesizes that Alternative Dispute Resolution mechanisms, particularly

mediation, offer more effective, humane and sustainable solutions for family disputes in India than
traditional litigation when supported by appropriate statutory frameworks and implementation
safeguards. Family disputes resolved through ADR likely demonstrate higher compliance rates,
reduced emotional trauma for involved parties including children, and better preservation of
ongoing familial relationships. However, the effectiveness of ADR in family disputes appears

9
contingent upon several critical factors: adequate procedural safeguards against power imbalances,
proper mediator training in gender sensitivity and family dynamics, appropriate case screening
mechanisms particularly for matters involving domestic violence, and robust enforcement
mechanisms for mediated settlements. Furthermore, the integration of traditional conflict
resolution approaches with modern mediation techniques could potentially enhance cultural
acceptability and effectiveness of ADR processes across India’s diverse religious and cultural
communities. The newly enacted Mediation Act, 2023 may address several existing statutory gaps
but might still require specific adaptations to fully accommodate the unique dynamics of family
disputes within various personal law systems.

1.8 RESEARCH METHODOLOGY

This research employs doctrinal methodology involving systematic analysis of primary and
secondary legal sources. Primary sources include statutory provisions such as the Mediation Act,
2023, Family Courts Act, 1984, Section 89 of Code of Civil Procedure, personal laws of various
religions, and landmark judicial pronouncements by the Supreme Court and High Courts of India.
Secondary sources comprise scholarly articles, law commission reports, mediation training
manuals, and published empirical studies on ADR efficacy in family disputes. A comparative
analytical framework examines ADR mechanisms across different personal laws while evaluating
their contextual application within Indian socio-legal traditions. The research uses legal
interpretation techniques to extract guiding principles from statutory provisions and judicial
decisions while identifying inconsistencies and implementation gaps.

Critical analysis extends to evaluating the practical implementation challenges of ADR

mechanisms in family disputes. This involves examining court-annexed mediation procedures,
institutional frameworks governing ADR processes, and the enforcement mechanisms for
outcomes reached through alternative dispute resolution. The methodology includes assessment of
power dynamics and gender considerations in family mediation practice through examination of
procedural safeguards and judicial interventions. Additionally, the study incorporates comparative
elements by referencing international best practices in family dispute resolution while maintaining
focus on their adaptibility to Indian legal and cultural context. The research culminates in a
synthesized analysis with reform recommendations based on identified gaps between statutory
intent and practical implementation.

10
1.9 SCOPE AND LIMITATIONS OF THE STUDY

This research adopts doctrinal methodology focusing on legal analysis of statutory provisions and
judicial pronouncements. The scope encompasses examination of diverse ADR mechanisms
applicable to family disputes across personal laws. Primary focus remains on arbitration, mediation
and conciliation within Indian family law jurisprudence. The study examines both statutory
frameworks and court-annexed ADR processes currently operational. The research explores
application of ADR mechanisms across various personal law systems including Hindu, Muslim,
Christian and Parsi traditions.22

Geographically, the research spans pan-Indian legal developments in ADR jurisprudence.

Temporal boundaries extend from enactment of Family Courts Act, 1984 through recent
developments including the Mediation Act, 2023. Special emphasis is placed on judicial decisions
by the Supreme Court and High Courts elucidating ADR application in family disputes. The
research scrutinizes implementation challenges within court-annexed mediation centers and
Family Courts. Particular attention is devoted to statutory interpretation of Section 89 CPC and
relevant provisions under personal laws.23

The research confronts inherent limitations common to doctrinal studies in legal research. The
doctrinal approach restricts analysis to legal texts without empirical validation of ground realities.
This creates potential disconnect between theoretical legal frameworks and practical
implementation challenges. Absence of comprehensive field studies limits understanding of actual
disputant experiences with family ADR processes. Furthermore, the rapidly evolving nature of
ADR landscape poses challenge in maintaining currency of research findings particularly with
recent enactment of Mediation Act, 2023.24

Statistical limitations prevent quantitative assessment of ADR efficacy in family disputes.

Insufficient data exists regarding settlement rates, implementation success and participant
satisfaction across diverse ADR forums. The research cannot conclusively establish which ADR
mechanism yields optimal outcomes for specific family dispute categories. Limited examination

22
Upasana Sarkar, “Doctrinal and non-doctrinal legal research”, available at: https://blog.ipleaders.in/all-about-
doctrinal-and-non-doctrinal-research/ (last visited on May 12, 2025).
23
K. N. Chandrasekharan Pillai, “Legal Research Methodology” 76-78 (Eastern Book Company, Lucknow, 2012).
24
Kamakshi Puri, “Mediation in Family Law Disputes in India”, available at:
https://jgu.edu.in/mappingADR/mediation-in-family-law-disputes-in-india/ (last visited on May 12, 2025).

11
of cultural and sociological dimensions affecting ADR acceptance within different communities
represents another constraint. Additionally, the study doesn’t comprehensively address power
imbalances and gender dynamics in mediation processes requiring separate specialized
investigation.25

Geographical limitations arise from regional variations in ADR implementation across different
Indian states. Court-annexed mediation facilities vary substantially between metropolitan and rural
jurisdictions creating uneven development patterns. The research does not examine international
comparative frameworks in depth though occasional references appear where relevant. Language
barriers restricted access to regional judicial decisions and literature on local ADR practices.
Certain High Court judgments in regional languages remain outside analytical scope though
significant efforts were made for comprehensive coverage within constraints.26

1.10 REVIEW OF EXISTING LITERATURE

1.10.1 Books and Monographs

The literature review encompassing books on Alternative Dispute Resolution reveals a rich
tapestry of scholarly work that extensively addresses the theoretical foundations, practical
applications, and evolving dimensions of ADR in family dispute resolution. This segment focuses
on identifying, analyzing, and critically evaluating seminal books and monographs that have
significantly contributed to our understanding of ADR mechanisms, particularly in the context of
family disputes in India and globally.

Anirban Chakraborty’s “Law & Practice of Alternative Dispute Resolution in India: A Detailed
Analysis” stands as a comprehensive examination of the ADR landscape in India, offering valuable
insights into its historical evolution, legal framework, and practical implementation.27 The author,
with over a decade of experience in ADR teaching and practice, provides a thorough analysis of
arbitration law and procedures in India as well as the enforcement of foreign arbitral awards. The

25
Vidhi Centre for Legal Policy, “ODR: The Future of Dispute Resolution in India”, available at:
https://vidhilegalpolicy.in/research/the-future-of-dispute-resolution-in-india/ (last visited on May 12, 2025).
26
Nusrat Hassan and Karanveer Singh Anand, “Alternative Dispute Resolution As A Solution For Family Disputes”,
available at: https://www.mondaq.com/india/arbitration-dispute-resolution/1199420/alternative-dispute-resolution-
as-a-solution-for-family-disputes (last visited on May 12, 2025).
27
Anirban Chakraborty, “Law & Practice of Alternative Dispute Resolution In India: A Detailed Analysis”
(LexisNexis, 1st ed., 2023). Available at: https://store.lexisnexis.in/law-practice-of-alternative-dispute-resolution-in-
india-a-detailed-analysis (last visited on May 12, 2025).

12
book also extensively covers negotiation, mediation, conciliation, and Lok Adalat systems, making
it an invaluable resource for understanding the multifaceted dimensions of ADR in India.28

Similarly, Charles Ewert’s “Choices in Approaching Conflict: Understanding the Practice of

Alternative Dispute Resolution” presents a theoretical framework for understanding the
philosophical underpinnings of various ADR mechanisms.29 This work examines how different
approaches to conflict resolution can be tailored to specific types of disputes, including those
arising within family contexts.

Robert H. Mnookin’s seminal work on Alternative Dispute Resolution provides a theoretical

understanding of ADR processes, particularly focusing on mediation and arbitration as compared
to conventional litigation and negotiation.30 His analysis extends to the economic implications of
ADR mechanisms, offering valuable insights into when and how these processes can be most
effectively utilized in various dispute contexts, including family disputes.31

The literature on family-specific ADR mechanisms reveals that these methods are particularly
well-suited for resolving domestic conflicts due to their emphasis on maintaining relationships,
privacy, and emotional well-being. Several specialized books address the unique challenges and
opportunities presented by ADR in the family context.

In the Indian context, works like “Alternative Dispute Resolution in Indian Family Law” highlight
the cultural and legal nuances of applying ADR mechanisms to family disputes in India.32 These
texts emphasize how traditional Indian methods of dispute resolution, such as panchayats and
community-based reconciliation efforts, have evolved and integrated with modern ADR
frameworks to address contemporary family conflicts.

International perspectives on family dispute resolution through ADR are provided in works such
as “Mediation Advocacy: Effective Client Representation in Mediation Proceedings” by Cinnie

28
Id.
29
Charles Ewert, “Choices in Approaching Conflict: Understanding the Practice of Alternative Dispute Resolution”
available at: https://researchguides.library.yorku.ca/alternativedisputeresolution/books (last visited on May 12,
2025).
30
Robert H. Mnookin, “Alternative Dispute Resolution” (1998), Harvard Law School John M. Olin Center for Law,
Economics and Business Discussion Paper Series, Paper 232, available at:
https://www.researchgate.net/publication/30504345_Alternative_Dispute_Resolution (last visited on May 11, 2025).
31
Id.
32
“Alternative Dispute Resolution in Indian Family Law” (IAFL, 2023), available at:
https://www.iafl.com/media/1129/alternative_dispute_resolution_in_indian_family_law.pdf (last visited on May 12,
2025).

13
Noble, which offers practical guidance for legal practitioners representing clients in family
mediation processes.33 This work underscores the importance of skilled advocacy even within the
collaborative framework of mediation.

Jutta Brunnee’s work examining “Enforcement Mechanisms in International Law and International
Environmental Law” provides a framework for understanding how enforcement challenges in
various legal domains might inform approaches to family dispute resolution.34 Although not
exclusively focused on family disputes, Brunnee’s analysis of compliance mechanisms offers
valuable parallels for ensuring the effectiveness of family dispute settlements.

Sharma and Parashar’s “Family Mediation in India: Legal Framework and Practical Applications”
provides one of the most comprehensive analyses of the family mediation landscape in India.35
The authors examine both the statutory basis for family mediation and its practical implementation
across various states, offering valuable insights into regional variations in practice. The book
includes detailed case studies from family courts in Delhi, Mumbai, and Bangalore, illustrating
how mediation has been successfully implemented in diverse urban contexts. The authors
particularly emphasize the role of court-annexed mediation centers in providing accessible and
effective dispute resolution services for family matters.

Mehta’s “Alternative Dispute Resolution and Family Law in India” examines the intersection of
ADR mechanisms with various personal laws in India.36 The book provides a nuanced analysis of
how Hindu, Muslim, Christian, and Parsi personal laws interact with ADR processes in resolving
family disputes. Mehta’s work is particularly valuable for its examination of how religious and
cultural norms influence the mediation process and how mediators navigate these considerations
while maintaining neutrality and fairness. The author offers practical guidance for mediators
working within these diverse legal and cultural frameworks.

33
Cinnie Noble et al., “Mediation advocacy: effective client representation in mediation proceedings” available at:
https://researchguides.library.yorku.ca/alternativedisputeresolution/books (last visited on May 12, 2025).
34
Jutta Brunnee, “Enforcement Mechanisms in International Law and International Environmental Law”, in Ulrich
Beyerlin, Peter-Tobias Stoll, et.al. (eds.), Ensuring Compliance with Multilateral Environmental Agreements: A
dialogue between practitioners and academia 1-24 (Martinus Nijhoff Publishers, 2006).
35
V.K. Sharma and Anuradha Parashar, “Family Mediation in India: Legal Framework and Practical Applications”
(Universal Law Publishing, New Delhi, 2021).
36
Sunita Mehta, “Alternative Dispute Resolution and Family Law in India” (Oxford University Press, New Delhi,
2022).

14
Justice Krishna Iyer’s “Family Courts and ADR in India: Vision and Reality” remains a
foundational text that critically examines the implementation of the Family Courts Act and the
integration of ADR mechanisms within family court proceedings. 37 Drawing on his extensive
judicial experience, Justice Iyer identifies systemic challenges in the family justice system and
proposes comprehensive reforms to enhance the effectiveness of ADR in family disputes. The
book’s strength lies in its balanced assessment of both legislative frameworks and ground-level
implementation realities.

Gopinath’s “Cultural Competence in Family Mediation: The Indian Context” addresses the critical
issue of cultural sensitivity in family dispute resolution.38 The author analyzes how factors such as
joint family structures, intergenerational relationships, caste considerations, and community norms
influence family conflicts and their resolution in India. Gopinath develops a framework for
culturally competent mediation practice that respects traditional values while ensuring gender
equity and protection of vulnerable family members. This work fills an important gap in the
literature by providing mediators with practical strategies for navigating cultural complexities in
family disputes.

Bhattacharya’s “Faith-Based Mediation in Family Disputes” examines how religious principles

and traditional dispute resolution practices can be integrated with contemporary mediation
approaches.39 The book includes chapters on Hindu, Muslim, Christian, and Sikh approaches to
family conflict resolution, analyzing both historical practices and modern adaptations.
Bhattacharya argues for a pluralistic approach that respects religious autonomy while ensuring
compliance with constitutional principles and human rights standards. The work provides valuable
insights for practitioners seeking to develop culturally resonant approaches to family dispute
resolution.

Lisa Parkinson’s “Family Mediation: Appropriate Dispute Resolution in a New Family Justice
System” offers valuable comparative perspectives on family mediation systems in different

37
V.R. Krishna Iyer, “Family Courts and ADR in India: Vision and Reality” (Eastern Book Company, Lucknow,
2018).
38
Arun Gopinath, “Cultural Competence in Family Mediation: The Indian Context” (Sage Publications, New Delhi,
2023).
39
Ruma Bhattacharya, “Faith-Based Mediation in Family Disputes” (Thomson Reuters, New Delhi, 2022).

15
jurisdictions.40 While focused primarily on Western contexts, Parkinson’s analysis of how family
mediation integrates with court systems, approaches to screening for domestic violence, and
methods for involving children in the mediation process provides important insights that can
inform the development of family ADR in India. The book’s emphasis on ecological approaches
to family conflict, recognizing the complex interplay of legal, emotional, and relational factors, is
particularly relevant to the Indian context.

Joan Kelly’s “Children and Divorce: Managing Family Conflict” addresses the critical issue of
child welfare in family dispute resolution.41 Kelly examines research-based approaches to
minimizing harm to children during family conflicts and offers practical guidance for child-
inclusive mediation practices. While not specifically focused on India, the book’s child-centered
framework provides valuable insights for developing more child-sensitive approaches to family
dispute resolution in the Indian context, where children’s voices are often marginalized in family
proceedings.

1.10.2 Journal Articles and Research Papers

Scholarly articles have contributed significantly to establishing theoretical frameworks for

understanding the role of ADR in family disputes. The article “Alternative Dispute Resolution as
a Solution for Family Disputes” by Nandini Gore and Karanveer Singh Anand provides a
comprehensive analysis of how ADR methods can be particularly effective in resolving family
conflicts.42 The authors highlight that ADR is encouraged due to advantages such as “flexibility,
privacy, ease in procedure, cost effectiveness and speedy resolution of disputes.”43 They also
emphasize that the right to a speedy trial is an inalienable right under Article 21 of the Indian
Constitution, as observed in the landmark case of Hussainara Khatoon v. State of Bihar.44

40
Lisa Parkinson, “Family Mediation: Appropriate Dispute Resolution in a New Family Justice System” (Family
Law Publishers, Bristol, 3rd edn., 2020).
41
Joan B. Kelly, “Children and Divorce: Managing Family Conflict” (Guilford Press, New York, 2021).
42
Nandini Gore and Karanveer Singh Anand, “Alternative Dispute Resolution As A Solution For Family Disputes”
(June 7, 2022), available at: https://www.mondaq.com/india/arbitration-dispute-resolution/1199420/alternative-
dispute-resolution-as-a-solution-for-family-disputes (last visited on May 12, 2025).
43
Id.
44
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

16
In the article “Mediation in Family Law Disputes in India” by Kamakshi Puri, the author analyzes
the legal framework governing mediation in family disputes in India.45 The research reveals that
over 80% of cases referred to mediation in India are family disputes, highlighting the significance
of ADR mechanisms in this domain.46 The article examines various legal provisions, including
Section 89 of the Code of Civil Procedure and the Family Courts Act, 1984, that facilitate the
resolution of family disputes through mediation and other ADR mechanisms.

Upendra Baxi’s seminal article “On How Not to Judge the Judges: Notes Towards Evaluation of
the Judicial Role” explores the broader context of judicial evaluation, offering insights into how
ADR mechanisms might complement traditional judicial processes in resolving family disputes.47
His critical analysis provides a foundation for understanding the limitations of conventional
adjudication in addressing the complex emotional and relational dimensions of family conflicts.

Ramamoorthy’s article “Section 89, CPC and Family Courts Act: Complementary Frameworks for
Family Dispute Resolution” provides a detailed analysis of the statutory basis for ADR in family
disputes.48 The author examines how Section 89 of the Code of Civil Procedure interacts with
provisions of the Family Courts Act, identifying both synergies and inconsistencies in these
frameworks. The article includes analysis of landmark judgments that have interpreted these
provisions, including Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. and Salem
Advocate Bar Association v. Union of India, highlighting their implications for family dispute
resolution.

Justice Chandrachud’s article “Judicial Attitudes Toward Family Mediation: Evolving Perspectives
from the Indian Bench” offers rare insights from a judicial perspective on the role of mediation in
family disputes.49 The author traces the evolution of judicial attitudes from initial skepticism to
growing recognition of mediation’s value in resolving family conflicts. Drawing on his experience

45
Kamakshi Puri, “Mediation in Family Law Disputes in India” (April 17, 2024), available at:
https://jgu.edu.in/mappingADR/mediation-in-family-law-disputes-in-india/ (last visited on May 12, 2025).
46
Id.
47
Upendra Baxi, “On how not to judge the judges: Notes towards evaluation of the Judicial Role” 25 Journal of
Indian Law Institute 211 (1983).
48
K.S. Ramamoorthy, “Section 89, CPC and Family Courts Act: Complementary Frameworks for Family Dispute
Resolution” 55 Journal of the Indian Law Institute 278-295 (2023).
49
D.Y. Chandrachud, “Judicial Attitudes Toward Family Mediation: Evolving Perspectives from the Indian Bench”
10 Supreme Court Cases Journal 15-32 (2020).

17
as a judge, Chandrachud identifies factors that influence judicial referrals to mediation and
proposes strategies for enhancing collaboration between judges and mediators in family cases.

Saxena’s “The Enforceability of Mediated Settlements in Family Disputes: Legal and Practical
Challenges” addresses the critical issue of compliance with mediated agreements in family
matters.50 Through analysis of case law and empirical findings, the author examines various
mechanisms for enhancing the enforceability of mediated settlements, including court ratification,
consent decrees, and periodic review mechanisms. The article provides practical recommendations
for drafting durable agreements that minimize enforcement challenges.

Vasudevan’s article “Custody Mediation in India: Balancing Parental Rights and Child Welfare”
examines the specific considerations involved in mediating child custody and visitation disputes
in the Indian context.51 The author analyzes how principles such as “best interests of the child”
and “welfare of the minor” are interpreted and applied in custody mediation, drawing on case
studies from family courts in metropolitan areas. The article proposes a structured approach to
custody mediation that incorporates age-appropriate child consultation while respecting parental
decision-making authority.

In “Mediation in Matrimonial Property Disputes: Challenges and Opportunities,” Gupta examines

how mediation can address the complex financial dimensions of marital dissolution.52 The author
identifies specific challenges in the Indian context, including limited financial disclosure, informal
family business arrangements, and gendered patterns of property ownership. The article proposes
specialized approaches for property mediation, including the use of financial experts, structured
disclosure protocols, and consideration of women’s indirect contributions to family assets.

Menon’s “Elder Care Mediation: Addressing Intergenerational Family Conflicts” addresses the
emerging area of disputes related to care and support for elderly family members. 53 The author
examines how traditional expectations regarding filial responsibility intersect with contemporary
realities of nuclear families, migration, and changing social norms, creating new patterns of family

50
Rahul Saxena, “The Enforceability of Mediated Settlements in Family Disputes: Legal and Practical Challenges”
32 Arbitration Law Reporter 112-128 (2022).
51
Lakshmi Vasudevan, “Custody Mediation in India: Balancing Parental Rights and Child Welfare” 28 Journal of
Family Law and Practice 112-130 (2022).
52
Priyanka Gupta, “Mediation in Matrimonial Property Disputes: Challenges and Opportunities” 24 Family Law
Review 67-85 (2023).
53
Sujata Menon, “Elder Care Mediation: Addressing Intergenerational Family Conflicts” 22 Elder Law Journal of
India 34-52 (2021).

18
conflict. The article proposes a multi-generational mediation model that acknowledges the needs
and perspectives of all family members while ensuring protection for vulnerable elders.

Sharma and Patel’s “Mediation Outcomes in Divorce Cases: An Empirical Study of Court-
Annexed Mediation in Delhi” presents findings from a five-year study of divorce mediation
outcomes.54 The researchers examined 500 cases referred to the Delhi High Court Mediation
Center, tracking settlement rates, agreement durability, and participant satisfaction. Their findings
reveal a 67% settlement rate overall, with significant variations across demographic groups and
dispute types. The study identifies factors associated with successful outcomes, including mediator
experience, case characteristics, and timing of referral.

Bose’s “Gender and Power in Family Mediation: An Empirical Analysis” addresses the critical
issue of gender dynamics in family mediation processes.55 Through interviews and observations
of 75 mediation sessions, the researcher examines how gender influences participation, negotiation
strategies, and outcomes in family mediation. The findings reveal persistent gender asymmetries
in mediation processes, including speaking time, issue framing, and mediator interventions. The
article proposes specific strategies for gender-sensitive mediation practice, including enhanced
screening, co-mediation models, and procedural safeguards.

Singh and Kumar’s “Cost-Effectiveness Analysis of Family ADR: Comparing Litigation,

Mediation, and Arbitration” employs economic analysis to evaluate different dispute resolution
mechanisms for family conflicts.56 The researchers conducted a comparative cost assessment
including direct expenses, time costs, emotional costs, and long-term relationship impacts across
different resolution methods. Their findings demonstrate that while mediation shows the most
favorable overall cost-benefit ratio, the optimal mechanism varies depending on factors such as
dispute complexity, relationship dynamics, and economic resources of the parties.

Chopra’s article “Online Family Dispute Resolution in India: Prospects and Challenges” examines
the potential of technology to transform family dispute resolution, particularly in light of recent

54
Nikhil Sharma and Priya Patel, “Mediation Outcomes in Divorce Cases: An Empirical Study of Court-Annexed
Mediation in Delhi” 17 Indian Journal of Empirical Legal Studies 219-238 (2022).
55
Anjali Bose, “Gender and Power in Family Mediation: An Empirical Analysis” 29 Indian Journal of Gender
Studies 87-106 (2022).
56
Rajiv Singh and Avinash Kumar, “Cost-Effectiveness Analysis of Family ADR: Comparing Litigation, Mediation,
and Arbitration” 14 Journal of Legal Economics and Policy 156-175 (2023).

19
developments accelerating digital adoption.57 The author analyzes various technological platforms
and tools for family ODR, discussing issues such as digital accessibility, confidentiality, and
procedural adaptations for the online environment. The article presents findings from a pilot
project implementing online mediation for family disputes, demonstrating both promising
outcomes and implementation challenges.

In “Collaborative Law for Indian Families: A New Paradigm,” Verma introduces the collaborative
law model to the Indian context, examining its potential application to family disputes.58 The
author describes the core principles of collaborative practice, including disqualification
agreements, team approaches, and interest-based negotiation, analyzing how these elements might
be adapted to align with Indian legal and cultural contexts. The article includes case studies from
other jurisdictions where collaborative law has been successfully implemented, proposing a
framework for developing this practice in India.

Rahman’s “Therapeutic Family Dispute Resolution: Integrating Mental Health Perspectives in

Mediation” examines how principles of therapeutic jurisprudence can enhance family dispute
resolution processes.59 The author proposes an integrated model that incorporates mental health
professionals, trauma-informed practices, and healing-oriented approaches within various ADR
mechanisms. The article argues that addressing the psychological dimensions of family conflict is
essential for achieving not only legal resolution but also emotional healing and family
restructuring.

1.11 SCHEME OF CHAPTERS

• CHAPTER 1: INTRODUCTION

This chapter provides the foundational context for the study by introducing the concept of dispute
resolution, explaining the emergence of Alternative Dispute Resolution mechanisms as a response
to the limitations of traditional litigation. It covers the pluralistic legal framework governing family
disputes in India, the distinctive characteristics of family conflicts, traditional dispute resolution

57
Adarsh Chopra, “Online Family Dispute Resolution in India: Prospects and Challenges” 18 Journal of Online
Dispute Resolution 45-63 (2024).
58
Anita Verma, “Collaborative Law for Indian Families: A New Paradigm” 42 Family Law Quarterly 198-217
(2023).
59
Zainab Rahman, “Therapeutic Family Dispute Resolution: Integrating Mental Health Perspectives in Mediation”
16 Mental Health Law Journal 129-148 (2022).

20
mechanisms, and changing social dynamics affecting family disputes. The chapter discusses the
significance of ADR in the present legal and social context, outlines the problem statement,
research objectives, questions, hypothesis, methodology, scope, limitations, and reviews existing
literature on the subject.

• CHAPTER 2: CONCEPTUAL UNDERPINNINGS OF ADR IN LAW

This chapter examines the theoretical foundations of Alternative Dispute Resolution, exploring its
historical evolution, nature, meaning, and scope. It discusses theoretical justifications including
natural justice principles, restorative justice, and jurisprudence of harmony. The chapter provides
a detailed classification of ADR methods including arbitration, conciliation, mediation,
negotiation, Lok Adalats, and Online Dispute Resolution. It analyzes the comparative advantages
of ADR over litigation in terms of speed, cost, confidentiality, flexibility, and party autonomy,
while also addressing limitations and potential misuse of ADR mechanisms. The chapter concludes
by discussing ADR as a tool for legal empowerment and social justice.

• CHAPTER 3: LEGAL FRAMEWORK OF ADR IN INDIA

This chapter analyzes the constitutional and statutory foundations of ADR in India. It examines
relevant constitutional provisions including Articles 14, 21, and 39-A that support alternative
resolution mechanisms. The chapter provides an in-depth analysis of key legislation including the
Arbitration and Conciliation Act, Section 89 of the Civil Procedure Code, Legal Services
Authorities Act, Family Courts Act, and the Mediation Act, 2023. It reviews landmark judicial
decisions encouraging ADR adoption and explores institutional mechanisms including court-
annexed mediation centers, arbitration institutions, and Lok Adalats. The chapter also evaluates
the role of NALSA and State Legal Services Authorities in promoting ADR.

• CHAPTER 4: LEGAL DIMENSIONS AND DOCTRINAL ANALYSIS OF ADR IN

FAMILY DISPUTES IN INDIA

This chapter provides a comprehensive examination of family disputes within India’s legal
framework. It defines and classifies various types of family disputes including divorce, child
custody, maintenance, domestic violence, and property disputes. The chapter analyzes how
different personal law systems (Hindu, Muslim, Christian, Parsi, and secular law) govern family
matters.

21
The chapter analyzes the application of specific ADR mechanisms to various family disputes:
mediation in matrimonial disputes, conciliation in divorce and custody matters, Lok Adalats, and
pre-litigation mediation. It examines procedural guidelines, confidentiality issues, informed
consent requirements, and power imbalance considerations.

• CHAPTER 5: JUDICIAL INTERPRETATION AND CASE LAW ANALYSIS

This chapter conducts a thorough doctrinal analysis of judicial interpretations regarding ADR in
family disputes. It examines judicial attitudes toward ADR and provides detailed analysis of
landmark judgments including Afcons Infrastructure v. Cherian Varkey Construction, K. Srinivas
Rao v. D.A. Deepa, and other significant cases. The chapter identifies and evaluates doctrinal
themes emerging from case analysis, including the judge’s role as referral authority, principles of
voluntariness and party autonomy, and enforcement of settlements. It critically examines trends
and divergences in judicial reasoning, evaluates consistency in judicial promotion of ADR, and
analyzes the legal effect of settlement agreements reached through ADR processes.

• CHAPTER 6: CHALLENGES, REFORMS AND RECOMMENDATIONS

This chapter identifies key challenges in implementing ADR for family disputes, including lack of
awareness, inadequate infrastructure, cultural resistance, and concerns about gender sensitivity and
power asymmetry. It analyzes gaps in the current legal and institutional framework and argues for
uniform family ADR guidelines. The chapter proposes policy and legislative reforms including
implementation of the Mediation Act, 2023, capacity building for mediators, and mandatory pre-
litigation mediation. It provides evidence-based recommendations for strengthening ADR in
family law through legal aid, legal literacy programs, integration of mental health support, and
gender-sensitive mediation practices.

• CHAPTER 7: CONCLUSION

This chapter synthesizes the research findings, assesses the validity of the initial hypothesis, and
evaluates how effectively the doctrinal methodologpy has achieved the research objectives. It
presents concluding observations on the role and potential of ADR in resolving family disputes in
India, highlighting both achievements and ongoing challenges. The chapter identifies areas
requiring further research and provides a roadmap for future scholarship in this domain.

22
CHAPTER 2: CONCEPTUAL UNDERPINNINGS OF ADR IN
LAW
2.1 HISTORICAL EVOLUTION OF ADR

The concept of Alternative Dispute Resolution (ADR) has deep roots embedded in the cultural,
social, and legal traditions of India. ADR is not merely a modern legal innovation but an organic
outgrowth of India’s indigenous conflict resolution traditions. The village panchayats under the
ancient legal system provided an early form of dispute resolution outside formal judicial
mechanisms. These panchayats often consisted of community elders and resolved conflicts on the
basis of fairness, equity, and customary norms, without resorting to complex procedural laws. The
Manusmriti, one of the earliest treatises on Hindu law, also acknowledged the role of community-
led dispute resolution bodies like Kulani, Shreni, and Puga in resolving civil and familial issues.60

During the Mauryan and Gupta periods, the dharmasastras and legal codes described the existence
of arbitration-like systems. Kautilya’s Arthashastra even formalized the idea of appointed
arbitrators or “Madhyasthas” to settle matters where parties agreed on mutual adjudication,
reflecting the embryonic stage of arbitration in ancient India.61 In Muslim jurisprudence during the
Delhi Sultanate and Mughal era, the institution of Qazi played a key role in conflict resolution,
particularly in family and property disputes. The Qazis often functioned with a conciliatory
approach, guided by principles of Sharia, especially in matrimonial and inheritance conflicts.62

British colonial influence significantly altered the traditional framework. The British introduced
formal legal institutions under the charter acts and codified laws, such as the Indian Evidence Act,
1872, and the Civil Procedure Code, 1859 (later revised as the Code of Civil Procedure, 1908),
replacing informal justice with rigid proceduralism. This period saw a decline in traditional ADR
as formal courts took over dispute resolution. However, the British also made early efforts to
recognize arbitration as an alternative mechanism. The Bengal Regulation Act of 1772 allowed
parties to choose arbitrators to resolve specific civil disputes, marking one of the first colonial
legal recognitions of ADR.63

60
Manusmriti, chap. VIII, sl. 219-220.
61
Kautilya, Arthashastra, Book III, ch. 1-4.
62
Tahir Mahmood, Muslim Law in India and Abroad 204-208 (LexisNexis, Gurgaon, 2012).
63
Bengal Regulation Act, 1772, ss. 11-14.

23
The Arbitration Act of 1940 was India’s first consolidated statute on arbitration. It governed
domestic arbitration, but its structure was highly influenced by the British model and proved
inadequate over time. Its procedure was time-consuming and lacked judicial independence, leading
to minimal use. It also did not apply to conciliatory processes or family mediation, which limited
its scope in resolving matrimonial disputes.64

Post-independence, India witnessed a reawakening of interest in ADR, with constitutional

emphasis on justice, equality, and speedy redress. Article 39A of the Constitution of India directs
the state to provide free legal aid and ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities. This laid the foundation for exploring
out-of-court settlements and community dispute redress mechanisms.65

A significant turning point came with the enactment of the Legal Services Authorities Act, 1987,
which institutionalized Lok Adalats. These people’s courts functioned under the aegis of the Legal
Services Authorities and became vital forums for the disposal of pending disputes, especially in
family law cases involving maintenance, divorce by mutual consent, custody, and alimony. In K.N.
Govindan Kutty Menon v. C.D. Shaji, (2010) 2 SCC 148, the Supreme Court upheld the binding
nature of awards passed by Lok Adalats, reinforcing their legitimacy.66

Simultaneously, the judiciary played a crucial role in promoting ADR. In Hussainara Khatoon v.
State of Bihar, AIR 1979 SC 1369, Justice Bhagwati emphasized the right to speedy trial as a
fundamental right under Article 21. This interpretation paved the way for promoting ADR
mechanisms as a means to reduce judicial backlog and deliver timely justice.67 The judiciary began
referring cases to mediation centers, particularly for matrimonial disputes, realizing the therapeutic
potential of mediation in sensitive family matters.

The 1996 enactment of the Arbitration and Conciliation Act, based on the UNCITRAL Model Law
on International Commercial Arbitration, marked a watershed moment. For the first time, the Act
recognized conciliation-a process distinct from arbitration-thereby giving legal status to negotiated
settlements. Section 89 of the Code of Civil Procedure, 1908 was amended in 2002 to formally
empower civil courts to refer disputes for resolution through arbitration, conciliation, mediation,

64
The Arbitration Act, 1940 (Act 10 of 1940), ss. 2, 20, 34.
65
The Constitution of India, art. 39A.
66
K.N. Govindan Kutty Menon v. C.D. Shaji, (2010) 2 SCC 148.
67
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

24
or judicial settlement, whenever there existed an element of settlement acceptable to the parties.68
Though Section 89 remained dormant for a few years, it gained momentum after the decision in
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, where the Supreme Court
laid down guidelines for its effective implementation.69

In the sphere of family law, mediation proved to be transformative. The Family Courts Act, 1984,
under Section 9, directed family courts to make efforts for settlement before adjudicating disputes.
Family courts started incorporating counsellors and mediation officers to facilitate resolution. In
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24, the
Supreme Court identified categories of disputes suitable for ADR, including matrimonial and
custody matters.

2.2 NATURE, MEANING AND SCOPE OF ADR

Alternative Dispute Resolution (ADR) refers to structured methods of resolving legal disputes
without recourse to adversarial litigation. These methods promote negotiation, dialogue, and
compromise rather than judicial confrontation. ADR includes processes like arbitration, mediation,
conciliation, negotiation, and Lok Adalat. Each method is unique in form and procedure, but the
common thread is that they all offer alternatives to traditional courtroom proceedings.70

ADR is non-adversarial by nature. It aims to build consensus, not destroy relationships. In family
disputes, this feature becomes central. Disputes concerning marriage, custody, inheritance, or
maintenance require preservation of dignity, emotional healing, and sensitive handling. Litigation
worsens animosity. ADR, by contrast, protects relationships, reduces stress, and fosters closure
through dialogue.71

Mediation stands out for its participatory character. Parties retain control over the outcome. The
mediator guides the discussion, but the resolution is voluntary. It is informal, flexible, and
confidential. This fosters a less intimidating environment for disputants. In Moti Ram v. Ashok

68
The Code of Civil Procedure, 1908 (Act 5 of 1908), s. 89.
69
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
70
B.P. Saraf and M. Jhunjhunwala, Law of Arbitration and Conciliation 10 (Snow White, Mumbai, 3rd edn., 2008).
71
B.S. Patil, “Resolving Family Conflicts through ADR” 3 Journal of Indian Law Institute 142 (2014).

25
Kumar, (2011) 1 SCC 466, the Supreme Court emphasized that in matrimonial cases, mediation
should be encouraged before litigation begins, as it saves relationships and time.72

Arbitration is quasi-judicial. It allows disputing parties to appoint arbitrators and resolve conflicts
under agreed terms. The award is binding. While used mostly in commercial contexts, it has limited
scope in family disputes, given the need for emotional sensitivity. However, issues like division of
family businesses or property rights among siblings can be arbitrated if parties agree.73

Conciliation is a process midway between mediation and arbitration. The conciliator plays a more
proactive role than a mediator, suggesting terms of settlement. This is particularly relevant in
Hindu and Muslim family law disputes, where community elders or religious conciliators often
mediate and propose amicable terms. Under s. 4 of the Arbitration and Conciliation Act, 1996,
conciliation is encouraged in both civil and family matters.74

Negotiation is the simplest ADR tool. No third-party intervention is needed. It’s a dialogue
between parties to resolve disputes by compromise. It is informal, swift, and usually the first step.
In family matters, parties or their legal representatives often engage in negotiation before moving
to formal ADR or courts.75

Lok Adalats, established under the Legal Services Authorities Act, 1987, are people’s courts that
resolve disputes through compromise. They are best suited for compoundable offences, divorce by
mutual consent, maintenance, and custody matters. Their awards are deemed decrees of civil courts
and are binding. In State of Punjab v. Jalour Singh, (2008) 2 SCC 660, the Court clarified that Lok
Adalat decisions must be based on consent, not adjudication.76

The nature of ADR is fundamentally consensual. Parties must voluntarily agree to participate. This
consent-based mechanism strengthens party autonomy. They also select the forum, procedure, and
sometimes even the law applicable. The adversarial model lacks this autonomy. ADR, thus,
promotes self-determination and mutual respect.77

72
Moti Ram v. Ashok Kumar, (2011) 1 SCC 466.
73
Avtar Singh, Law of Arbitration and Conciliation 37 (Eastern Book Company, Lucknow, 5th edn., 2008).
74
The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s. 4.
75
A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386.
76
State of Punjab v. Jalour Singh, (2008) 2 SCC 660.
77
Nandini Chatterjee, “Party Autonomy in ADR and Indian Law” 7 Indian Bar Review 189 (2012).

26
ADR is also time-efficient. Indian courts are overburdened. ADR reduces pendency. The Law
Commission in its 222nd Report noted that ADR mechanisms ease the burden on courts and ensure
faster access to justice. Especially in family matters where time-sensitive decisions-like custody-
are involved, ADR provides speedy relief.78 Cost-effectiveness is another critical feature.
Litigation entails high legal fees, court costs, and expenses over years. ADR mechanisms are less
expensive. Most Lok Adalat and mediation centre services are free or nominally charged. This
benefits economically weaker sections, particularly women in family disputes, who often lack
independent financial means.79

Confidentiality forms the backbone of ADR. Court records are public. ADR sessions are private.
This safeguards reputation, emotional peace, and trust. In Sukanya Holdings Pvt. Ltd. v. Jayesh H.
Pandya, (2003) 5 SCC 531, the Supreme Court underlined the importance of confidentiality in
arbitration and conciliation proceedings. Family disputes involve personal matters. Confidential
handling prevents social stigma and preserves dignity. ADR also upholds the principle of
restorative justice. Litigation is punitive. ADR is rehabilitative. In family conflicts, the goal isn’t
punishment-it’s healing. For instance, mediation encourages post-separation co-parenting plans.
This promotes long-term family health and child welfare. Courts increasingly refer matrimonial
cases to mediation for this reason.

From a constitutional lens, ADR reflects the principles enshrined in Article 14 and Article 21-
equality before law and right to life and personal liberty. Speedy justice is part of Article 21, as
held in Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369. ADR facilitates access to justice
for those unable to navigate or afford formal litigation.

The scope of ADR has widened over the years. Initially limited to commercial disputes, it now
includes labour, consumer, family, property, and environmental matters. Section 89 of the Code of
Civil Procedure, 1908 formally mandates courts to refer disputes for ADR methods where
settlement is possible. The Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.,
(2010) 8 SCC 24 decision gave life to Section 89 by listing suitable dispute categories, including
matrimonial and maintenance cases.

78
Law Commission of India, “222nd Report on Need for Justice-dispensation through ADR etc.” (2009).
79
Government of India, “Annual Report on Legal Services Authorities” 67 (Ministry of Law and Justice, 2019).

27
In family law, ADR applies to a wide range of issues. Divorce by mutual consent under s. 13B of
the Hindu Marriage Act, 1955 often involves pre-litigation mediation. Maintenance claims under
s. 125 of the Criminal Procedure Code or under personal laws like the Muslim Women (Protection
of Rights on Divorce) Act, 1986, may be resolved by negotiation or mediation. Child custody
battles under the Guardians and Wards Act, 1890 are increasingly settled through mediation.

Religious personal laws in India implicitly support conciliatory approaches. In Hindu law, disputes
concerning joint family property or marital separation often involve village panchayats or caste
councils. Muslim law encourages tahkeem (arbitration) and sulh (conciliation) to resolve marital
conflicts. Christian ecclesiastical bodies provide spiritual counselling and reconciliation before
legal separation. Thus, ADR aligns with India’s plural legal culture.

2.3 THEORETICAL JUSTIFICATIONS FOR ADR

2.3.1 Natural Justice and Restorative Justice Principles

Natural justice demands fairness. It’s not just about laws. It’s about how laws are applied. The two
core rules-audi alteram partem and nemo judex in causa sua-shape justice delivery. ADR
mechanisms deeply reflect these. In mediation or conciliation, parties are heard equally. There’s
no rush, no technicality. Just conversation. No one dominates. The space is equal. In A.K. Kraipak
v. Union of India, AIR 1970 SC 150, the Supreme Court held that the rules of natural justice must
be read into administrative processes, even if statutes are silent. ADR, though informal, honours
this principle more naturally than rigid courtrooms.80

In family disputes, emotions run high. Courts follow strict timelines, formal pleadings. But in
mediation, the narrative unfolds freely. Parties get to speak their truths. No lawyer interrupts. No
judge dictates. The balance of hearing is real. This gives victims, especially women or children, a
sense of dignity. It heals the imbalance often caused by procedural domination. The Delhi High
Court Mediation Centre, in multiple reports, noted higher success rates in matrimonial mediations
due to open, equal platforms given to both spouses.81

Neutrality is the soul of justice. Natural justice bars biased adjudication. ADR ensures impartiality.
Mediators and arbitrators must disclose conflicts. They have no stake in the dispute. In Secretary,

80
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
81
Delhi High Court Mediation and Conciliation Centre, “Annual Case Disposal Report”, (2019).

28
Ministry of Chemicals v. Cipla Ltd., (2003) 7 SCC 1, the Supreme Court observed that impartiality
of decision-makers is vital to justice delivery. In family cases, this prevents escalation of distrust.
Parties know the mediator has no allegiance. Trust builds. Agreement follows.82

The second justification lies in restorative justice. Courts look backward. They focus on wrongs.
ADR looks forward. It tries to repair harm. Restorative justice is about dialogue,
acknowledgement, healing. Not punishment. This aligns well with the goals of family law. Divorce
isn’t just legal. It’s emotional. Custody battles affect children. Maintenance affects survival. These
aren’t crimes. They’re breakdowns of personal relationships. ADR restores peace where law ends.

Restorative justice isn’t new. It goes back to ancient Indian panchayat systems. Elders didn’t
punish. They mediated. They found balance. Reconciled differences. The Samasya samadhan
traditions in rural Madhya Pradesh or Gujarat still follow this. Parties meet. Community supports.
Decisions aim at social repair, not victory. Modern mediation draws from these same values. The
process is cooperative. It rebuilds human connections. Family ADR is deeply rooted in such
restorative traditions.83

In Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640, the Supreme Court observed that courts must not
mechanically grant divorce but should first explore possibility of reconciliation. It highlighted the
role of mediation to preserve matrimonial bonds. This approach mirrors restorative justice. The
idea is not to punish the spouse, but to understand what went wrong and, if possible, restore what
was lost.84

Restorative justice also gives voice to those often unheard. In family disputes, women and children
face social silencing. ADR empowers them. The informal setting removes fear. It lets them speak.
This participation restores their agency. In Santoshi v. Balram, 2012 SCC OnLine Del 4076, the
Delhi High Court appreciated the use of child-inclusive mediation in custody disputes. Children
shared their needs. Parents adjusted. Justice was done not to the statute but to the soul.85

ADR also avoids the winner-loser framework. Family disputes are not contests. Courts must
pronounce one right, one wrong. ADR avoids this. It recognises shared suffering. It lets parties

82
Secretary, Ministry of Chemicals v. Cipla Ltd., (2003) 7 SCC 1.
83
Baxi Upendra, “Law and Community Justice in India” 25 Journal of Indian Law Institute 130 (1983).
84
Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640.
85
Santoshi v. Balram, 2012 SCC OnLine Del 4076.

29
walk away with compromise, not defeat. In Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479, the
apex court suggested ADR for resolving child custody matters by balancing parental interests with
welfare of the child. Not one parent won. The child did.86

Procedural fairness is a natural justice mandate. But courts, over time, grew too procedural.
Pleadings. Evidence. Adjournments. Appeals. Justice delays. In ADR, this maze is absent. Disputes
resolve in weeks, sometimes in a day. Justice is quick. In family matters, this makes a difference.
A delayed maintenance order is useless. A dragged custody trial hurts the child. ADR respects the
urgency of emotions. It delivers not perfect justice, but timely justice.87

Also, natural justice involves hearing without fear. In Maneka Gandhi v. Union of India, AIR 1978
SC 597, the Court expanded Article 21 to include fairness, reasonableness, and justness in all
processes affecting life and liberty. ADR embodies these better than adversarial courts. The
freedom to speak without consequences. To walk out without cost. To listen and be heard. These
are forms of procedural liberty that ADR gives more richly.88

Restorative justice includes symbolic healing. In family mediation, apologies matter. Expressions
of regret restore emotional balance. Court judgments lack such symbols. Mediation encourages
this healing language. In K.S. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Court directed
the parties to mediation and observed that emotional scars need more than legal remedies. They
need mutual understanding, closure.89

2.3.2 Jurisprudence of Harmony and Compromise

Harmony lies at the core of Indian legal philosophy. The Dharmaśāstras, ancient Hindu legal texts,
treat law as a tool to maintain societal balance. Not just to punish. Law was meant to preserve
order and peace. Conflicts were seen as disruptions. Solutions were expected to restore harmony.
The concept of Samdhan-peaceful reconciliation-was integral. ADR reflects this old ethos. It helps
avoid confrontation. It resolves through consensus. It aligns with the Indian legal tradition that
views justice not as punishment but as restoration of societal and familial balance.90

86
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.
87
Law Commission of India, “Report on Reforms in Civil Justice System” (2006).
88
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
89
K.S. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
90
P.V. Kane, History of Dharmasastra Vol. 3, 842 (Bhandarkar Oriental Research Institute, Pune, 1962).

30
Compromise in Indian law is not failure. It’s success. It means choosing mutual benefit over
personal gain. In Bhanumati v. State of Uttar Pradesh, (2010) 12 SCC 1, the Supreme Court
explained that law in a diverse society must lean towards inclusive justice. Harmony is not forced
silence. It’s collaborative peace. ADR, especially in family disputes, promotes such peaceful co-
existence. The rigid adversarial model imposes a binary outcome. But compromise accepts that
both parties may be right in parts. It respects complexity.91

The Constitution embraces these values. Article 51A(e) promotes harmony among all citizens.
Directive Principles under Article 39A seek equitable access to justice. This is not only procedural.
It is philosophical. Justice, to be meaningful, must include emotional and relational resolution. In
matrimonial matters, litigation often widens the breach. ADR heals. Courts themselves
acknowledge this. In Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559, the Court noted that
compromise avoids bitter litigation and preserves relationships. Family is not a forum for victory.
It’s a space for healing.92

Indian jurisprudence evolved around the idea of Nyaya-justice based on wisdom and fairness. Not
just rigid statutes. Compromise was seen as wise. In village panchayats, compromise was
encouraged. The elders guided disputants not to win, but to reconcile. This idea is still relevant. In
family ADR, mediators often act like these elders. They offer guidance. They suggest middle paths.
The outcome may not be legalistic, but it is just. It preserves dignity. It reduces trauma. It brings
closure.93

The jurisprudence of compromise also finds mention in procedural law. Under Order XXIII Rule
3 of the Code of Civil Procedure, compromise decrees are recognized and enforceable. This is a
statutory recognition of the value of compromise in civil disputes, including family cases. In
Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270, the Court explained that a compromise
has the same force as a judgment. It carries finality and reflects the parties’ own will. In ADR, the
solution is theirs. Not imposed by a judge. This voluntary nature gives it legitimacy and
satisfaction.94

91
Bhanumati v. State of Uttar Pradesh, (2010) 12 SCC 1.
92
Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559.
93
Marc Galanter, “Justice in Many Rooms: Courts, Private Ordering and Indigenous Law” 19 Journal of Legal
Pluralism 1 (1981).
94
Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270.

31
Harmony is also central to personal laws. Hindu law emphasizes samskara, the sacredness of
marriage. Ending it requires sensitive handling. The Hindu Marriage Act, 1955 under s. 23(2) even
mandates an attempt for reconciliation before granting divorce. This statutory recognition of
harmony reflects how deeply compromise is embedded in family jurisprudence. Courts try to
protect the family unit before dissolving it. Mediation is the bridge for this effort. In K. Srinivas
Rao v. D.A. Deepa, (2013) 5 SCC 226, the Court advised all family courts to refer matrimonial
disputes to mediation before trial.95

Muslim law has sulh as a concept. It’s a settlement through mutual agreement. It’s an ethical and
spiritual obligation. The tahkeem process-appointment of arbitrators by both parties-is a classic
form of ADR grounded in Islamic law. Marriage is a civil contract in Islam. Its termination or
disputes can be handled through compromise and negotiation without resorting to litigation. These
religious systems have always respected the need for reconciliation over confrontation.96

Christian law also supports conciliation. Many Church bodies offer counselling sessions before
legal action. The Indian Divorce Act, 1869 has provisions for efforts at reconciliation before
dissolution. In Ammini v. Union of India, AIR 1995 Ker 252, the Kerala High Court recognised the
role of the church in facilitating pre-divorce mediation. Thus, compromise as jurisprudential value
cuts across religious boundaries in India.97

Modern ADR statutes also institutionalize this value. The Legal Services Authorities Act, 1987
promotes settlement through Lok Adalats, where compromise is key. No adjudication is done. Only
agreed settlements. These forums have handled lakhs of family disputes. Their success rate shows
people’s trust in compromise. The Arbitration and Conciliation Act, 1996, especially Part III,
recognizes conciliation as a legitimate tool for resolution. In Haresh Dayaram Thakur v. State of
Maharashtra, (2000) 6 SCC 179, the Court affirmed that settlements under conciliation have the
same status as arbitral awards.98

95
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
96
Tahir Mahmood, Muslim Law in India and Abroad 87 (LexisNexis, Gurgaon, 2012).
97
Ammini v. Union of India, AIR 1995 Ker 252.
98
Haresh Dayaram Thakur v. State of Maharashtra, (2000) 6 SCC 179.

32
2.4 CLASSIFICATION OF ADR METHODS

2.4.1 Arbitration – Definition, Scope, Procedure

Arbitration is a private dispute resolution method where parties submit their conflict to one or more
neutral arbitrators. These arbitrators make a binding decision called an arbitral award. It is
governed by mutual consent, contract, and statutory frameworks. In India, the Arbitration and
Conciliation Act, 1996 regulates both domestic and international arbitration. Arbitration offers a
structured process outside the formal court system. Its defining feature is enforceability. Unlike
mediation, the arbitral award has the same status as a court decree under s. 36 of the 1996 Act.99

Section 2(1)(a) of the Act defines arbitration to include any arbitration, whether or not administered
by a permanent arbitral institution. Arbitration may be ad hoc or institutional. Ad hoc arbitration
is self-managed by parties. Institutional arbitration is managed by bodies like the Indian Council
of Arbitration (ICA) or the Delhi International Arbitration Centre (DIAC). These institutions
provide rules, rosters of arbitrators, and procedural frameworks. Arbitration is suitable in matters
involving property, contracts, finance, inheritance division. However, in family disputes, its use is
limited to ancillary civil aspects, not core matrimonial issues.100

Matrimonial issues like divorce, custody, guardianship or legitimacy of children are not arbitrable.
These involve status and public interest. The Supreme Court in Booz Allen and Hamilton Inc. v.
SBI Home Finance Ltd., (2011) 5 SCC 532 held that disputes involving rights in rem are non-
arbitrable. Marriage dissolution is one such right. However, the Court clarified that rights in
personam, like maintenance, division of property, or distribution of joint assets may be arbitrated
if parties consent. Thus, arbitration is partially applicable to family disputes.101

The procedure begins with an arbitration agreement. Section 7 of the Act defines an arbitration
agreement as a written agreement where parties agree to refer present or future disputes to
arbitration. The agreement can be a standalone contract or a clause in a larger contract. Once a
dispute arises, the parties appoint arbitrators. Under s. 11, each party may appoint one arbitrator,

99
The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s. 36.
100
The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s. 2(1)(a); Indian Council of Arbitration, “Rules of
Domestic Arbitration” (2022).
101
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.

33
and the two appointed arbitrators choose a third presiding arbitrator. If parties fail, courts step in
to appoint them. This ensures neutrality and procedural fairness.102

The arbitral tribunal conducts proceedings flexibly. Section 19 states that the tribunal shall not be
bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. This allows more
informal procedures, quick timelines, and relaxed evidentiary standards. Parties may choose the
language, place, and timeline of hearings. The arbitrators are bound by principles of natural justice-
equal opportunity and fair hearing. In ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705, the Court
reaffirmed that the award must be reasoned, fair, and not opposed to public policy.103

Once the proceedings conclude, the tribunal delivers its award. Section 31 mandates that the award
must be in writing, signed by the arbitrators, and contain reasons unless parties agree otherwise.
The award is binding and final unless challenged. Section 34 permits challenge of the award on
grounds like incapacity, invalid agreement, breach of natural justice, or conflict with public policy.
In family-related arbitrations, the scope for challenge is narrow because parties typically choose
known neutral persons, such as family elders or professionals, and trust the outcome.104

Execution of awards is governed by s. 36. Once the time to challenge the award expires, the award
is enforceable like a civil court decree. This makes arbitration efficient. It reduces the burden on
courts. However, family arbitration faces criticism due to its formality, finality, and potential to
sideline emotional dynamics. Critics argue that family disputes need sensitivity, not just
adjudication. That’s why arbitration is rarely used in matrimonial matters but may work in property
or inheritance-related disputes arising post-divorce or post-separation.105

In India, religious personal laws have limited acceptance of arbitration. Under Muslim law, the
tahkeem system allows spouses to appoint arbitrators from each side to resolve disputes. The Qazi
often facilitates such arbitration, and the process is accepted culturally. In M. Siddiq (D) Thr. LRs
v. Mahant Suresh Das, (2019) 18 SCC 1 (Ayodhya case), the Court even cited historical instances
where religious disputes were resolved via arbitration. In Hindu law, however, there is no formal

102
The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), ss. 7, 11.
103
ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705.
104
The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), ss. 31, 34.
105
Gurunath v. Sharadchandra, 2006 SCC OnLine Bom 546.

34
recognition of arbitration in personal matters, though compromise and family mediation are
common.106

2.4.2 Conciliation – Features and Legal Standing

Conciliation is a voluntary, non-adjudicatory method of dispute resolution where a neutral third

party helps disputing individuals reach an amicable settlement. The conciliator does not impose a
decision. Instead, they facilitate dialogue, identify common interests, and propose possible
solutions. It is flexible, party-centric, and confidential. Under Indian law, conciliation is governed
by Part III of the Arbitration and Conciliation Act, 1996. This part is based on the UNCITRAL
Conciliation Rules of 1980 and reflects international best practices in structured dispute
settlement.107

Section 62 of the Act outlines the initiation of conciliation. The process starts when one party
invites the other to participate. If the second party accepts, the conciliation formally begins. There
is no compulsion. Consent remains the backbone. This feature distinguishes it from litigation and
arbitration. The absence of rigid procedural rules makes conciliation adaptable to emotional and
personal conflicts, such as family disputes, where relationships matter more than legal rights.108

The conciliator’s role is proactive. Unlike arbitrators who adjudicate, conciliators assist. They may
meet parties separately or together. They may suggest terms of settlement. They may ask questions,
recommend compromises, and draft settlement proposals. But they do not deliver a verdict. Section
67 of the Act provides that the conciliator shall assist the parties in an independent and impartial
manner. In Haresh Dayaram Thakur v. State of Maharashtra, (2000) 6 SCC 179, the Supreme
Court clarified that a conciliator can act in a more interventionist role compared to a mediator and
still retain neutrality.109

Conciliation’s most significant advantage lies in its informality. It avoids confrontation. It de-
escalates hostility. This is essential in family disputes. Matrimonial conflicts are not merely legal-
they are psychological and emotional. Conciliation allows space to express grievances, seek
explanations, and rebuild trust. It creates a safe environment. A judge or arbitrator may not have

106
M. Siddiq (D) Thr. LRs v. Mahant Suresh Das, (2019) 18 SCC 1.
107
The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), Part III.
108
Ibid., s. 62.
109
Haresh Dayaram Thakur v. State of Maharashtra, (2000) 6 SCC 179.

35
this room to maneuver. Conciliation permits storytelling. It helps resolve misunderstandings. This
therapeutic element makes it appropriate for separation negotiations, maintenance arrangements,
custody discussions, and property settlements among family members.110

Section 73 of the 1996 Act gives legal strength to conciliation. If the parties agree to a settlement,
the conciliator draws up a written settlement agreement. Once signed, it becomes binding. The Act
declares it has the same status and effect as an arbitral award under s. 30. In Jagdish Chander v.
Ramesh Chander, (2007) 5 SCC 719, the Court reaffirmed that settlement through conciliation is
enforceable like a decree. This statutory backing provides credibility. Parties are assured that the
outcome is not just paper-it has legal force.111

Conciliation also protects privacy. Section 75 mandates confidentiality of all matters related to the
conciliation proceedings. This includes proposals, admissions, and settlement terms. In family
matters, this is critical. Allegations of cruelty, abuse, infidelity-these are sensitive. Open court
hearings may damage reputations. Conciliation shelters these narratives. It limits public exposure.
It also builds trust. Parties can speak freely. They know their statements will not be used later in
court. This assurance fosters honesty.112

Conciliation is non-binding until the final settlement is signed. This empowers the parties. They
can withdraw anytime. They can disagree. They can revisit proposals. This procedural freedom
enhances satisfaction. It reduces coercion. Courts have repeatedly observed that settlements
arrived through conciliatory efforts are more durable. In Poonam v. Sumit Tanwar, 2010 SCC
OnLine Del 3884, the Delhi High Court emphasized that family settlements arrived through
conciliation preserve dignity and avoid prolonged litigation.113

The conciliator’s duties include ensuring fairness. Section 66 states that the conciliator is not bound
by the Indian Evidence Act or the Code of Civil Procedure. This does not mean arbitrariness. It
means flexibility. The conciliator must respect equity, fairness, and party equality. The Law
Commission of India in its 129th Report recommended strengthening institutional conciliation for

110
Nandini Chatterjee, “ADR and Family Dispute Resolution in India” 11 Indian Bar Review 76 (2015).
111
Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719.
112
The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s. 75.
113
Poonam v. Sumit Tanwar, 2010 SCC OnLine Del 3884.

36
family matters. It observed that a conciliatory approach yields faster, more satisfactory results in
matrimonial and guardianship disputes.114

Conciliation has gained institutional support. Legal Services Authorities under the 1987 Act
regularly conduct conciliation in Lok Adalats. Many High Courts and Family Courts now have
Conciliation Centres. Trained conciliators assist couples, separated spouses, or family members.
In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court directed all matrimonial
courts to refer parties to conciliation and mediation before proceeding to trial. It observed that such
processes reduce bitterness, protect children’s interests, and offer creative solutions.115

2.4.3 Mediation – Concepts and Characteristics

Mediation is a consensual, non-binding, and confidential method of dispute resolution where a

neutral third party-called the mediator-assists parties in reaching a mutually acceptable settlement.
It is non-adjudicatory. The mediator does not decide. They only facilitate. Mediation is based on
dialogue, empathy, and voluntary participation. In family disputes, mediation offers a safe space
to resolve emotionally sensitive issues. Custody, maintenance, visitation, divorce by mutual
consent-all are effectively handled through this mechanism. Its informal nature makes it suited for
domestic, interpersonal conflicts.116

The concept of mediation finds historical recognition in India’s traditional justice systems. Village
panchayats often resolved disputes through informal discussions led by respected elders. Even
religious institutions played a mediatory role. The evolution of formal mediation in Indian law
came with the amendment to Section 89 of the Code of Civil Procedure, 1908. This provision
empowers civil courts to refer disputes to ADR mechanisms, including mediation. In Afcons
Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24, the Supreme
Court laid down that mediation is appropriate in matrimonial, maintenance, and custody disputes.
It marked a crucial moment in institutionalising mediation in Indian jurisprudence.117

The mediator’s role is that of a facilitator. They maintain neutrality. They listen. They guide the
parties through issues, emotions, and expectations. Unlike arbitration or conciliation, a mediator

114
Law Commission of India, “129th Report on Urban Litigation and Mediation” (1988)
115
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
116
The Code of Civil Procedure, 1908 (Act 5 of 1908), s. 89.
117
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.

37
avoids proposing or imposing solutions. The autonomy rests with the disputants. This respect for
self-determination is a defining trait. Section 9 of the Family Courts Act, 1984 mandates every
family court to attempt settlement through counselling or mediation before adjudication. This
reflects a legal acknowledgment that courtroom confrontation should be the last resort in family
conflicts.118

Mediation’s voluntary nature means that parties enter and exit the process on their own will. There
is no compulsion to continue or settle. This feature builds trust. It reduces anxiety. It ensures
dignity. Parties feel heard. In Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632, the Court held
that in divorce proceedings, courts should always explore settlement through mediation before
dissolving the bond. The Court observed that outcomes achieved through consensual processes
tend to be more humane and longer-lasting.119

Confidentiality is central to mediation. It shields personal narratives. Statements made during the
process cannot be used in court later. The Mediation Act, 2023 under s. 22 codifies this principle.
This ensures emotional and reputational protection. In family disputes involving allegations-
cruelty, infidelity, abandonment-privacy matters. Mediation allows parties to disclose their side
without public scrutiny. It strengthens honest communication. It also prevents legal manipulation
of emotional confessions.120

Flexibility defines mediation’s procedure. There is no strict format. Parties can design the sessions.
They may meet together or separately. They decide the location, timing, and pace. No affidavits.
No cross-examinations. This informality makes it less intimidating. Especially in gender-sensitive
matters. Women facing abuse may fear courtrooms. Mediation allows them to speak freely in a
controlled, safe setting. It also helps in co-parenting negotiations, where both parents want the
child’s welfare but struggle to agree in open court.121

Mediation is interest-based, not rights-based. It focuses on what parties need, not just what law
entitles. This creates creative outcomes. Courts follow statutes. Mediators follow human needs.
For example, a mother may waive maintenance in exchange for joint custody. A father may agree

118
The Family Courts Act, 1984 (Act 66 of 1984), s. 9.
119
Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632.
120
The Mediation Act, 2023 (Act 27 of 2023), s. 22.
121
Mediation and Conciliation Project Committee, “Handbook on Family Mediation Techniques” (Supreme Court of
India, 2019).

38
to financial support in return for regular visitation. These solutions are legally valid if agreed upon.
Courts often endorse such settlements through decrees. In Gaurav Nagpal v. Sumedha Nagpal,
(2009) 1 SCC 42, the Court noted that mediation allows parenting arrangements that courts may
not impose under rigid statutes.122

Neutrality of the mediator is critical. They cannot show bias. They cannot advocate. Their loyalty
is to the process. The Mediation and Conciliation Project Committee (MCPC) of the Supreme
Court lays down training protocols to ensure ethical conduct. The Mediation Act, 2023 establishes
accreditation standards. This promotes professionalism. Trust in the mediator leads to trust in the
process. If neutrality is breached, parties may withdraw. Therefore, mediators must disclose any
potential conflict of interest beforehand.123

2.4.4 Negotiation – Informal Dispute Settlement

Negotiation is the most direct and informal mode of alternative dispute resolution. It involves two
or more parties communicating directly to settle a dispute without third-party intervention. There
is no formal structure. No procedural law. No mediator or arbitrator. The process is guided by
mutual understanding, shared interests, and dialogue. It reflects pure party autonomy. In family
disputes, negotiation is often the first step before any legal or formal method is adopted. It happens
across kitchen tables, in lawyers’ chambers, or over phone calls. No documentation is needed
unless parties formalise the outcome later.124

Negotiation functions on consensus. Not coercion. Both parties must be willing to engage. There
is no binding law compelling negotiation. But legal systems encourage it. The Preamble to the
Mediation Act, 2023 acknowledges negotiation as an essential non-adjudicatory process. Section
3 defines dispute resolution to include negotiation. This recognition gives negotiation a quasi-legal
standing. While not judicially enforceable, a negotiated settlement, if recorded in writing and
signed, may be presented before courts for decree or enforcement. In Salem Advocate Bar
Association v. Union of India, (2005) 6 SCC 344, the Supreme Court supported the use of informal
dialogue before invoking s. 89 CPC.125

122
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
123
The Mediation Act, 2023 (Act 27 of 2023), s. 7.
124
Carrie Menkel-Meadow, “The Transformative Nature of Negotiation: From Conflict to Resolution” 33 Journal of
Legal Education 313 (1983).
125
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

39
Negotiation can be structured or spontaneous. Structured negotiation happens with legal
representatives. Each party assesses the facts, calculates strengths, and identifies settlement goals.
Terms are bargained. Concessions exchanged. Settlement is reached. Spontaneous negotiation
occurs between spouses or relatives without legal advice. It is emotional. Fluid. But often more
effective. Especially where parties want to preserve relationships. In family matters, both types
coexist. A separated couple may start informally. If talks fail, lawyers enter. Even during litigation,
parties continue negotiating through advocates.126

In Indian family law, negotiation plays a quiet but critical role. Maintenance, alimony, visitation
schedules, custody sharing-all are commonly settled through negotiation. Courts encourage it.
Lawyers facilitate it. In Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479, the apex court observed
that in child custody matters, parties must first try to resolve differences amicably before
adversarial litigation begins. This remark reflects the judiciary’s preference for negotiation in
personal disputes.127

Negotiation offers flexibility. Parties decide what to discuss. When to meet. How to communicate.
No strict timelines. This helps reduce stress. Especially for women, elderly parents, or children
involved in family disputes. They feel less intimidated. Negotiation avoids the hierarchy of courts.
It promotes equality. Both parties speak. Listen. Respond. This horizontal structure supports
dignity. It fosters cooperation rather than accusation. In Bhuwan Mohan Singh v. Meena, (2015) 6
SCC 353, the Court noted that delayed maintenance harms the wife’s dignity. Prompt negotiation
helps resolve such issues quickly and respectfully.128

Privacy is another core advantage. Negotiation keeps disputes out of public records. In sensitive
family conflicts-like desertion, adultery, or abuse-privacy helps reduce trauma. Informal
discussions shield children from exposure. They also reduce emotional damage. Unlike mediation,
there’s no third-party listening. This strengthens honesty. If parties trust each other enough to talk
directly, negotiation yields durable outcomes. Confidentiality also ensures that failed negotiations
don’t prejudice subsequent litigation. The Delhi High Court in Poonam v. Sumit Tanwar, 2010

126
R. Narayanaswamy, “Negotiation in Family Disputes: Lawyer’s Role and Ethics” 5 Indian Bar Review 78 (2010).
127
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.
128
Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

40
SCC OnLine Del 3884, appreciated that parties attempted negotiation before litigation, which
reflected their maturity.129

Negotiation preserves relationships. Litigation tears. Negotiation mends. In divorce proceedings,

bitterness can be minimised through early negotiation. Parties may agree to divide assets
peacefully. Decide custody without hostility. Determine future responsibilities with mutual respect.
This is especially useful in joint parenting. Courts may impose contact orders. But co-parenting
plans negotiated by parents often work better. In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1
SCC 42, the Court emphasised welfare of the child over parental rights. Negotiation allows parents
to focus on this welfare instead of personal grievances.130

No rigid law governs negotiation. But its outcomes can be formalised. If parties draft and sign a
settlement, it may be converted into a consent decree. Section 23(2) of the Hindu Marriage Act,
1955 allows courts to pass a divorce decree by mutual consent if conditions are satisfied. The
“mutual consent” element is usually achieved through negotiation. In Amardeep Singh v. Harveen
Kaur, (2017) 8 SCC 746, the Court permitted waiver of the cooling-off period where the couple
had resolved issues amicably through negotiation. This validated the efficiency and sufficiency of
private settlement.131

Negotiation also reduces cost. Lawyers’ fees, court costs, delay expenses-all are avoided. This is
significant for economically weaker parties. Women without financial independence. Elderly
parents abandoned by children. Estranged siblings fighting over property. They often lack the
resources to sustain litigation. Negotiation offers a low-cost, high-return solution. Even if assisted
by lawyers, it’s cheaper than full trials. The Law Commission of India in its 222nd Report stated
that informal negotiations could resolve nearly 40% of pending family disputes if parties were
sensitised and supported.132

2.4.5 Lok Adalats – People’s Courts in India

Lok Adalats are informal quasi-judicial forums for settlement of disputes through compromise and
mutual agreement. They operate under the Legal Services Authorities Act, 1987. These forums are

129
Poonam v. Sumit Tanwar, 2010 SCC OnLine Del 3884.
130
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
131
Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.
132
Law Commission of India, “222nd Report on Need for Justice Dispensation Through ADR etc.” (2009).

41
designed to provide quick, accessible, and low-cost justice to the common people. The term “Lok
Adalat” literally means “People’s Court.” The structure is simple. The process is flexible. The
outcomes are binding. Disputes are resolved not by adjudication but by persuasion, discussion,
and understanding.133

Section 19 of the 1987 Act authorises State Legal Services Authorities, District Authorities, and
Taluk Committees to organise Lok Adalats. These forums are chaired by a sitting or retired judicial
officer and include members from legal and social service backgrounds. Parties must consent to
participate. If any party refuses, the dispute is not heard. The voluntary nature of participation
ensures that settlements are genuine, not coerced. Family disputes particularly benefit from this
design. Divorce by mutual consent, maintenance agreements, custody issues-these are resolved in
a conciliatory setting, without the burden of procedural laws.134

Disputes eligible for Lok Adalats include civil matters, compoundable criminal cases, and issues
pending in courts or pre-litigation. Family matters fall squarely within this scope. Sections 20 and
21 of the Act empower Lok Adalats to pass awards in cases referred by courts or submitted directly
by parties. Once passed, such awards are deemed decrees of civil courts. No appeal lies against a
Lok Adalat award. This finality ensures closure. In K.N. Govindan Kutty Menon v. C.D. Shaji,
(2010) 2 SCC 148, the Supreme Court upheld the binding nature of Lok Adalat awards and
clarified that parties cannot challenge them under Article 226 unless fraud or coercion is alleged.135

The procedure in Lok Adalats is free from the rigidities of the Code of Civil Procedure or the
Indian Evidence Act. This procedural freedom enables resolution through informal dialogue. No
cross-examination. No adjournments. No filings. Just negotiation facilitated by the panel. The
environment is people-friendly. It reduces adversarial tension. This is crucial in family matters.
Estranged spouses may find it hard to engage in courtroom battles. Lok Adalats provide a platform
where emotional distress is minimised, and communication is possible.136

Legal representation is not mandatory in Lok Adalats. This reduces costs. Litigants may appear in
person. Legal Services Authorities offer free legal aid to eligible persons. Poor litigants, women,
elderly, disabled-these vulnerable groups gain from this structure. Family disputes involving

133
The Legal Services Authorities Act, 1987 (Act 39 of 1987), s. 19.
134
Ibid., ss. 20, 21.
135
K.N. Govindan Kutty Menon v. C.D. Shaji, (2010) 2 SCC 148.
136
The Legal Services Authorities Act, 1987 (Act 39 of 1987), s. 22.

42
deserted wives, elderly parents, maintenance claims-all benefit from Lok Adalat intervention. The
National Legal Services Authority (NALSA) reports that over 1 crore cases are settled annually in
Lok Adalats, a large portion of them relating to family law.137

The nature of the Lok Adalat award is consensual. It is not an adjudication. The members do not
“decide.” They “facilitate.” The award reflects the terms agreed upon by the parties. In State of
Punjab v. Jalour Singh, (2008) 2 SCC 660, the Court clarified that a Lok Adalat cannot decide a
dispute on merits without consent. If settlement fails, the matter returns to the regular court. This
reinforces that Lok Adalats are non-coercive. Parties retain control. This autonomy enhances
satisfaction and acceptance of outcomes.138

Pre-litigation Lok Adalats have expanded access to justice. Disputes are taken up before formal
cases are filed. This prevents litigation altogether. Family courts, police stations, and NGOs now
collaborate to identify such cases. Counselling and conciliation are offered. If parties agree, the
settlement is recorded and given legal effect. This approach saves time, money, and emotional
trauma. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court acknowledged
the preventive value of pre-litigation settlement forums, especially for matrimonial cases with
scope for reconciliation.139

NALSA and State Legal Services Authorities conduct National Lok Adalat days every few months.
On these days, large numbers of pending cases are resolved. Family courts actively participate.
Special benches are set up. Parties are encouraged to compromise. These mass settlements reduce
judicial backlog. More importantly, they provide relief to parties waiting for resolution. In S.D.
Joshi v. High Court of Bombay, (2011) 1 SCC 252, the apex court praised the contribution of Lok
Adalats in delivering real-time justice to people.140

Permanent Lok Adalats (PLAs) under Chapter VI-A of the 1987 Act deal with public utility
services like transport, health, and postal services. Although family disputes are not under their
purview, the concept of permanence inspired the institutionalisation of mediation centres in courts.

137
National Legal Services Authority, “Annual Report 2022–2023” (NALSA, New Delhi, 2023).
138
State of Punjab v. Jalour Singh, (2008) 2 SCC 660.
139
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
140
S.D. Joshi v. High Court of Bombay, (2011) 1 SCC 252.

43
The flexibility of Lok Adalats, combined with their finality, inspired policy makers to adopt similar
structures in regular family courts through counselling cells and in-house conciliators.141

Lok Adalats reflect the constitutional mandate of justice-social, economic, and legal. Article 39A
of the Constitution directs the State to ensure equal access to justice. Lok Adalats give life to this
directive. They remove the barriers of cost, delay, and technicality. They democratise justice. They
localise justice. They humanise justice. In family law, where disputes are rooted in emotions,
relationships, and social structures, this humanised model becomes more effective than the formal
adversarial system.142

2.4.6 Online Dispute Resolution (ODR) – A Modern Alternative

Online Dispute Resolution (ODR) is the use of digital platforms and communication technologies
to facilitate dispute resolution processes outside traditional courts. It is not a separate method but
a digital adaptation of existing ADR mechanisms-arbitration, mediation, negotiation. ODR
platforms use tools like emails, video conferencing, chat-based communication, automated bots,
and online document exchange. It enables resolution without physical presence. For family
disputes, ODR presents a transformative alternative. It offers privacy, accessibility, flexibility, and
time-efficiency, especially in emotionally charged or geographically separated cases.143

ODR in India is in its nascent stage but growing. The pandemic pushed courts, tribunals, and ADR
forums into adopting virtual hearings. The Supreme Court’s e-Committee encouraged digital filing
and remote mediation. Institutions like SAMA, CADRE, and AGAMI have developed platforms
for ODR in civil, consumer, and matrimonial matters. The NITI Aayog, in its ODR policy strategy
paper (2021), acknowledged the role of ODR in strengthening access to justice. The report also
recommended institutional recognition of ODR in family and small-value disputes.144

The process of ODR in family disputes varies by platform. It usually begins with party registration,
document upload, and consent-based participation. Parties may choose mediators or conciliators
from accredited panels. Sessions are conducted via video calls, chatrooms, or asynchronous
messaging. Some platforms use AI to match cases with suitable resolution pathways. Others

141
The Legal Services Authorities Act, 1987 (Act 39 of 1987), Chapter VI-A.
142
The Constitution of India, art. 39A.
143
Colin Rule, “Online Dispute Resolution and the Future of Justice” 15 Journal of Internet Law 3 (2011).
144
NITI Aayog, “ODR: The Future of Dispute Resolution in India” (November 2021).

44
include e-negotiation templates to simplify the process. The outcome-be it agreement, mediated
settlement, or withdrawal-is stored securely and can be printed or converted into legally valid
documentation if parties so agree.145

ODR enhances accessibility. Geographical barriers dissolve. A spouse in Delhi and another in
Bengaluru can resolve custody disputes without travel. Women facing social restrictions can access
mediation privately. Persons with disabilities, elderly parties, and caregivers can participate from
home. The cost drops. Proceedings are quicker. This makes ODR inclusive. In State of
Maharashtra v. Praful Desai, (2003) 4 SCC 601, the Supreme Court upheld the validity of
recording evidence via video conferencing. This recognition strengthens the legitimacy of remote
proceedings in Indian jurisprudence.146

Confidentiality in ODR is robust. Platforms deploy encryption, password-protected portals, secure

logins, and end-to-end data protection. Sensitive matters like divorce grounds, alimony
negotiations, and domestic grievances are discussed behind digital walls. Compared to physical
courtrooms or public Lok Adalats, ODR offers enhanced informational privacy. Section 22 of the
Mediation Act, 2023 reinforces confidentiality in digital mediation, stating that communications
in online proceedings shall not be admissible in any future judicial proceedings unless parties agree
otherwise.147

Flexibility is a key feature. ODR allows asynchronous communication. Parties can respond at their
convenience. Unlike physical mediation where sessions are continuous, online dispute resolution
permits phased conversations. This helps in family matters where emotional readiness fluctuates.
Parents navigating separation may need time between discussions. ODR accommodates this. There
is no rigid timeframe. Platforms can schedule multi-session models where parties negotiate, cool
off, and return to refine terms.148

ODR can reduce adversarial intensity. Physical settings sometimes escalate tension. Face-to-face
confrontation can be intimidating. In ODR, emotional outbursts are controlled. Written exchanges
give time for reflection. Parties focus more on resolution than reaction. Family disputes often carry

145
SAMA, “How Online Family Dispute Resolution Works”, available at: https://www.sama.live (last visited on
May 18, 2025).
146
State of Maharashtra v. Praful Desai, (2003) 4 SCC 601.
147
The Mediation Act, 2023 (Act 27 of 2023), s. 22.
148
AGAMI, “ODR Handbook for Family Disputes” (2022).

45
deep emotional wounds. ODR offers psychological distancing while still maintaining engagement.
In Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591, the Court recognised the value of
environment-sensitive approaches in family law. ODR aligns with this reasoning.149

The enforceability of ODR outcomes is governed by existing laws. Settlements reached through
online mediation are valid if signed digitally or affirmed through secure channels. Section 20 of
the Mediation Act, 2023 provides that a mediated settlement agreement, including one concluded
digitally, has the status of a civil court decree. This grants legal sanctity to ODR outcomes.
However, for arbitration, the Arbitration and Conciliation Act, 1996 requires that the award be in
writing and signed. Platforms now incorporate e-signature tools and certified timestamping to meet
these requirements.150

Challenges exist. Digital divide is real. Rural litigants may lack connectivity. Language barriers
persist. Legal literacy is limited. Not all family court litigants are tech-savvy. There are concerns
around impersonation, unauthorized access, and consent manipulation. Emotional expression in
online settings is restricted. Body language, facial cues, and tone may be misread. The absence of
trained digital mediators is another concern. To address this, the Supreme Court’s MCPC has
launched digital capacity-building modules for family court mediators. Legal aid clinics are also
training para-legal volunteers to assist parties in accessing ODR platforms.151

149
Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591.
150
The Mediation Act, 2023 (Act 27 of 2023), s. 20; The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s.
31.
151
Supreme Court Mediation and Conciliation Project Committee, “Digital Mediation Training Guidelines” (2023).

46
CHAPTER 3: LEGAL FRAMEWORK OF ADR IN INDIA
3.1 CONSTITUTIONAL PROVISIONS SUPPORTING ADR

3.1.1 Article 14 – Equality Before Law

Article 14 of the Constitution guarantees equality before law and equal protection of laws. It
prohibits arbitrariness in state action. It ensures that every individual, regardless of identity or
status, must have fair access to justice. ADR strengthens this guarantee. It creates an alternative
route where legal equality is more than formal-it becomes practical and participatory. Formal
litigation often limits access for the marginalised. ADR platforms decentralise justice. They
remove procedural burdens. They empower those excluded from courtrooms-rural women,
uneducated parties, disabled persons, single parents. Equality through ADR is achieved not by
sameness, but by flexibility.152

Article 14 does not mean uniformity in method. It means fairness in outcome. ADR adopts
procedures that adjust to parties’ needs. Unlike courts, ADR does not insist on English language,
strict documentation, or court dress. In family disputes, where emotional trauma exists, this
accessible format levels the playing field. A deserted wife in a remote village can speak freely
before a mediator. She doesn’t need to prove herself through legal technicalities. ADR thus
operationalises the spirit of Article 14. It equalises parties through participation, not by forcing
formal equality.153

Courts have recognised this connection. In Sheela Barse v. State of Maharashtra, AIR 1983 SC
378, the Supreme Court held that legal aid and access to justice are integral to Article 14. ADR is
a form of legal aid. It’s fast, affordable, and human-centred. Family disputes resolved through
mediation or Lok Adalat preserve dignity and reduce power imbalance. Especially in matrimonial
cases, women often face financial and social vulnerability. ADR mechanisms provide a safe and
equal space to express grievances, demand support, and shape outcomes.154

Equality under Article 14 also means absence of arbitrariness in adjudication. In courts, delay and
formalism often undermine substantive justice. ADR ensures that parties get equal voice, equal

152
The Constitution of India, art. 14.
153
Marc Galanter, “Justice in Many Rooms” 19 J. Legal Pluralism 1 (1981).
154
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.

47
opportunity, and equal respect. No party can dominate because ADR facilitators ensure balance.
In Behram Khurshed Pesikaka v. State of Bombay, AIR 1955 SC 123, the Court ruled that equality
requires reasoned, non-arbitrary procedures. ADR embodies this principle. It structures fairness,
even in informality. In family negotiations, each party’s position is heard without bias. The final
outcome reflects compromise, not imposition.155

Family law involves status. It also involves emotions. Article 14 supports processes that protect
both legal and emotional interests. ADR mechanisms ensure equal emotional safety. Litigants in
domestic disputes are not always rational. Courtrooms demand rational pleadings. ADR gives
space to speak from emotion. It accepts vulnerability. In mediation, an estranged spouse can cry,
explain, retract, and renegotiate. This emotional space is part of equal justice. Litigation rarely
offers that. Equality is more than legal opportunity-it includes emotional voice.156

Equal access must also be meaningful. Procedural law may appear neutral, but in practice, it
favours the legally literate, financially stronger, and socially powerful. ADR dissolves this bias. In
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1, the Court observed that formal equality
is not enough-substantive equality is essential. ADR furthers substantive equality by tailoring the
process to each participant’s context. In family disputes, women facing domestic violence, or
elderly parents seeking maintenance, receive facilitator-supported expression. This is
constitutional equality in action.157

Equality also includes timely redress. A slow system denies justice. ADR platforms like mediation
centres and Lok Adalats dispose cases within days or weeks. This efficiency makes Article 14 real.
Justice delayed, especially in maintenance, custody, or divorce matters, burdens the vulnerable.
Section 125 CrPC applications often go undecided for years. Mediation reduces this delay. Parties
get fast, mutually beneficial outcomes. In Hussain v. Union of India, (2017) 5 SCC 702, the Court
held that delay in criminal trials violates Article 21. Similar logic applies to civil and family
disputes. ADR remedies this by accelerating justice, thus serving Article 14’s mandate.158

ADR also neutralises power imbalance. Courts, by nature, reflect institutional hierarchy. Judges,
lawyers, procedures-all are distant to common people. ADR deconstructs this hierarchy. In family

155
Behram Khurshed Pesikaka v. State of Bombay, AIR 1955 SC 123.
156
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
157
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
158
Hussain v. Union of India, (2017) 5 SCC 702.

48
disputes, especially involving women and children, neutrality must be active. The mediator ensures
that weaker parties are not overpowered. Article 14 demands this balance. In Shayara Bano v.
Union of India, (2017) 9 SCC 1, the Court struck down triple talaq as arbitrary. ADR systems must
likewise ensure that process and substance are not one-sided. Equality means equal presence. ADR
ensures that, even where parties differ in education, status, or confidence.159

3.1.2 Article 21 – Right to Life and Access to Justice

Article 21 declares that no person shall be deprived of life or personal liberty except according to
procedure established by law. This right is not limited to mere survival. It includes dignity,
freedom, fairness, and access to justice. The phrase “procedure established by law” was
reinterpreted in Maneka Gandhi v. Union of India, AIR 1978 SC 597 to mean fair, just, and
reasonable procedure. ADR mechanisms-mediation, conciliation, negotiation-meet this threshold.
They offer humane, less adversarial, and participatory alternatives to litigation. In family disputes,
where life and liberty are affected not only legally but emotionally, ADR becomes an embodiment
of Article 21.160

Access to justice is a fundamental aspect of Article 21. Justice is not merely a courtroom event. It
must be affordable, comprehensible, and timely. ADR provides that accessibility. Courts often
delay relief. Adjournments frustrate parties. Costs burden the poor. ADR breaks these barriers. In
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369, the Supreme Court held that delayed
justice violates Article 21. Family disputes-like maintenance, custody, domestic conflict-need fast
resolution. ADR gives that. Mediation resolves issues in weeks. Lok Adalats deliver relief in a
single session. Online Dispute Resolution (ODR) allows resolution from home. These mechanisms
fulfil Article 21’s promise.161

Justice must also be dignified. Courts can feel alien. Procedural formalism, intimidating cross-
examinations, strict evidence rules-they alienate emotionally vulnerable parties. ADR provides
psychological safety. It respects human emotion. In Francis Coralie Mullin v. Administrator, Union
Territory of Delhi, AIR 1981 SC 746, the Court held that dignity is intrinsic to life under Article
21. ADR preserves dignity by allowing parties to speak without fear, negotiate face-to-face, or

159
Shayara Bano v. Union of India, (2017) 9 SCC 1.
160
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
161
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

49
with a mediator’s help. In family disputes, especially where relationships are strained, this
environment reduces mental trauma and promotes healing.162

ADR also safeguards liberty. In matrimonial litigation, parties often remain stuck in proceedings
for years. Mutual consent divorce is delayed due to procedural hurdles. Custody battles trap parents
in repeated hearings. ADR unshackles them. Parties choose to mediate. They decide terms. They
exit disputes voluntarily. In Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991,
the Court emphasised that liberty includes access to legal support. ADR is a form of legal support-
low-cost, efficient, and participant-friendly. It ensures parties are not denied liberty due to systemic
procedural delays.163

The right to a fair hearing is part of Article 21. ADR ensures fairness through neutral facilitators.
Mediators and conciliators don’t impose. They assist. They ensure equal participation. Courts may
be formal and unequal-lawyers overpower, language confuses, judges dominate. ADR restores
balance. In A.K. Kraipak v. Union of India, AIR 1970 SC 150, the Court linked fairness with natural
justice. ADR practices-like separate caucusing, equal speaking time, informal evidence review-
promote such fairness. Especially in family matters, where power dynamics are unequal, ADR
platforms offer a level ground.164

Children’s rights fall within Article 21. In custody and guardianship disputes, children suffer
emotional injury. Courtrooms are not child-sensitive. Judges focus on legality. ADR allows child-
inclusive methods. Children are heard. Their needs shape solutions. In Gaurav Nagpal v. Sumedha
Nagpal, (2009) 1 SCC 42, the Court stated that the child’s best interest is paramount. ADR
operationalises this by allowing flexible parenting plans, co-custody agreements, and visitation
frameworks. Courts cannot do this easily. ADR makes the child’s life better-not just legally, but
socially and emotionally.165

The right to family life is implicit under Article 21. It includes the right to marry, cohabit, raise
children, and separate peacefully. Litigation strains these rights. ADR supports them. It helps
couples explore reconciliation. It allows spouses to separate with dignity. It enables parents to co-
parent post-divorce. In Shakti Vahini v. Union of India, (2018) 7 SCC 192, the Court recognised

162
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.
163
Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991.
164
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
165
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

50
individual autonomy in choosing life partners. ADR reinforces such autonomy. It honours personal
decisions. It helps families exit conflict without breaking completely.166

3.1.3 Article 39-A – Free Legal Aid

Article 39-A of the Constitution mandates the State to ensure that justice is not denied to any
citizen by reason of economic or other disabilities. It recognises legal aid as a constitutional
obligation. This provision bridges economic inequalities and ensures substantive access to justice.
ADR mechanisms-particularly Lok Adalats, mediation centres, and conciliatory forums-serve as
instruments to fulfil this constitutional vision. They reduce dependency on expensive and
complicated litigation. Family law disputes, often entangled with socio-economic vulnerabilities,
are especially addressed through this framework.167

ADR serves as a functional extension of legal aid. Parties who lack the means to afford legal
services are provided assistance through institutional ADR. National Legal Services Authority
(NALSA), State Legal Services Authorities (SLSAs), District Authorities, and Taluka Committees
organise free mediation camps and Lok Adalats across the country. These bodies not only promote
ADR but fund and facilitate participation of women, children, the elderly, persons with disabilities,
and economically weaker sections in family dispute resolution. Article 39-A thus finds practical
expression through institutional ADR.168

Family disputes often involve women in vulnerable positions-financially dependent spouses,

unrepresented mothers, widows fighting for inheritance, or elderly women abandoned by family.
Traditional litigation not only burdens them financially but delays essential relief like maintenance,
custody, or shelter. Lok Adalats and legal aid mediation centres ensure that such parties receive
quality legal representation, counselling, and structured support without charge. In Centre for
Legal Research v. State of Kerala, (2004) 2 SCC 65, the Supreme Court underlined that legal aid
must be “efficient, meaningful and real.” ADR makes that real by simplifying the process and
ensuring a sense of procedural equality.169

166
Shakti Vahini v. Union of India, (2018) 7 SCC 192.
167
The Constitution of India, art. 39-A.
168
National Legal Services Authority, “Legal Services Authorities Act, 1987 – Implementation Report 2022–23”
(NALSA, New Delhi, 2023).
169
Centre for Legal Research v. State of Kerala, (2004) 2 SCC 65.

51
Article 39-A not only includes providing advocates. It also includes providing accessible forums.
Mediation and conciliation forums-within family courts or through NGOs-are far less intimidating
than courts. They are sensitive to emotional and cultural contexts. Legal aid counsellors trained in
ADR processes assist parties to draft settlements, negotiate terms, and resolve disputes. This
environment helps in cases of maintenance under Section 125 CrPC, matrimonial disputes under
personal laws, and even partition of property among family members. Such forums also ensure
that unrepresented parties are not taken advantage of, preserving the integrity of the process.170

Free legal services through ADR reduce economic dependency on adversarial processes. Family
disputes that enter court usually prolong for years. Women spend on litigation, travel, and repeated
adjournments. ADR avoids these. In Khatri v. State of Bihar, AIR 1981 SC 928, the Court
recognised that economic incapacity should not become a barrier to accessing justice. The free
services offered under Article 39-A aligned with the functioning of ADR platforms reinforce this
constitutional promise. Lok Adalats settle disputes in a single sitting. Mediation sessions conclude
within weeks. This saves time and financial strain for families already in distress.171

Article 39-A also supports the idea that justice should be equal in substance, not just in form. It
obligates the State to dismantle practical barriers to justice-like distance, unfamiliarity with legal
language, lack of procedural knowledge. ADR formats reduce such barriers. Family disputes
resolved through community mediation, rural Lok Adalats, or NGO-led conciliations ensure that
people with little or no education participate effectively. In State of Haryana v. Darshana Devi,
AIR 1979 SC 855, the Court highlighted that the State has an affirmative duty to reach out with
justice to the disadvantaged. Article 39-A and ADR together achieve this duty.172

The Legal Services Authorities Act, 1987 was enacted to give effect to Article 39-A. It
institutionalised legal aid and provided statutory legitimacy to Lok Adalats. Section 19 of the Act
empowers legal services institutions to organise Lok Adalats. Section 22A defines permanent Lok
Adalats. These are not mere alternatives but formalised pathways for justice. The Act mandates
that the services provided shall be free of cost to eligible beneficiaries. Family matters are treated
as priority areas. Section 12 specifically identifies women and children as persons entitled to free

170
The Legal Services Authorities Act, 1987 (Act 39 of 1987), ss. 12, 19.
171
Khatri v. State of Bihar, AIR 1981 SC 928.
172
State of Haryana v. Darshana Devi, AIR 1979 SC 855.

52
legal services. ADR thus becomes a legalised method of implementing constitutional and statutory
directives simultaneously.173

3.2 STATUTORY FRAMEWORK

3.2.1 Arbitration and Conciliation Act, 1996

The Arbitration and Conciliation Act, 1996 consolidates the law relating to arbitration and
conciliation in India. It is based on the UNCITRAL Model Law. It governs both domestic and
international commercial arbitration. It also includes conciliation as a recognised method of
Alternative Dispute Resolution. The Act promotes party autonomy, minimal judicial interference,
and procedural flexibility. While the Act primarily applies to commercial disputes, certain
provisions concerning conciliation offer relevance for resolution of family disputes where issues
are civil in nature and not related to status.174

Part I of the Act deals with arbitration. Section 2(1)(a) defines arbitration to include any arbitration
whether or not administered by a permanent arbitral institution. Arbitration under this Act is
adversarial and ends in a binding award. However, family law disputes involving marriage,
divorce, adoption, legitimacy, or guardianship are considered matters of status and hence, are not
arbitrable. In Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532, the
Supreme Court clarified that disputes relating to rights in rem are non-arbitrable. But property
division, maintenance, or partition among family members may be resolved through arbitration if
parties agree.175

Section 7 defines an arbitration agreement as a written agreement to submit disputes to arbitration.

It must be clear, mutual, and specific. In family matters, arbitration agreements may be found in
family settlements or pre-divorce agreements, although courts have rarely enforced such clauses
strictly. Yet, where the subject matter is purely monetary or civil and not personal status, such
agreements are valid under the Act. Section 8 mandates courts to refer parties to arbitration if a
valid agreement exists and the dispute is arbitrable.176

173
The Legal Services Authorities Act, 1987 (Act 39 of 1987), ss. 19, 22A.
174
Arbitration and Conciliation Act, 1996 (Act 26 of 1996), Preamble.
175
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.
176
Arbitration and Conciliation Act, 1996 (Act 26 of 1996), ss. 7–8.

53
The arbitration procedure begins with the appointment of arbitrators under Section 11. Parties may
appoint one arbitrator each and a presiding arbitrator mutually. Failing agreement, courts step in.
Arbitrators are not bound by the CPC or the Evidence Act as per Section 19. This allows flexibility.
However, they must follow principles of natural justice-notice, opportunity to be heard, and
impartiality. In family financial disputes, such flexibility reduces delay, cost, and confrontational
proceedings. Still, due caution is needed when emotional or relational imbalances exist between
parties.177

Arbitral awards under Section 31 must be in writing, reasoned, and signed. They are binding and
final. Under Section 34, awards may be challenged for illegality, fraud, bias, or violation of public
policy. Courts have held that arbitral decisions must not contravene family law principles. In
ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705, the Court expanded the interpretation of “public
policy” to include legality and fairness. Thus, arbitral awards in family property disputes must be
sensitive to equity and statutory obligations.178

Part III of the Act deals with conciliation. Section 61 explicitly allows any dispute-contractual or
not-to be referred to conciliation, except where prohibited by law. Unlike arbitration, conciliation
is non-binding until a settlement is reached. It suits family disputes better. There is no adversarial
element. Conciliators assist parties to arrive at a mutually acceptable solution. This process
respects relationships and reduces hostility. Section 67 outlines the conciliator’s role-to act
impartially and promote agreement. They may suggest proposals, hold joint or separate meetings,
and help draft terms.179

Section 73 provides that once parties agree, a settlement agreement is drawn and signed. It has the
same legal status as an arbitral award under Section 30. This gives it the effect of a decree. In
Haresh Dayaram Thakur v. State of Maharashtra, (2000) 6 SCC 179, the Court upheld the
enforceability of settlement agreements reached through conciliation. Family disputes like
financial claims, division of ancestral property, or inheritance issues between siblings can be
effectively settled using this mechanism.180

177
Ibid., ss. 11, 19.
178
ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705.
179
Arbitration and Conciliation Act, 1996 (Act 26 of 1996), ss. 61, 67.
180
Haresh Dayaram Thakur v. State of Maharashtra, (2000) 6 SCC 179.

54
 3.2.2 Code of Civil Procedure, 1908 – Section 89 and Order X

Section 89 of the Code of Civil Procedure, 1908 lays the legislative foundation for court-referred
Alternative Dispute Resolution in India. It directs civil courts to explore settlement possibilities
outside traditional litigation. When the court perceives that there exists an element of settlement,
it shall refer the parties to any of the five modes-arbitration, conciliation, judicial settlement
including Lok Adalat, or mediation. The insertion of Section 89 through the CPC (Amendment)
Act, 1999 was a conscious step to institutionalise ADR within the formal judicial structure. Family
disputes, with their personal, emotional and relational complexities, benefit significantly when
resolved through court-referred ADR under this provision.181

Order X Rule 1A, 1B and 1C supplement Section 89. These provisions empower the court at the
first hearing to direct parties to opt for any suitable ADR method. The framework introduced by
Order X aims to make ADR a procedural norm and not an exception. Rule 1A empowers the court
to direct parties to alternative modes even without mutual consent, provided the court finds it
appropriate. This reflects judicial acknowledgment of the healing potential of ADR in emotionally
charged disputes such as maintenance petitions, matrimonial separation, custody battles and
inheritance feuds.182

The interpretation of Section 89 was clarified in Afcons Infrastructure Ltd. v. Cherian Varkey
Construction Co. (P) Ltd., (2010) 8 SCC 24. The Supreme Court held that referral under Section
89 is mandatory when the court believes that a settlement is possible. The Court explained that
Section 89 must be read pragmatically to promote resolution. It excluded arbitration unless both
parties agree but favoured mediation, conciliation and Lok Adalat as accessible and effective.
Family disputes involving women, children, or elderly often fall into this preferred category,
making Section 89 highly relevant in such matters.183

Section 89 does not operate in isolation. It builds a procedural bridge between adversarial litigation
and consensual justice. The section ensures that when disputes are interpersonal and involve
continuing relationships-as in family law-they are not immediately subjected to the rigours of a
trial. Instead, it mandates a softer path of resolution. In Salem Advocate Bar Association v. Union

181
Code of Civil Procedure, 1908 (Act 5 of 1908), s. 89.
182
Ibid., Order X, Rules 1A–1C.
183
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.

55
of India, (2005) 6 SCC 344, the Court upheld the constitutional validity of Section 89 and called
for institutional ADR mechanisms to be developed in all courts. The judgment also emphasised
judicial training in ADR to make referrals meaningful.184

In practice, the referral under Section 89 happens after the court has framed issues or conducted
preliminary hearing. Family courts routinely invoke Section 89 to refer matrimonial cases to in-
house mediation centres. The process is time-bound. Mediation under court supervision is
expected to be completed within sixty days, extendable by the court. This procedural limit benefits
litigants in family disputes who otherwise suffer from prolonged litigation. Women seeking
alimony, single mothers fighting custody, or elderly parents seeking maintenance benefit from this
swift recourse.185

Order X enhances judicial discretion. Rule 1B empowers the judge to direct the parties to appear
before such forum as deemed suitable. It avoids the need for written applications or formal requests
by parties. In emotionally volatile family disputes, litigants may not even know of ADR. Judicial
initiation under Rule 1B brings such parties into a calmer process. Rule 1C then ensures that the
result of ADR is reported back, and if no settlement is reached, the matter proceeds to trial. This
structure keeps litigation as the fallback, not the default.186

Section 89 also aligns with the constitutional promise of access to justice. It reflects Article 14’s
guarantee of equality before law and Article 21’s guarantee of a fair, just and reasonable procedure.
By mandating ADR exploration before adjudication, it prevents unnecessary adversarial harm. In
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Court advised that before initiating divorce
litigation on grounds of cruelty, parties must be sent to mediation. Section 89 provides the statutory
base for such directions. The goal is not just settlement, but civilised disengagement where
reconciliation is not possible.187

3.2.3 Legal Services Authorities Act, 1987

The Legal Services Authorities Act, 1987 was enacted to give statutory effect to Article 39-A of
the Constitution. The objective is to provide free and competent legal services to the weaker

184
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
185
Ministry of Law and Justice, “Justice Delivery and ADR in India: Status and Reforms” (2020).
186
Code of Civil Procedure, 1908 (Act 5 of 1908), Order X, Rule 1B.
187
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

56
sections of society and to ensure that justice is not denied to any person due to economic or social
disability. This Act institutionalised the framework of Lok Adalats and established the National
Legal Services Authority (NALSA), State Legal Services Authorities (SLSAs), District Authorities
and Taluk-level Committees. These bodies promote and implement ADR mechanisms, especially
for cases involving family, matrimonial, custody and maintenance disputes where early and
amicable resolution is necessary for social harmony and dignity of parties.188

Section 19 empowers every State Legal Services Authority and District Authority to organise Lok
Adalats at regular intervals. These forums function as non-adjudicatory, people-friendly platforms
for dispute resolution through compromise. The presiding panel includes judicial officers and
social workers. Family disputes-mutual consent divorce, maintenance arrangements, guardianship
matters-are frequently referred to these Lok Adalats. They operate without strict procedural or
evidentiary rules, and settlements are recorded as binding awards under Section 21. These awards
are final, enforceable as decrees of a civil court, and cannot be appealed. This ensures quick closure
without further litigation.189

Section 20 mandates that any case pending before a court or pre-litigation matter can be referred
to a Lok Adalat if there is a possibility of settlement. Referral is not only judicially driven but may
also be initiated by the parties or Legal Services Authorities. Family disputes, especially those
involving maintenance, alimony, marital property or custody, are ideal for pre-litigation resolution.
The non-adversarial environment of Lok Adalats ensures that parties do not suffer psychological
or financial strain. This aligns with the core principle of the Act-that justice must be humane,
restorative and accessible.190

Section 22B introduces Permanent Lok Adalats (PLAs) for public utility services. While PLAs do
not handle matrimonial matters directly, their structural model has inspired the development of
institutionalised family dispute resolution forums in various states. These centres adopt the spirit
of PLAs-focus on conciliation, avoid legal jargon, encourage self-determined outcomes, and
maintain continuity in proceedings. Their success has led to hybrid models where trained

188
Legal Services Authorities Act, 1987 (Act 39 of 1987), Preamble.
189
Ibid., s. 19, 21.
190
Ibid., s. 20.

57
conciliators from Legal Services Authorities assist in family court cases using ADR techniques
under the guidance of the 1987 Act.191

Section 12 provides that women, children, SCs, STs, disabled persons, and victims of trafficking
or disaster are entitled to free legal services. Most family dispute litigants fall within these
categories. In Centre for Legal Research v. State of Kerala, (2004) 2 SCC 65, the Court stressed
that access to legal services must be meaningful and inclusive. Legal Services Authorities ensure
this by offering free mediation, counselling, legal advice, and representation. In cases of domestic
violence, abandonment, or child custody, trained para-legal volunteers and empanelled mediators
ensure procedural fairness and emotional safety.192

Legal aid clinics established under this Act extend support to women in rural and semi-urban areas.
These clinics operate in collaboration with law colleges, NGOs, and women’s organisations. They
offer on-site legal counselling, awareness about rights, and initiate pre-litigation mediation. In
family disputes, this helps reduce the dependency on court-based redress. The presence of
community-based legal aid enhances trust, accessibility, and participation. Disputants are more
open to settlement when guided by culturally sensitive and locally trusted individuals trained under
the Act’s mandate.193

National Lok Adalat is one of the most impactful initiatives under this Act. Organised quarterly
across the country, these events see thousands of matrimonial disputes resolved in a single day.
Special benches are constituted. Mediators and conciliators are appointed in advance. Parties are
contacted ahead of time and encouraged to settle. The cost is nil. The environment is cordial. The
outcome is legally valid. In S.D. Joshi v. High Court of Bombay, (2011) 1 SCC 252, the Court
acknowledged the effectiveness of Lok Adalats in reducing arrears and delivering accessible
justice, especially in personal disputes.194

The Act also promotes Mediation Centres within court premises. Though not specifically
mentioned in the statute, these centres operate under the aegis of Legal Services Authorities.
Family disputes are routinely referred here under Section 9 of the Family Courts Act and Section
89 of the CPC. The mediators are trained under the curriculum set by the Mediation and

191
Ibid., s. 22B.
192
Centre for Legal Research v. State of Kerala, (2004) 2 SCC 65.
193
NALSA, “Legal Aid Clinics Guidelines,” (2020).
194
S.D. Joshi v. High Court of Bombay, (2011) 1 SCC 252.

58
Conciliation Project Committee (MCPC) of the Supreme Court. These services are free. The
process is confidential. If successful, the settlement is recorded under Order XXIII Rule 3 CPC. If
not, the case returns to trial without prejudice.195

3.2.4 Family Courts Act, 1984

The Family Courts Act, 1984 was enacted to promote conciliation and secure speedy settlement of
family disputes. It recognises that family matters need a different approach. Not purely legal. More
humane. More sensitive. The Act aims to resolve matrimonial, custody, and maintenance issues in
a non-adversarial environment. It institutionalises Alternative Dispute Resolution within the
formal justice system. It introduces counselling and mediation at the core of the family justice
process. The emphasis is on restoration, not just rights enforcement.

Section 9 of the Act is the cornerstone for ADR. It mandates that family courts must make efforts
for settlement before adjudicating. The language is not optional. The court “shall” endeavour. This
provision puts ADR at the centre, not the margins. Every matrimonial dispute, custody conflict or
maintenance case must first be filtered through conciliation. It promotes peaceful resolution,
minimises emotional trauma, and saves time and cost. In K. Srinivas Rao v. D.A. Deepa, (2013) 5
SCC 226, the Supreme Court reiterated that every attempt must be made to resolve matrimonial
disputes amicably before trial begins.196

Section 10 further empowers family courts to lay aside technical rules of procedure. They are not
bound by the Code of Civil Procedure but must be guided by principles of natural justice. This
flexibility helps in tailoring the process to the emotional needs of the parties. ADR techniques such
as shuttle mediation, collaborative negotiation, and in-camera counselling are often used under
this framework. Women who fear stigma or retaliation can speak freely. Fathers struggling for
visitation rights can explain without legal posturing. The process is participatory, not
adversarial.197

Section 6 provides for the appointment of counsellors. These are not lawyers or judges. They are
professionals trained in psychology, social work or behavioural science. They engage parties

195
Code of Civil Procedure, 1908 (Act 5 of 1908), Order XXIII Rule 3; Family Courts Act, 1984 (Act 66 of 1984),
s. 9.
196
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
197
Family Courts Act, 1984 (Act 66 of 1984), s. 10.

59
before the matter goes to the judge. Their role is therapeutic. Not legalistic. They encourage
dialogue. Mediate tensions. Help parties reframe the dispute. In many cases, disputes dissolve once
emotions settle. In Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150, the Court
acknowledged the value of pre-litigation counselling in diffusing family tension. Counsellors
under Section 6 are the real first responders in family ADR.198

Family Courts under the Act have exclusive jurisdiction. Section 7 enumerates the matters they
handle-divorce, nullity, restitution, maintenance, custody, guardianship, and property disputes
arising out of marriage. All these are suitable for ADR. The relational context demands solutions
that law alone cannot offer. Mediation helps restructure relationships. Negotiation creates long-
term parenting plans. Conciliation builds trust. Courtroom trials fracture it. The Family Courts Act
ensures that every such dispute is heard in a forum designed to heal, not hurt.199

Section 11 mandates that proceedings in family courts shall be held in camera. This is essential for
meaningful ADR. Confidentiality gives parties emotional safety. Women can narrate abuse without
public exposure. Men can speak without fear of societal ridicule. Children’s issues can be
discussed without trauma. Mediation thrives in such privacy. Unlike civil litigation, family ADR
under this Act allows space for candour, apology, forgiveness. These are not legal outcomes. But
they are often the real resolutions.200

The Act allows family courts to evolve their own procedures. This administrative freedom supports
creative use of ADR. Some courts have embedded mediation centres within court complexes.
Others have dedicated sessions for conciliation. Some use digital mediation. Others use
community-based paralegal volunteers to facilitate early settlements. In Shaleen Kabra v. Shiwani
Kabra, 2012 SCC OnLine Del 4675, the Delhi High Court appreciated the family court’s initiative
in exploring innovative ADR steps. The Act provides the legal framework. Courts are filling it
with functional creativity.201

Under Section 8, family courts are manned by judges specially trained in family law and sensitive
issues. Many are chosen from the bar with experience in family litigation. Their orientation is
different from civil judges. They are taught to listen more, impose less. This human-centric

198
Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150.
199
Family Courts Act, 1984 (Act 66 of 1984), s. 7.
200
Ibid., s. 11.
201
Shaleen Kabra v. Shiwani Kabra, 2012 SCC OnLine Del 4675.

60
approach makes ADR in family courts effective. Judges are facilitators of dialogue, not just arbiters
of law. They nudge parties towards mutual understanding. Even when adjudicating, their
judgments are more balanced, more restorative.202

The synergy between the Family Courts Act and Section 89 CPC is significant. When a
matrimonial case is filed, the family court refers it to counselling under Section 9. If no settlement
is reached, the matter can be referred to mediation under Section 89 CPC. This two-tiered ADR
filter ensures that litigation is the last resort. In Afcons Infrastructure Ltd. v. Cherian Varkey
Construction Co. (P) Ltd., (2010) 8 SCC 24, the Court observed that family disputes are pre-
eminently suited for mediation and conciliation. The Family Courts Act makes this possibility a
mandate.203

3.2.5 Mediation Act, 2023

The Mediation Bill, 2021 was introduced to institutionalise mediation as a mainstream dispute
resolution mechanism. It aims to create a unified legal framework for mediation, both domestic
and international. It seeks to make pre-litigation mediation mandatory before parties approach
courts. The Bill promotes voluntary, party-centric, and time-bound resolution. Family law disputes
are included under its broad scope. The Bill, in its latest form, now known as the Mediation Act,
2023 after enactment, provides a robust statutory framework that elevates mediation from practice
to enforceable law.

Clause 6 mandates pre-litigation mediation in all civil and commercial disputes, including family
matters, unless exempted. This changes the approach from court-first to dialogue-first. In family
disputes, this allows estranged spouses, parents, and children to try resolution without entering
litigation. It protects relationships. It saves time. It reduces emotional distress. The Act also ensures
that parties have the option to opt out if mediation fails within 180 days, with a possible extension
of 60 days.204

Clause 8 recognises the validity and enforceability of mediated settlement agreements. Once
signed and authenticated, such agreements are treated as final and binding, and enforceable like a
court decree under the Civil Procedure Code. This gives legal sanctity to private resolutions. For

202
Family Courts Act, 1984 (Act 66 of 1984), s. 8.
203
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
204
Mediation Act, 2023 (Act 26 of 2023), s. 6.

61
family disputes involving alimony, custody arrangements or property distribution, such
recognition ensures security, compliance, and enforceability without prolonged litigation.205

Clause 22 reinforces the confidentiality of mediation. Communications, proposals, admissions,

and views expressed during mediation cannot be disclosed or used as evidence in any court. This
is crucial in family disputes where parties reveal intimate personal details, financial disclosures,
and emotions. The Act preserves this confidentiality. It builds trust. It allows honest negotiation.
Without fear of prejudice. Without courtroom repercussions.206

Clause 26 provides for the creation of the Mediation Council of India (MCI). This regulatory body
oversees mediator accreditation, mediation training, code of conduct, and service provider
institutions. In family matters, only trained and empanelled mediators may now handle cases. This
enhances professionalism. Ensures ethical practice. Reduces bias and procedural lapses. The MCI
can frame guidelines for trauma-sensitive mediation in domestic disputes involving violence, child
custody, and intergenerational conflict.207

Clause 32 clarifies that matters involving criminal offences, minors, or non-compoundable

offences are non-mediatorable. However, family disputes relating to marriage, maintenance,
property, or guardianship fall within the permissible scope. This classification is essential. It
preserves the sanctity of mediation while preventing its misuse in matters requiring state
intervention. For example, domestic violence complaints under the Protection of Women from
Domestic Violence Act, 2005 may not be subject to mediation, but parallel civil matters arising
from marriage can be settled through this route.208

The Act also permits community mediation under Clause 43. Three trained mediators may resolve
disputes affecting peace and harmony in a locality. In rural or semi-urban areas, family disputes
often spill into community unrest. Property conflicts among relatives. Inter-caste marriages.
Disputes over support of elderly parents. Community mediation allows resolution within a cultural
and familiar context. It prevents escalation. It saves the family’s social fabric. It makes justice
decentralised and participatory.209

205
Ibid., s. 8.
206
Ibid., s. 22.
207
Ibid., s. 26.
208
Ibid., s. 32.
209
Ibid., s. 43.

62
Mediation under the Act is voluntary. Parties cannot be forced into settlement. Clause 21
safeguards the autonomy of participants. The process may be facilitated, but not imposed. In family
disputes, this matters more. Reconciliation cannot be coerced. Agreement must be mutual. The
mediator is not a judge. They guide. Not decide. The Mediation Act protects this consensual
foundation. It also enables party-selected mediators, which builds comfort and cultural sensitivity
into the process.210

Clause 12 of the Act encourages courts and tribunals to refer ongoing disputes to mediation if
settlement is possible. Judges may assess the nature of the family dispute and divert it to mediation
at any stage. This judicial encouragement reflects the shift in jurisprudence toward resolution over
adjudication. In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8
SCC 24, the Court had already favoured mediation in family disputes. The Mediation Act makes
this a binding directive, not just judicial wisdom.211

Clause 20 ensures that mediated settlement agreements are challengeable only on limited grounds-
fraud, impersonation, or coercion. This narrows unnecessary litigation over agreements. It also
enhances the credibility of mediation in family law. Once parties settle a custody plan or
maintenance amount, they cannot undo it easily. This discourages post-settlement litigation and
protects the interests of children and dependent spouses.212

3.3 JUDICIAL DECISIONS ENCOURAGING ADR

3.3.1 Precedents on Mediation Referral

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24, the
Supreme Court clarified the scope of Section 89 of the Code of Civil Procedure. The Court held
that mediation and conciliation are appropriate for a broad category of civil disputes, especially
family-related ones. It distinguished between arbitrable and non-arbitrable disputes and
emphasised that matrimonial, maintenance, and custody cases are best resolved through mediation.
The Court made it mandatory for trial courts to explore mediation where possible and framed
guidelines to institutionalise the referral process.213

210
Ibid., s. 21.
211
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
212
Mediation Act, 2023 (Act 26 of 2023), s. 20.
213
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.

63
In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court observed that matrimonial
disputes arising out of cruelty, desertion, or irretrievable breakdown of marriage must first be
referred to mediation. The Court stressed that prolonged litigation only increases hostility and
psychological trauma. It directed family courts to facilitate amicable settlements through
counselling and mediation before taking up the matter for adjudication. The judgment reinforced
that mediation is not a formality-it is a vital procedural safeguard in personal disputes.214

In Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, the Supreme Court upheld
the constitutional validity of Section 89 CPC and underlined the role of the judiciary in promoting
ADR. The Court constituted a committee to frame model mediation rules and directed state
governments to establish mediation centres in every court complex. It recognised mediation not as
an alternative, but as a complementary method to achieve substantive justice. The judgment
encouraged judicial officers to proactively refer family disputes to mediation for early and
empathetic resolution.215

In B.S. Krishnamurthy v. B.S. Nagaraj, (2010) 11 SCC 491, the Supreme Court referred a matter
of matrimonial discord for mediation and noted that issues like child custody, visitation, and
maintenance often get entangled with ego and emotion. The Court advised that trained mediators
could de-escalate the conflict and create space for civilised dialogue. It reinforced that family
courts must not treat mediation as perfunctory but as a transformative phase in dispute
resolution.216

In Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150, the issue of transfer petitions in
matrimonial matters was discussed. The Court directed that instead of transferring cases from one
jurisdiction to another, courts should refer such matters to video-conferencing-based mediation.
The judgment highlighted that geographical distance should not impede access to mediation. It
laid the foundation for virtual mediation in family law and expanded judicial commitment to
making mediation accessible and technology-enabled.217

In Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd., (2016) 10
SCC 458, though a commercial matter, the Court reiterated the binding nature of mediated

214
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
215
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
216
B.S. Krishnamurthy v. B.S. Nagaraj, (2010) 11 SCC 491.
217
Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150.

64
settlement agreements and stressed judicial deference to ADR outcomes. The principles derived
are relevant for family law as well. Settlements reached through court-annexed mediation should
be respected and enforced unless vitiated by fraud or coercion. It strengthened the legal sanctity of
mediation outcomes, reassuring parties that compromise does not compromise enforceability.218

In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Court dealt with child custody and
visitation. Though the decision was adjudicatory, the Court observed that such disputes are
inherently suited for negotiated resolution. It emphasised the welfare of the child as paramount
and observed that mediation enables parents to design parenting plans with mutual understanding,
instead of adversarial imposition. The case served as judicial endorsement of child-focused
mediation in custody disputes.219

In Haresh Dayaram Thakur v. State of Maharashtra, (2000) 6 SCC 179, the Supreme Court held
that conciliation and mediation must be encouraged in all disputes involving social and personal
relationships. The Court noted that family courts, with their unique structure and role, must provide
space for parties to reconcile and avoid rigid proceduralism. The case promoted ADR as not merely
efficient, but as restorative and human-centred.220

3.3.2 Interpretation of Section 89 CPC

Section 89 of the Code of Civil Procedure, 1908 was inserted by the CPC (Amendment) Act, 1999
to institutionalise ADR mechanisms within the court system. It reflects a legislative mandate for
courts to refer disputes for settlement through arbitration, conciliation, judicial settlement
including Lok Adalat, or mediation. The section is seen as a bridge provision, allowing courts to
divert disputes towards consensual resolution where feasible. Courts have repeatedly interpreted
this section not merely as procedural, but as essential for achieving substantive justice in cases like
family disputes, where adversarial litigation often causes irreparable emotional and social harm.

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24, the
Supreme Court delivered a landmark judgment clarifying the scope and purpose of Section 89.
The Court observed that the intention behind Section 89 is not merely to reduce pendency but to
promote a culture of collaborative resolution. It distinguished between matters that can be referred

218
Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458.
219
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
220
Haresh Dayaram Thakur v. State of Maharashtra, (2000) 6 SCC 179.

65
to arbitration or conciliation, governed by the Arbitration and Conciliation Act, 1996, and those fit
for mediation or Lok Adalats. It laid down categories of disputes suitable for each method.
Matrimonial and family disputes were identified as most suitable for mediation and conciliation.
The judgment resolved earlier confusion about whether court referral is discretionary or mandatory
and whether Section 89 was workable despite its drafting defects.221

In Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, the Supreme Court upheld
the constitutional validity of Section 89 and clarified that the provision was not contradictory or
unimplementable. The Court noted that proper rules and guidelines would make Section 89 fully
effective. It constituted a committee to draft model mediation rules, which later led to the
formulation of Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003. These
rules now govern how courts refer disputes to ADR mechanisms. The judgment was instrumental
in removing the procedural uncertainty surrounding Section 89, thereby strengthening its
operational utility in matrimonial disputes where flexibility is key.222

In Jagannath Patnaik v. State of Orissa, (2007) 2 SCC 97, the Court observed that the purpose of
Section 89 is to provide parties with a choice of resolving their disputes outside formal courtrooms.
It held that courts must identify the nature of the dispute and refer cases accordingly. It also
highlighted that mediation and conciliation are not bound by procedural rigidity and are better
suited for disputes involving personal relationships, including family issues. Section 89 allows
judges to act as facilitators of settlement, not mere adjudicators.223

The Delhi High Court in Rajiv Bhatia v. Govt. of NCT of Delhi, 2011 SCC OnLine Del 4975, held
that Section 89 imposes a duty upon the court to make an attempt at settlement through ADR
methods where the facts disclose scope for resolution. The court observed that in family matters,
the first instinct of the court should be to try and restore peace between the parties. Section 89 CPC
is not a mere procedural provision but a substantive step towards therapeutic jurisprudence. It
allows the court to act in the best interests of the family unit, especially where children are
involved.224

221
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
222
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
223
Jagannath Patnaik v. State of Orissa, (2007) 2 SCC 97.
224
Rajiv Bhatia v. Govt. of NCT of Delhi, 2011 SCC OnLine Del 4975.

66
The decision in K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, reaffirmed the interpretation
that Section 89 must be interpreted in a purposive and liberal manner. The Supreme Court directed
that family courts must mandatorily refer parties to mediation or counselling at the earliest
opportunity. The Court emphasised that even where cruelty or irretrievable breakdown is alleged,
parties should be offered the chance to reconcile or settle terms peacefully. This aligns with Section
89’s mandate of early intervention and collaborative dispute management.225

The Madras High Court in G. Suguna v. Chief Engineer, AIR 2019 Mad 21, provided further
clarification on Section 89’s interpretation. The Court observed that the objective of Section 89 is
to shift the focus from rights-based adversarial resolution to interest-based negotiated settlement.
The provision empowers the judge to assess suitability for ADR during the pre-trial stage. In family
law cases, this early shift in trajectory prevents escalation, safeguards children’s welfare, and
restores relationships. The Court held that the judge’s satisfaction on the possibility of settlement
is sufficient ground for referral under Section 89.226

3.4 INSTITUTIONAL MECHANISMS FOR ADR IN INDIA

3.4.1 Court-annexed Mediation Centres

Court-annexed mediation centres emerged from judicial recognition that traditional litigation often
fails to resolve the deeper emotional issues in civil and family disputes. These centres operate
within court complexes but offer a space free from adversarial pressures. They institutionalise
mediation as an integral part of the justice system, especially for matrimonial, custody,
maintenance and property disputes within families. They were first formalised after the Supreme
Court’s directions in Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, which
led to the formulation of the Model Mediation Rules, 2003.227

Every High Court has established mediation centres in its jurisdiction. District and subordinate
courts are connected through mediation cells. In family matters, referrals to these centres are often
made at the pre-trial stage. Section 89 of the Code of Civil Procedure, 1908, read with Order X,
provides the legal basis for such referrals. Once the court sees scope for settlement, it directs parties

225
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
226
G. Suguna v. Chief Engineer, AIR 2019 Mad 21.
227
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

67
to mediation. The Mediation Centre facilitates this without disrupting judicial timelines. The
mediation process runs parallel, not subordinate, to court proceedings.228

Mediation centres follow principles of voluntariness, neutrality, confidentiality and informed

decision-making. The mediators are trained professionals-often retired judges, advocates or
accredited social workers. In family disputes, the role of the mediator goes beyond legal
technicalities. They listen. They empathise. They manage power imbalance. They make the room
safe for dialogue. The mediation centre ensures that every session respects dignity and fairness,
especially where women or children are involved.229

The Delhi High Court Mediation and Conciliation Centre (Samadhan) is a leading model. It has
resolved thousands of matrimonial disputes through structured mediation. It provides private
rooms, trained mediators, and a panel of experts for psychological counselling and legal guidance.
Similar centres exist under the aegis of Madras, Bombay, and Karnataka High Courts. These
centres not only facilitate resolution but record settlements under Order XXIII Rule 3 of CPC,
which are then made court decrees.230

The Supreme Court’s Mediation and Conciliation Project Committee (MCPC), established in
2005, supervises the functioning and growth of these centres. It designs training modules,
maintains a national database of mediators, and monitors referral statistics. The MCPC has
recognised that mediation centres in family courts reduce pendency, restore relationships and
prevent emotional damage. Their statistics show high success rates-especially in mutual divorce,
alimony, and visitation matters. The MCPC’s training programmes incorporate role plays, trauma-
sensitive communication, and gender equity approaches for family mediators.231

Court-annexed mediation centres operate under court rules framed by the respective High Courts.
For example, the Delhi High Court Mediation Rules, 2004 and the Bombay High Court
(Mediation) Rules, 2006 regulate the process. These rules provide for fixed timelines, party
obligations, mediator neutrality, and enforceability of settlements. In family matters, the rules
ensure that mediators with experience in handling sensitive issues are appointed. There is

228
Code of Civil Procedure, 1908 (Act 5 of 1908), s. 89, Order X.
229
Mediation and Conciliation Project Committee, Supreme Court of India, “Mediation Training Manual” (2022).
230
Delhi High Court Mediation and Conciliation Centre (Samadhan), Annual Report 2021–22.
231
MCPC, “Performance Evaluation of Mediation Centres” (2022), available at: https://main.sci.gov.in.

68
flexibility to allow separate sessions (caucusing) and joint negotiations, depending on the
emotional context of the dispute.232

The confidentiality of proceedings in mediation centres is protected. Statements made cannot be

used in court if mediation fails. This gives parties freedom to speak. To explore options. To test
solutions without risk. Especially in family matters involving accusations, mistrust, or breakdown
of communication, this safe environment fosters genuine efforts. Mediators record only the
outcome, not the conversation. This strengthens the integrity of the process and aligns with
international mediation norms under UNCITRAL Model Law.233

The Mediation Act, 2023 now provides statutory recognition to these court-annexed centres.
Clause 10 and Clause 12 of the Act empower courts to refer disputes to registered mediation
service providers. Clause 26 mandates the Mediation Council of India (MCI) to certify and regulate
mediation centres and mediators. This framework brings uniformity, quality control and
accountability to court-annexed mediation. Family matters are not just referred, but systematically
supported through institutional backing. The Act integrates previous judicial and procedural
frameworks under one coherent legal architecture.234

3.4.2 Arbitration Institutions

Arbitration institutions in India operate as structured forums to administer arbitration proceedings

in a time-bound, professional, and efficient manner. These institutions provide procedural rules,
rosters of arbitrators, and hearing infrastructure. They promote party autonomy and reduce
dependence on traditional courts. Institutional arbitration has become a preferred model, especially
after the 2019 amendment to the Arbitration and Conciliation Act, 1996, which formally
recognised arbitration institutions and granted courts the power to delegate the appointment of
arbitrators to designated arbitral institutions under Section 11(6A).235

In family law, however, arbitration’s role remains limited. Courts in Booz Allen and Hamilton Inc.
v. SBI Home Finance Ltd., (2011) 5 SCC 532 clarified that matrimonial matters, custody,
guardianship, and other issues involving status are non-arbitrable. However, disputes arising out

232
Delhi High Court Mediation Rules, 2004; Bombay High Court (Mediation) Rules, 2006.
233
UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements, 2018.
234
Mediation Act, 2023 (Act 26 of 2023), ss. 10, 12, 26.
235
Arbitration and Conciliation (Amendment) Act, 2019 (Act 33 of 2019), s. 11(6A).

69
of family settlements, joint property division, or financial claims among family members can still
be submitted to arbitration, provided they do not involve rights in rem.236

The Indian Council of Arbitration (ICA), established by the Federation of Indian Chambers of
Commerce and Industry (FICCI), administers domestic and international arbitration. Though
predominantly commercial, it has administered family-related property disputes where parties
agree to refer such matters voluntarily. The ICA provides a panel of arbitrators, procedural
supervision, and enforcement support. While it is not commonly approached for matrimonial
matters, it can be relevant in inheritance or partition cases between siblings or extended families.237

The Mumbai Centre for International Arbitration (MCIA) and the International Arbitration and
Mediation Centre (IAMC), Hyderabad, are two high-standard arbitration institutions in India.
Their model rules allow parties to choose the seat, venue, language, and procedure of arbitration.
These institutions have started offering hybrid mechanisms, such as med-arb or arb-med-arb,
where parties begin with mediation and shift to arbitration if it fails. For family businesses,
succession disputes or co-ownership arrangements, such mechanisms are useful. Arbitration
institutions thus provide procedural clarity and enforceability in family-linked civil disputes not
touching personal status.238

The Delhi International Arbitration Centre (DIAC), functioning under the aegis of the Delhi High
Court, facilitates institutional arbitration under its rules framed in 2018. While DIAC does not
directly administer matrimonial arbitration, it is equipped to deal with civil disputes arising
between family members such as partnership dissolution, trust asset disputes, or financial liabilities
that arise post-separation. Its bench of legal experts and trained arbitrators ensures neutrality,
speed, and procedural discipline. Arbitrators selected through DIAC are subject to a code of
conduct and transparency norms, critical for family-related disputes with emotional and economic
entanglements.239

Arbitration institutions in India operate with institutional rules akin to international bodies like the
ICC, SIAC, or LCIA. These rules ensure impartiality in appointments, prevent delays, and reduce
procedural ambiguity. In cases involving high net-worth families or NRI disputes, institutional

236
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.
237
Indian Council of Arbitration, “ICA Rules of Domestic Arbitration,” available at: https://www.icaindia.co.in.
238
Mumbai Centre for International Arbitration, “MCIA Arbitration Rules 2016,” https://mcia.org.in.
239
Delhi International Arbitration Centre (DIAC) Rules, 2018.

70
arbitration is preferred due to cross-border enforceability under the New York Convention. Family-
owned businesses split between India and abroad may refer commercial aspects of their disputes
to institutions governed by UNCITRAL-based rules, while leaving the personal law issues to
courts or mediation.240

3.4.3 Lok Adalats and Permanent Lok Adalats

Lok Adalats are statutory forums created under the Legal Services Authorities Act, 1987 to
promote dispute resolution through compromise and conciliation. They operate at the national,
state, district and taluk levels. They aim at delivering justice that is speedy, informal and cost-
effective. Family disputes involving maintenance, property division, custody, divorce by mutual
consent and restitution are regularly taken up and resolved in Lok Adalats. These platforms uphold
dignity, protect relationships and reduce emotional stress.

Section 19 of the Legal Services Authorities Act authorises the State Legal Services Authorities
and District Legal Services Authorities to organise Lok Adalats. These can be organised for
pending cases as well as pre-litigation matters. In family law, most parties suffer due to long delays
in court, financial strain, or lack of awareness. Lok Adalats provide an accessible avenue.
Proceedings are free of cost. No court fee is charged. If a case pending before a regular court is
resolved in a Lok Adalat, the court fee paid is refunded. This encourages participation from
economically weaker sections.241

Section 20 of the Act empowers courts to refer any pending case to a Lok Adalat if there is an
element of settlement. Family judges often exercise this power where they see hope for
compromise. The nature of family disputes-emotional, relational, social-makes them highly
suitable for settlement-based forums. Once both parties consent, the case is referred. The
settlement is facilitated by judicial officers and trained conciliators who act jointly. They guide
parties, identify issues, suggest compromise and record voluntary settlements.242

Awards passed by Lok Adalats under Section 21 are deemed to be decrees of civil courts. They are
final and binding. No appeal lies against them. This legal enforceability gives weight to the

240
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York
Convention).
241
Legal Services Authorities Act, 1987 (Act 39 of 1987), s. 19.
242
Ibid., s. 20.

71
settlement. In State of Punjab v. Jalour Singh, (2008) 2 SCC 660, the Supreme Court held that
once parties enter into a voluntary settlement before a Lok Adalat, courts cannot reopen the matter.
The judgment validated the authority and sanctity of Lok Adalats in administering justice through
mutual resolution.243

Permanent Lok Adalats (PLAs) were introduced through an amendment in 2002. Section 22B of
the Act provides for their establishment to deal with disputes related to public utility services such
as transport, electricity, communication, postal services, etc. Though PLAs are restricted to such
services, their structure and functioning have inspired a more permanent dispute resolution
mechanism in some family courts. Some states have used the concept of PLAs to develop family
dispute resolution cells that adopt similar procedures-pre-litigation processing, conciliatory
method, time-bound decision-making.

PLAs differ from regular Lok Adalats. If the parties fail to settle, PLAs have the power to
adjudicate the dispute on merits. This feature gives PLAs a quasi-judicial character. In InterGlobe
Aviation Ltd. v. N. Satchidanand, (2011) 7 SCC 463, the Court clarified that PLAs are empowered
to decide the dispute even without consent, if settlement fails. While family disputes may not
directly fall under PLAs due to subject-matter restrictions, the procedural flexibility and summary
nature of PLAs offers a viable model for family dispute resolution.244

Family disputes often involve unequal bargaining power. Women may be economically or socially
disadvantaged. Lok Adalats ensure that settlement happens voluntarily. If a party alleges coercion
or undue influence, the award can be challenged through a writ or review. Legal Services
Authorities ensure that trained counsellors and women conciliators are present in sensitive cases.
Proceedings are informal. Hearings are conducted in local language. This inclusiveness ensures
access to justice. In Centre for Legal Research v. State of Kerala, (2004) 2 SCC 65, the Supreme
Court reiterated that access to legal aid and informal resolution are integral to Article 39A of the
Constitution.245

243
State of Punjab v. Jalour Singh, (2008) 2 SCC 660.
244
InterGlobe Aviation Ltd. v. N. Satchidanand, (2011) 7 SCC 463.
245
Centre for Legal Research v. State of Kerala, (2004) 2 SCC 65.

72
3.5 ROLE OF NATIONAL LEGAL SERVICES AUTHORITY (NALSA) AND
STATE AUTHORITIES

NALSA was constituted under the Legal Services Authorities Act, 1987 to provide free legal aid
and promote justice on the basis of equal opportunity. It coordinates the legal aid mechanisms in
India and ensures access to justice for the poor and marginalised. The authority plays a central role
in institutionalising ADR mechanisms by organising Lok Adalats, promoting mediation, and
empowering State Legal Services Authorities (SLSAs) and District Legal Services Authorities
(DLSAs). In family disputes, where social sensitivities, economic vulnerabilities and emotional
trauma intersect, NALSA’s role becomes not only remedial but also preventive and transformative.

Section 3 of the Legal Services Authorities Act provides for the constitution of NALSA. It is
chaired by the Chief Justice of India and includes a senior Supreme Court judge nominated by the
Chief Justice and the Member-Secretary appointed by the Central Government. Section 4 and
Section 6 establish State and District Authorities respectively. These authorities ensure that legal
services reach every individual, especially women, children, persons with disabilities and victims
of domestic violence who frequently encounter family disputes but lack legal empowerment to
address them through litigation.246

Section 12 of the Act specifies the categories eligible for free legal aid. It includes women,
children, Scheduled Castes, Scheduled Tribes, persons with disabilities, victims of natural disasters
and those in custody. In family disputes, women often lack the economic and social capital to
initiate or defend a case. NALSA provides not just lawyers but counselling, mediation support,
and access to family welfare services. In cases of maintenance, child custody, or matrimonial
violence, women receive immediate and sustained legal assistance without procedural delays.247

NALSA and SLSAs have established thousands of Legal Aid Clinics across India. These are often
located within court premises, panchayat buildings, or legal literacy centres. They act as the first
point of contact for distressed parties, especially in rural and semi-urban areas. When family
disputes arise, paralegal volunteers (PLVs) or trained lawyers guide individuals towards amicable
resolution. These clinics operate with gender-sensitive, trauma-informed practices. They help

246
Legal Services Authorities Act, 1987 (Act 39 of 1987), ss. 3–6.
247
Id., s. 12.

73
parties understand their rights and assist in accessing mediation, Lok Adalats or courts as
needed.248

NALSA regularly organises legal awareness and outreach programmes focused on family law.
Through campaigns such as “Connecting to Serve,” “Beti Bachao Beti Padhao” legal drives, or
women’s rights camps, NALSA demystifies the legal framework governing marriage, divorce,
maintenance, guardianship and protection from domestic violence. These programs improve
access to ADR by educating women and families about alternative mechanisms like conciliation,
Lok Adalats and court-annexed mediation centres. These campaigns target community influencers
and focus groups, including Anganwadi workers, school teachers and local leaders.249

A major contribution of NALSA is its role in conducting National and State Lok Adalats. These
Adalats are held periodically across the country and dispose of large volumes of family disputes.
NALSA develops formats, model procedures and coordinates with High Courts and SLSAs to
ensure seamless functioning. Family disputes like mutual consent divorces under Section 13-B of
the Hindu Marriage Act, alimony disputes and Section 125 CrPC maintenance cases are frequently
settled in these forums. The awards passed have the status of civil court decrees and are binding
on parties, ensuring finality and enforceability.250

NALSA also encourages pre-litigation conciliation. Through its mandate under Section 19(5) of
the Act, SLSAs organise Pre-Litigation Lok Adalats. These forums are critical in family disputes
where early intervention may save relationships or avoid escalation. Trained conciliators and
mediators, often with backgrounds in psychology or social work, facilitate confidential
conversations between spouses or family members. This early resolution approach avoids
adversarial litigation and protects family harmony, especially where minor children are
involved.251

The Mediation and Conciliation Project Committee (MCPC) of the Supreme Court works closely
with NALSA in setting up and training mediation infrastructure. NALSA funds mediation training
programmes, especially for women mediators, legal aid counsel, and judicial officers in family

248
NALSA, “Operational Guidelines for Legal Aid Clinics” (2011).
249
NALSA, “Legal Awareness Programmes,” available at: https://nalsa.gov.in (last visited May 19, 2025).
250
NALSA, “National Lok Adalat Statistics 2023,” available at: https://nalsa.gov.in/statistics/national-lok-adalat
(last visited May 19, 2025).
251
Legal Services Authorities Act, 1987 (Act 39 of 1987), s. 19(5).

74
courts. In collaboration with State Judicial Academies, these trainings include role-play
simulations and gender-sensitive communication modules. The aim is to embed ADR within the
functioning of the justice system, not as a peripheral alternative, but as a core process for family
disputes.252

The NALSA (Protection and Enforcement of Tribal Rights) Scheme, NALSA (Legal Services to
the Workers in the Unorganised Sector) Scheme, and the NALSA (Effective Implementation of
Poverty Alleviation Schemes) Scheme, while not directly aimed at family law, indirectly assist
women in family disputes who face eviction, property exclusion or financial neglect. These
schemes intersect with family ADR by providing economic support, legal representation and
rehabilitation guidance, thus reinforcing the outcomes of mediated settlements or Lok Adalat
awards.253

MCPC, “Mediation Training Manuals and Reports,” Supreme Court of India (2022).
252

NALSA, “Welfare Schemes and Interventions,” available at: https://nalsa.gov.in/schemes (last visited May 19,
253

2025).

75
CHAPTER 4: LEGAL DIMENSIONS AND DOCTRINAL
ANALYSIS OF ADR IN FAMILY DISPUTES IN INDIA
4.1 DEFINITION AND CLASSIFICATION OF FAMILY DISPUTES

4.1.1 Divorce and Matrimonial Issues

Matrimonial disputes stem from the breakdown of the relationship between spouses. Divorce,
judicial separation, annulment, restitution of conjugal rights, and maintenance proceedings fall
within this classification. These disputes are deeply personal. They carry emotional and social
consequences. The complexity intensifies when children are involved or when there are
overlapping financial or property issues. In India, these disputes are governed by personal laws
like the Hindu Marriage Act, 1955; the Dissolution of Muslim Marriages Act, 1939; the Indian
Divorce Act, 1869; and the Parsi Marriage and Divorce Act, 1936. ADR mechanisms, especially
mediation and conciliation, offer alternatives that are more empathetic and non-adversarial than
formal litigation.

Under the Hindu Marriage Act, 1955, divorce can be sought under Section 13 on grounds such as
cruelty, adultery, desertion, mental disorder, and conversion. Mutual consent divorce under Section
13-B has gained prominence for its collaborative approach. In Sureshta Devi v. Om Prakash, AIR
1992 SC 1904, the Supreme Court held that mutual consent requires free and informed agreement
by both spouses until the final decree is passed. This provision is ideal for mediation. Many courts
have used ADR to negotiate terms such as alimony, child custody, and property division before
allowing the petition to proceed.254

Section 23(2) of the Hindu Marriage Act directs the court to attempt reconciliation between parties
before proceeding with divorce. This provision embeds ADR within matrimonial litigation. Family
courts are thus mandated to explore reconciliation through counselling and mediation. In K.
Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court highlighted that reconciliation
efforts must not be treated as mere formality. Instead, judges should refer suitable cases to trained
mediators who can create a safe, neutral space for dialogue and negotiation.255

254
Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
255
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

76
Muslim law allows dissolution of marriage by talaq (repudiation by husband), khula (demand by
wife), and judicial decree under the Dissolution of Muslim Marriages Act, 1939. Although talaq
was traditionally unilateral, Shayara Bano v. Union of India, (2017) 9 SCC 1 declared triple talaq
unconstitutional. This judgment paved the way for more structured processes like reconciliation
or mediation before separation. ADR can assist Muslim couples to negotiate fair terms of
separation, especially in matters of mehr, child custody, and maintenance. In Masroor Ahmed v.
State (NCT of Delhi), 2008 SCC OnLine Del 1362, the Delhi High Court encouraged negotiation
and reconciliation through mediation in a criminal complaint under Section 498A IPC filed after a
disputed talaq.256

In Christian law, the Indian Divorce Act, 1869 governs divorce. The Act provides grounds such as
adultery, cruelty, desertion, and change of religion. Section 10A allows for mutual consent divorce,
which has made ADR more applicable. Courts increasingly refer disputes under this Act to
mediation centres attached to family courts. The Kerala High Court in Sheeba A. v. Reji A. John,
2009 SCC OnLine Ker 4492 held that in mutual divorce petitions, the courts must assist parties in
resolving outstanding issues through structured mediation sessions, especially where minor
children are involved.257

In Parsi law, the Parsi Marriage and Divorce Act, 1936 provides for matrimonial suits before
special delegates. Section 32 lays down grounds for divorce including adultery, desertion, and
cruelty. Though the Act mandates formal hearings, courts have endorsed ADR where parties are
amenable. While the Act is silent on mediation, courts have recognised its value. In Kavina
Nariman v. Rohinton Nariman, 2012 SCC OnLine Bom 1011, the Bombay High Court stayed
divorce proceedings to allow parties to explore mediated settlement.258

Restitution of conjugal rights (RCR) under Section 9 of the Hindu Marriage Act and under personal
laws like Muslim law has been controversial. While courts may pass a decree for restitution, such
enforcement is impractical and coercive. In many cases, ADR has helped parties understand the
emotional consequences of seeking RCR and convert such petitions into mutual consent divorces.
Courts have discouraged use of RCR as a tool of pressure and instead promoted dialogue. In Sarla

256
Masroor Ahmed v. State (NCT of Delhi), 2008 SCC OnLine Del 1362.
257
Sheeba A. v. Reji A. John, 2009 SCC OnLine Ker 4492.
258
Kavina Nariman v. Rohinton Nariman, 2012 SCC OnLine Bom 1011.

77
Mudgal v. Union of India, (1995) 3 SCC 635, the Court touched upon the misuse of matrimonial
provisions and the need for humane dispute resolution.259

Maintenance proceedings under Section 125 CrPC and under personal laws often follow or
accompany divorce suits. These are ripe for ADR, particularly where children and dependent
spouses are involved. Family courts are empowered to refer such disputes to mediation. In Afcons
Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24, the Supreme
Court included maintenance disputes in the list of matters suitable for ADR. In Manju Bhatia v.
New India Assurance Co., AIR 1997 Del 147, the court mediated interim maintenance between
parties before the suit progressed, showing ADR’s utility even in civil claims ancillary to
matrimonial disputes.260

Cruelty as a ground for divorce requires careful handling. Where physical or mental abuse is
alleged, mediation may not always be suitable. Courts have evolved a cautious approach. In
Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588, the Supreme Court held that
mediation should not compromise justice in cases of grave abuse. However, in cases involving
lesser emotional conflict or misunderstandings, courts have recognised that ADR can help clarify
miscommunication and reduce litigation.261

4.1.2 Child Custody and Guardianship

Child custody disputes arise when parents separate or divorce, and there’s a conflict regarding who
should care for the child. These cases frequently come with emotional strain and legal complexity.
The legal framework on custody and guardianship involves both statutory law and judicial
interpretation. In India, such matters are primarily governed by the Guardians and Wards Act, 1890
and respective personal laws. The overarching principle applied in all such disputes is the “welfare
of the child.” ADR has emerged as a valuable tool in resolving custody matters amicably, without
adversarial litigation that may traumatise the child or embitter parental relations.

Under the Hindu Minority and Guardianship Act, 1956, the natural guardian of a minor boy or
unmarried girl is the father, and after him, the mother. However, this is subject to the welfare of

259
Sarla Mudgal v. Union of India, (1995) 3 SCC 635.
260
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24; Manju Bhatia v. New
India Assurance Co., AIR 1997 Del 147.
261
Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588.

78
the minor being of paramount importance. Section 6 of the Act must be read with Section 13,
which clearly mandates that the welfare of the child shall be the paramount consideration. The
Supreme Court in Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149 held that the term
“after” in Section 6 does not mean after the lifetime of the father, but rather in the context of who
can better secure the welfare of the child at a given time.262

The Guardians and Wards Act, 1890 is the secular law applicable to all communities in matters of
guardianship. Section 17 of the Act states that in appointing or declaring a guardian, the court shall
consider the age, sex and religion of the minor, the character and capacity of the guardian, and,
most significantly, the welfare of the minor. The Act also provides for the appointment of guardians
in respect of both the person and the property of the minor. Courts, especially family courts,
consider psychological, educational, and social needs while deciding custody and guardianship
applications. This broad discretion has allowed the judiciary to encourage parties to use mediation
where conflict resolution is possible.263

ADR methods, particularly mediation, have been found extremely effective in custody battles.
Family courts often refer parties to mediation before hearing contested custody petitions. This
referral process finds legal backing in Section 89 of the Code of Civil Procedure, 1908 and also
under Section 9 of the Family Courts Act, 1984. In Bhuwan Mohan Singh v. Meena, (2015) 6 SCC
353, the court reiterated the importance of meaningful mediation in family disputes, especially
when the welfare of the child is at stake. It was held that resolving such disputes outside the
adversarial forum was essential to preserve relationships and ensure psychological comfort to the
child.264

ADR supports child-centric solutions by enabling flexible arrangements such as joint custody,
visitation schedules, and shared parenting plans. In Roxann Sharma v. Arun Sharma, (2015) 8 SCC
318, the court stated that courts should consider awarding sole or joint custody depending on the
best interest of the child. It encouraged the trial courts to refer parties to mediation to reach an
amicable resolution tailored to the child’s emotional and physical needs.265

262
Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.
263
The Guardians and Wards Act, 1890, s. 17.
264
Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.
265
Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.

79
Muslim law regards the mother as the natural custodian of a minor child up to a certain age-7 years
for boys and puberty for girls. However, the father remains the legal guardian. While this
traditional rule may appear rigid, Indian courts have interpreted these provisions liberally in the
interest of the child. The Delhi High Court in Gulam Mustafa v. State, 2001 SCC OnLine Del 877,
facilitated a custody settlement between estranged parents through mediation, despite the father
asserting traditional rights. The court appreciated the mother’s willingness to accept a shared
custody framework, which was more suitable for the child.266

Christian custody matters are governed by the Indian Divorce Act, 1869. Section 41 of the Act
empowers the court to pass interim orders for custody, maintenance, and education of minor
children. These matters are usually addressed during divorce proceedings. Courts have adopted a
child-centric approach and encouraged mediation. In Susan Thomas v. Jose Thomas, 2013 SCC
OnLine Ker 32317, the Kerala High Court referred a bitter custody battle to court-annexed
mediation. The mediation helped formulate an effective visitation schedule and temporary shared
parenting plan, reducing the emotional impact on the child.267

Parsi law under the Parsi Marriage and Divorce Act, 1936 provides for custody and maintenance
under Sections 49 and 50. Though the Act uses archaic language, courts have taken a progressive
approach. In Meher Master v. Naoroji Master, 2010 SCC OnLine Bom 1681, the Bombay High
Court referred a custody matter to mediation before hearing the divorce petition. The mediation
led to an agreement on joint schooling, alternate weekend access, and shared holiday custody,
which was recorded in the court’s decree.268

In India, there has been a growing doctrinal shift from the “parental rights” model to the “child
rights” model in custody adjudication. Article 39(e) and (f) of the Constitution of India impose a
directive on the State to ensure that children are not abused and that their childhood is protected.
Article 15(3) permits the State to make special provisions for children. These constitutional
mandates support the use of ADR as a process that protects children from adversarial litigation and
prolonged parental conflict. Courts thus promote conciliation, counselling, and mediation in
custody issues, often before even admitting litigation.

266
Gulam Mustafa v. State, 2001 SCC OnLine Del 877.
267
Susan Thomas v. Jose Thomas, 2013 SCC OnLine Ker 32317.
268
Meher Master v. Naoroji Master, 2010 SCC OnLine Bom 1681.

80
The Supreme Court in Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409 held that the child
should not be treated as a shuttlecock between warring parents. The court emphasized that the
adversarial system can be emotionally damaging to children, and therefore, wherever possible,
mediation and reconciliation must be attempted at the earliest. In Sampath Kumar v. Shilpa, 2018
SCC OnLine Kar 812, the Karnataka High Court facilitated resolution through child-focused
mediation which led to collaborative parenting agreements.269

In international custody disputes, India is not a signatory to the Hague Convention on the Civil
Aspects of International Child Abduction. However, Indian courts have taken guidance from it in
cross-border disputes. In V. Ravi Chandran v. Union of India, (2010) 1 SCC 174, the Court dealt
with transnational custody and reiterated that welfare of the child is the supreme consideration.
Though the case involved competing jurisdictions, the court still urged mediation, considering the
psychological impact on the child caught between two legal systems.270

4.1.3 Maintenance and Alimony

Maintenance and alimony are legal obligations imposed to provide financial support to a spouse
or children after separation or divorce. These obligations aim to ensure economic fairness and
prevent destitution. Maintenance can be interim or permanent. Alimony generally refers to lump-
sum or periodic financial compensation. Indian family laws, both secular and religious, provide
for maintenance rights. These disputes often involve emotionally charged interactions, financial
disclosure, and social pressures. ADR offers a more conciliatory and flexible space for resolving
such matters with dignity and speed.

Section 125 of the Code of Criminal Procedure, 1973 provides a secular remedy for maintenance.
It allows wives, children, and parents who are unable to maintain themselves to seek support. It
applies irrespective of religion. The provision is preventive in nature and aims to avoid vagrancy.
In Shah Bano v. Mohd. Ahmed Khan, AIR 1985 SC 945, the Supreme Court upheld the right of a
Muslim woman to claim maintenance under Section 125, observing that the provision is a measure
of social justice and not governed by personal laws. This judgment brought maintenance disputes
to the forefront of constitutional discourse and ADR applicability.271

269
Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409; Sampath Kumar v. Shilpa, 2018 SCC OnLine Kar 812.
270
V. Ravi Chandran v. Union of India, (2010) 1 SCC 174.
271
Shah Bano v. Mohd. Ahmed Khan, AIR 1985 SC 945.

81
ADR mechanisms, especially mediation and conciliation, are widely used in resolving Section 125
disputes. Family courts, established under the Family Courts Act, 1984, are empowered to refer
parties to conciliation before proceeding with adjudication. Section 9 of the Act mandates that
courts should strive to bring about settlement in family disputes. Maintenance disputes are ideal
for mediation because they often involve relational concerns, financial negotiations, and future
planning. The Kerala High Court in Mini v. Gopalakrishnan, 2011 SCC OnLine Ker 541, stressed
that judges must make genuine attempts to settle maintenance claims through counselling and
conciliation before litigation.272

The Hindu Adoption and Maintenance Act, 1956 under Section 18 recognises a wife’s right to be
maintained by her husband during the subsistence of marriage. Section 19 provides for the
maintenance of widowed daughters-in-law. Section 20 extends maintenance to children and aged
parents. These provisions, though substantive, are implemented through civil suits or through
reliefs sought under the Family Courts Act. Courts have consistently held that when claims arise
under this Act, ADR must be attempted first. In Kirtikant D. Vadodaria v. State of Gujarat, (1996)
4 SCC 479, the court reiterated that welfare and dignity of dependents must guide the judicial
process, and wherever possible, mutual settlement must be encouraged.273

The Hindu Marriage Act, 1955 provides for alimony and maintenance under Sections 24 and 25.
Section 24 allows either spouse to claim interim maintenance during the pendency of proceedings.
Section 25 provides for permanent alimony and maintenance. The amount is decided based on
factors like income, conduct, and duration of marriage. Courts increasingly refer parties to
mediation at this stage. In Manisha Tyagi v. Deepak Kumar, (2010) 4 SCC 339, the Supreme Court
stated that mediation is not merely a procedural formality but a critical step in balancing the
financial interests of spouses post-marriage breakdown.274

In Muslim law, maintenance is governed by personal laws and interpreted in accordance with the
Quran and judicial precedent. The Muslim Women (Protection of Rights on Divorce) Act, 1986,
enacted after the Shah Bano case, provides that a divorced Muslim woman is entitled to a
reasonable and fair provision and maintenance during the iddat period. However, the Supreme
Court in Daniel Latifi v. Union of India, (2001) 7 SCC 740, interpreted the Act to mean that the

272
Mini v. Gopalakrishnan, 2011 SCC OnLine Ker 541.
273
Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479.
274
Manisha Tyagi v. Deepak Kumar, (2010) 4 SCC 339.

82
provision must be made within the iddat period but should be sufficient to maintain her for life.
ADR has been used extensively by courts and legal services authorities to facilitate settlements in
such cases. Mediation ensures that dignity and cultural sensitivities are preserved while negotiating
fair financial arrangements.275

Christian women can seek alimony under Sections 36 and 37 of the Indian Divorce Act, 1869.
These provisions allow for maintenance pendente lite and permanent alimony. The Act follows a
fault-based divorce model. Courts have acknowledged that bitter litigation in such cases can cause
emotional harm and suggested ADR for interim and final settlements. In Elizabeth Antony v.
Michel Charles John Chown Lengera, (1990) 3 SCC 333, the Supreme Court advised that financial
disputes in matrimonial matters should first be resolved through conciliation, especially where
children or aged dependents are involved.276

Parsi law under the Parsi Marriage and Divorce Act, 1936 provides for alimony and maintenance
under Sections 40 and 41. Though the Act has no specific provision for ADR, courts apply Section
9 of the Family Courts Act to mandate conciliation. In Ruttonsha D. Sethna v. Mehroo R. Sethna,
2012 SCC OnLine Bom 277, the Bombay High Court encouraged mediation before deciding on
permanent alimony. The process facilitated voluntary disclosure of assets and resulted in a lump-
sum settlement, which was later formalised in a consent decree.277

ADR mechanisms are also relevant in maintenance enforcement proceedings. Delays in payment
or default are common. Rather than resorting to contempt or execution, courts often invite parties
for dialogue. The Mediation and Conciliation Project Committee (MCPC) of the Supreme Court
has developed modules for post-decree mediation. These modules are used by court-annexed
mediation centres to negotiate revised terms, payment schedules, or waiver arrangements. This
reduces litigation load and ensures smoother compliance.

4.1.4 Domestic Violence and Abuse

Domestic violence includes physical, emotional, verbal, economic, and sexual abuse within
domestic relationships. It often arises in marriages, intimate partnerships, and extended family
settings. Abuse can involve controlling behaviour, coercion, and intimidation. Under Indian law,

275
Daniel Latifi v. Union of India, (2001) 7 SCC 740.
276
Elizabeth Antony v. Michel Charles John Chown Lengera, (1990) 3 SCC 333.
277
Ruttonsha D. Sethna v. Mehroo R. Sethna, 2012 SCC OnLine Bom 277.

83
domestic violence is recognised not only as a criminal offence but also as a civil wrong that violates
human dignity and equality. These disputes disrupt family life and often require intervention that
is both sensitive and swift.

The Protection of Women from Domestic Violence Act, 2005 (PWDVA), is the principal
legislation addressing domestic violence in India. It provides for protection orders, residence
orders, monetary relief, custody, and compensation. Under s. 14 of the Act, a Magistrate may direct
the parties to undergo counselling. This is a significant entry point for ADR. It signals the judicial
system’s acceptance of structured conciliation in abuse cases where safety and voluntariness are
assured. The Delhi High Court in Harsora v. Harsora, 2016 SCC OnLine Del 5445, highlighted
the need for therapeutic and restorative justice models in resolving family abuse disputes.278

However, ADR in domestic violence disputes must be approached with caution. The Supreme
Court in K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, held that while mediation is useful in
matrimonial cases, it should not be promoted where cruelty or abuse is involved unless the
aggrieved party is willing. The judgment drew a line between reconciliation and re-victimisation.
In abuse cases, power imbalances, trauma, and safety concerns may render negotiation processes
coercive or unsafe.279

Despite these risks, ADR is used in many cases where abuse is psychological, economic, or
relational. Trained mediators in court-annexed centres use trauma-informed techniques. They
ensure that survivors are heard without fear. The Mediation and Conciliation Project Committee
(MCPC) has developed specialised protocols for such disputes. These include screening tools,
separate sessions, and options to opt out. The emphasis remains on safety, informed consent, and
dignity. In Manju Bhatia v. NDMC, 1997 SCC OnLine Del 812, the Delhi High Court observed
that meaningful resolution of intimate partner conflicts requires a mix of legal and therapeutic
interventions.280

Counselling centres under the PWDVA, run by NGOs and women’s commissions, often resolve
disputes through informal conciliation. These efforts lead to settlement deeds where the perpetrator
agrees to behavioural changes or financial terms. While these agreements are not always

278
Harsora v. Harsora, 2016 SCC OnLine Del 5445.
279
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
280
Manju Bhatia v. NDMC, 1997 SCC OnLine Del 812.

84
enforceable like court decrees, they foster accountability through community monitoring. Many
district protection officers refer such settlements for judicial ratification under s. 23 of the Act. The
Supreme Court in Indra Sarma v. VKV Sarma, (2013) 15 SCC 755, upheld such informal
settlements where both parties were legally represented and safeguards were ensured.281

ADR in domestic violence cases also intersects with matrimonial relief. A woman filing a domestic
violence complaint may also seek divorce or custody. Courts often club or bifurcate these
proceedings. Mediation helps in resolving interlinked issues. Financial abuse is a frequent ground
for dispute. Through mediation, parties may arrive at maintenance, asset division, or debt
responsibility arrangements. The Bombay High Court in Swapnil v. Shraddha, 2020 SCC OnLine
Bom 22, approved a mediated divorce agreement that included counselling, monthly alimony, and
a restraining clause.282

4.1.5 Property and Succession Disputes

Property and succession disputes in Indian families arise from issues of inheritance, division of
ancestral or joint family property, and testamentary succession. These disputes are governed by
personal laws such as the Hindu Succession Act, 1956, Muslim personal laws, Christian law of
succession, and the Indian Succession Act, 1925. They often lead to long-standing litigation that
deteriorates familial relations. ADR provides a less adversarial and more cooperative platform to
resolve such emotionally and legally complex matters.

In Hindu families, disputes often arise over coparcenary property. After the 2005 amendment to
the Hindu Succession Act, daughters were granted equal coparcenary rights. This triggered a spike
in partition suits between siblings. Courts have encouraged mediation to reduce backlog and
promote peaceful settlement. In Prakash v. Phulavati, (2016) 2 SCC 36, the Supreme Court
interpreted the 2005 amendment as prospective but later clarified its retroactive scope in Vineeta
Sharma v. Rakesh Sharma, (2020) 9 SCC 1. These cases widened the ambit of female inheritance
claims, thus increasing the role of ADR in such family restructuring matters.283

ADR is preferred because property disputes involve not just legal but emotional ownership. In
K.K. Modi v. K.N. Modi, (1998) 3 SCC 573, the Supreme Court remarked that family disputes are

281
Indra Sarma v. VKV Sarma, (2013) 15 SCC 755.
282
Swapnil v. Shraddha, 2020 SCC OnLine Bom 22.
283
Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.

85
best settled out of court because family peace cannot be restored through decrees. Arbitration was
discouraged in that case due to allegations of fraud, but the court emphasized that mediation and
conciliation can heal relationships fractured by property rows.284

In Muslim personal law, succession is governed by inheritance rules rather than wills. Disputes
often emerge due to lack of awareness of shares, especially among female heirs. Courts have
observed that amicable settlements through Lok Adalats or family councils based on Islamic
principles such as Sulh (amicable resolution) can bring faster justice. However, care must be taken
that settlements do not override statutory rights. In Mohd. Ahmed Khan v. Shah Bano Begum, 1985
AIR 945, while the issue pertained to maintenance, the case triggered broader debates on gender
rights and highlighted the fragility of women’s bargaining power in informal settings, urging courts
to be cautious during settlement proceedings.285

Christian and Parsi succession is largely governed by the Indian Succession Act, 1925. Disputes
arise mostly in testamentary succession involving wills. Mediation plays a crucial role in
interpreting the intentions of the testator. Courts have repeatedly held that minor ambiguities in
wills should not become causes of prolonged litigation. In Sushila Devi v. Bharat Singh, (2018)
SCC OnLine Del 1350, the Delhi High Court upheld a mediated will arrangement dividing both
movable and immovable property based on moral equity rather than strict legality.286

ADR’s value in succession disputes lies in its flexibility. Mediation allows the parties to account
for sentimental attachments to properties. One child may wish to keep the family home, while
others may agree to financial compensation. Such nuanced solutions cannot be ordered by courts.
Family settlements recorded under s. 89 of the Code of Civil Procedure, 1908 and under the
Arbitration and Conciliation Act, 1996, have been upheld as valid if they are voluntary and lawful.
In Roshan Lal v. Mohan Singh, AIR 2002 SC 2434, the Supreme Court observed that once parties
agree on division, the role of the court must be confined to recording the same.287

Judicial pronouncements have consistently promoted ADR in succession disputes to reduce

bitterness. In Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC 400, the court explained that
courts must aid parties in arriving at a settlement in family property disputes and refer such matters

284
K.K. Modi v. K.N. Modi, (1998) 3 SCC 573.
285
Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945.
286
Sushila Devi v. Bharat Singh, 2018 SCC OnLine Del 1350.
287
Roshan Lal v. Mohan Singh, AIR 2002 SC 2434.

86
to court-annexed mediation centres. The Family Court system, under the Family Courts Act, 1984,
also encourages such non-litigious resolution, especially where property overlaps with marital
breakdown or divorce proceedings.288

Lok Adalats under the Legal Services Authorities Act, 1987 have played a proactive role in
resolving property matters involving multiple heirs. These include cases where land records are
unclear, or mutations are disputed. Settlements are given the status of a decree under s. 21 of the
Act. In Harbans Singh v. Gurdev Singh, 2019 SCC OnLine P&H 2114, the Punjab and Haryana
High Court validated a property division reached at a Lok Adalat, holding it binding even though
the revenue records had not yet been updated.289

4.2 PERSONAL LAW SYSTEMS GOVERNING FAMILY MATTERS

4.2.1 Hindu Law

Hindu law governs an expansive range of family matters including marriage, divorce, adoption,
maintenance, inheritance, and guardianship. These matters are regulated primarily through the
Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship
Act, 1956; and the Hindu Adoptions and Maintenance Act, 1956. All these statutes endorse
reconciliation and peaceful settlement of disputes in family relationships, making ADR especially
compatible with Hindu personal law.

Under the Hindu Marriage Act, 1955, s. 23(2) mandates that courts must attempt reconciliation
between the parties before granting a divorce. Courts have interpreted this provision to include
referral to mediation or counseling sessions. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511,
the Supreme Court emphasized the importance of restoring harmony and advised courts to exercise
restraint and explore reconciliation mechanisms even in cases involving cruelty and mental
agony.290

The role of ADR is even more crucial when family disputes involve both legal rights and emotional
sensitivities. Mediation has emerged as a preferred ADR tool, particularly in cases involving
divorce by mutual consent under s. 13B of the Hindu Marriage Act. Courts like the Delhi High
Court have institutionalized pre-litigation mediation desks to facilitate amicable settlements in

288
Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC 400.
289
Harbans Singh v. Gurdev Singh, 2019 SCC OnLine P&H 2114.
290
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

87
matrimonial cases. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court
reiterated that all family disputes must first go through mediation or conciliation before adversarial
proceedings are allowed to continue.291

Hindu Succession Act, 1956, governs inheritance and succession among Hindus. The 2005
amendment granting daughters equal rights in coparcenary property has created a new set of
disputes within families. These matters often involve not just legal rights but cultural expectations
and emotions around ancestral property. Courts have consistently encouraged parties to settle such
disputes through family settlements or Lok Adalats. In Vineeta Sharma v. Rakesh Sharma, (2020)
9 SCC 1, the apex court interpreted the 2005 amendment to apply retrospectively and stressed the
need for promoting gender equality even within family negotiations and settlements.292

The Hindu Adoptions and Maintenance Act, 1956 also provides fertile ground for ADR. Claims
for maintenance under ss. 18 and 20 are often resolved through conciliation or Lok Adalats,
especially when it involves elderly parents or dependent wives. The judiciary has favored ADR as
it reduces the adversarial nature of maintenance claims, which can otherwise lead to estrangement
and humiliation. In Danamma v. Amar, (2018) 3 SCC 343, though the issue centered around
succession, the Court also hinted at the need for balance and amicable solutions within the family
to prevent prolonged legal battles.293

The Hindu Minority and Guardianship Act, 1956, provides that the welfare of the child shall be
the paramount consideration in appointing a guardian. This doctrine aligns with mediation, where
parents are encouraged to arrive at solutions that prioritize the best interest of the child over their
personal grievances. Courts have increasingly referred such guardianship disputes to mediation
centers. In Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149, the Supreme Court
clarified the mother’s eligibility as a natural guardian and emphasized that family laws must evolve
to reflect social realities-an approach consistent with ADR mechanisms.294

291
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
292
Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.
293
Danamma v. Amar, (2018) 3 SCC 343.
294
Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

88
 4.2.2 Muslim Law

Muslim law in India, derived from the Quran, Hadith, and juristic interpretations, governs family
matters such as marriage (nikah), divorce (talaq), maintenance (nafaqah), guardianship,
inheritance, and dower (mehr). The legal framework allows for informal and flexible settlement
processes, making ADR methods such as conciliation and mediation naturally embedded within
Islamic traditions.

Under Muslim personal law, marriage is a civil contract. Disputes relating to matrimonial
obligations, dower, or breach of terms often find resolution through community-based arbitration
councils (jamaats or shura councils) or family elders, functioning as informal mediators. These
traditional modes closely resemble the present-day mediation framework promoted under statutory
mechanisms. The Shariat Act, 1937 reinforces the application of personal law in family matters,
creating space for ADR within its fold by recognizing informal settlement as a customary
practice.295

Conciliation is a deeply embedded concept in Islamic jurisprudence. The Quran itself promotes
peaceful settlement of disputes between spouses. Verse 4:35 of the Quran encourages appointing
arbitrators from both husband’s and wife’s families for resolving conflicts. The courts in India have
acknowledged this ethos in several rulings. In Shah Bano Begum v. Mohammad Ahmed Khan, AIR
1985 SC 945, the Supreme Court acknowledged the reconciliation duties under Islamic law and
stressed that ADR could serve as a suitable mechanism, particularly in maintenance matters under
s. 125 of CrPC where religious sensitivities are involved.296

ADR’s effectiveness in talaq disputes has gained traction, particularly after the judgment in
Shayara Bano v. Union of India, (2017) 9 SCC 1, which declared triple talaq unconstitutional.
Post this decision, the focus shifted to structured dialogue and mediation between parties before
dissolution of marriage is finalized. The Muslim Women (Protection of Rights on Marriage) Act,
2019, too, creates an opportunity for resolving disputes amicably and upholding the dignity of
Muslim women by shifting away from arbitrary pronouncements of divorce.297

295
The Muslim Personal Law (Shariat) Application Act, 1937, s. 2.
296
Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.
297
Shayara Bano v. Union of India, (2017) 9 SCC 1.

89
Maintenance claims under Muslim law are handled either under personal law or through s. 125
CrPC, which is religion-neutral. In Daniel Latifi v. Union of India, AIR 2001 SC 3958, the Supreme
Court upheld the right of divorced Muslim women to maintenance beyond the iddat period,
highlighting that settlements through mutual consent or court-directed mediation can meet
constitutional mandates while respecting religious identity.298

Guardianship disputes are also governed under the Guardianship and Wards Act, 1890, read with
principles of Muslim law. A key criterion in appointing guardians remains the welfare of the child,
similar to the principle followed in other personal laws. ADR in such matters often proves
successful as parties are less defensive when facilitated by a neutral mediator. Religious tribunals
and dar-ul-qazas in some Muslim communities act as conciliatory bodies, resolving custodial
disagreements and maintenance issues within family structures.

The Muslim law on succession and property is intricate and governed by fixed shares under Sunni
and Shia jurisprudence. Disputes over inheritance, particularly among siblings, widows, and
extended family, are common. However, family settlements, a recognized form of ADR, are
frequent in Muslim families to maintain izzat (honor) and familial harmony. In Roshan Lal v.
Madan Lal, AIR 1965 SC 1417, the Supreme Court held that family arrangements made in good
faith and not obtained by fraud are valid and enforceable even without registration. This principle
has been extended by courts to Muslim family settlements as well.299

The role of panchayats and community leaders has been notable in providing ADR within the
Muslim community. Though these are informal and lack statutory status, they often command
social legitimacy. Courts, however, have clarified that these forums cannot override statutory law.
In Vishwa Lochan Madan v. Union of India, (2014) 7 SCC 707, the Supreme Court ruled that
decisions of Shariat courts have no legal standing, although consensual mediation facilitated by
such bodies is permissible.300

4.2.3 Christian Law

Christian personal law in India governs marriage, divorce, adoption, maintenance, and succession
among Christians. It derives its legal foundation from colonial-era legislation, chiefly the Indian

298
Daniel Latifi v. Union of India, AIR 2001 SC 3958.
299
Roshan Lal v. Madan Lal, AIR 1965 SC 1417.
300
Vishwa Lochan Madan v. Union of India, (2014) 7 SCC 707.

90
Christian Marriage Act, 1872 and the Indian Divorce Act, 1869. These laws are supported by
judicial interpretations and statutory reforms. In this framework, ADR has gained increasing
judicial endorsement as a humane, efficient alternative for resolving family disputes within the
Christian community.

The Indian Divorce Act, 1869 governs matrimonial disputes among Christians. Historically, it
provided for limited grounds of divorce and judicial separation, heavily influenced by English
ecclesiastical law. The 2001 amendment introduced mutual consent divorce under s.10-A, creating
an implicit space for ADR. Mutual consent as a ground for divorce enables parties to engage in
reconciliation and mediation, often conducted through family courts or church-based counseling
mechanisms.301

Christian marriage, although solemnized through religious rituals, remains a civil contract under
Indian law. The Church often facilitates reconciliation and healing through marriage counselors,
pre-litigation counseling, and internal grievance redressal. These practices mirror formal ADR
mechanisms such as conciliation and mediation. In cases of marital breakdown, church tribunals
and diocesan bodies attempt informal resolution before parties approach courts.

The Indian Divorce Act mandates a six-month waiting period for mutual consent divorce, which
provides scope for reconciliation through ADR. Courts have increasingly promoted mediation in
such cases. In Ammini E.J. v. Union of India, AIR 1995 Ker 252, the Kerala High Court upheld the
need for modern, equitable principles in Christian matrimonial law and emphasized the importance
of reconciliation and mutual dialogue.302

ADR in maintenance and alimony matters under Christian law is facilitated through provisions of
the Indian Divorce Act as well as s.125 of the Criminal Procedure Code, 1973. In Mrs. Mary Sonia
Zachariah v. Union of India, AIR 1995 Ker 252, the court emphasized the necessity for uniform
and gender-just maintenance provisions and encouraged amicable settlements through
mediation.303

Child custody under Christian personal law is governed by the Guardians and Wards Act, 1890.
Courts determining custody rights apply the “best interests of the child” principle. Christian

301
The Indian Divorce Act, 1869, s. 10-A.
302
Ammini E.J. v. Union of India, AIR 1995 Ker 252.
303
Mrs. Mary Sonia Zachariah v. Union of India, AIR 1995 Ker 252.

91
families often resolve these matters through joint consultations facilitated by legal aid centers,
court-appointed mediators, or family counselors. In ABC v. State (NCT of Delhi), (2015) 10 SCC
1, the Supreme Court held that an unwed Christian mother could be appointed sole guardian
without the father’s consent. This case reaffirmed the judiciary’s focus on balancing religious law
with constitutional guarantees, particularly through child-centric ADR.304

Succession among Christians is governed by the Indian Succession Act, 1925. Disputes relating to
wills, intestate succession, and property division are common. Family settlements and arbitration
are frequently used to avoid litigation. Courts have upheld such informal arrangements when made
in good faith. In Roshan Lal v. Madan Lal, AIR 1965 SC 1417, the Supreme Court reiterated that
family arrangements resolving inheritance disputes are binding, even if not formally registered.
This rationale equally applies to Christian property disputes settled through ADR.305

Many Christian NGOs and diocesan legal aid cells actively promote ADR in family matters. These
institutions provide counseling, pre-litigation conciliation, and post-divorce settlement services.
Some operate under the umbrella of the National Legal Services Authority (NALSA), aligning
church practices with statutory ADR mechanisms. The Delhi Catholic Archdiocese, for instance,
has a Family Welfare Centre that mediates disputes relating to marriage breakdown, child
visitation, and support, maintaining social cohesion without formal litigation.

4.2.4 Parsi Law

The Parsi community in India is governed in matrimonial matters by the Parsi Marriage and
Divorce Act, 1936 (Act 3 of 1936). This law is a unique codification distinct from Hindu, Muslim,
and Christian personal laws, and outlines formal judicial procedures through specially established
Parsi Matrimonial Courts. While it does not explicitly mention ADR mechanisms, the evolving
jurisprudence allows indirect integration of mediation principles through judicial discretion and
equitable resolution efforts.306

Under s. 19 of the Act, matrimonial suits are to be tried by a special court called the Parsi Chief
Matrimonial Court or the District Matrimonial Court. These courts include delegates from the
community who assist the presiding judge. This inclusion serves a quasi-mediation function,

304
ABC v. State (NCT of Delhi), (2015) 10 SCC 1.
305
Roshan Lal v. Madan Lal, AIR 1965 SC 1417.
306
The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936), s. 19.

92
allowing community-sensitive interpretation and compromise, especially in disputes relating to
divorce, judicial separation, and restitution of conjugal rights.307

The Act mandates solemnization of marriage before a Parsi priest and witnesses under s. 6,
ensuring validity, and any dispute about marriage legality or consent is judicially triable. However,
family-centric ADR, particularly in reconciliation, is often encouraged before litigation. This is
reflected in s. 32 of the Act, where provisions for divorce include mutual consent, desertion, and
cruelty. Courts attempt reconciliation in line with s. 23(2) of the Hindu Marriage Act, 1955, which
is applied analogously in broader family jurisprudence.308

Judicial pronouncements have supported conciliation-like steps before formal adjudication. In

Pirojsha Hormusji v. Pirojbai (AIR 1943 Bom 433), the Bombay High Court emphasized the moral
obligation of Parsis to maintain the sanctity of marriage and encouraged amicable settlement.
Though ADR was not institutionalized then, the court’s reliance on informal compromise laid
foundational reasoning for present-day mediation frameworks in family law.309

The Law Commission of India in its 59th Report recommended reforms in matrimonial laws
including special emphasis on reconciliation and counseling in minority personal law systems. It
observed that while Parsi law provides for structured courts, it lacked express mechanisms to
resolve conflicts amicably outside formal trials. This led to recognition of pre-litigation
counseling, especially in child custody or alimony-related Parsi disputes, as a judicially preferred
step.310

In urban centers, High Courts have established court-annexed mediation centers under directions
of the Supreme Court in Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
Parsis have availed these forums in matrimonial disputes, particularly where preservation of family
honour, inter-generational property or safeguarding children’s welfare remains crucial. Mediation
has assisted in negotiating alimony settlements and child visitation arrangements.311

307
The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936), s. 32.
308
The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 23(2).
309
Pirojsha Hormusji v. Pirojbai, AIR 1943 Bom 433.
310
Law Commission of India, “59th Report on the Hindu Marriage Act, 1955 and Special Marriage Act, 1954”
(1974).
311
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

93
The Parsis’ sociocultural structure emphasizes privacy and communal autonomy. Formal litigation
often brings public scrutiny, which the community tends to avoid. Therefore, parties increasingly
opt for in-camera hearings, private mediation, or settlement agreements, recorded under Order
XXIII of the Code of Civil Procedure, 1908. This tendency reinforces the value of ADR in Parsi
matrimonial contexts.312

Further, succession and inheritance matters governed by the Indian Succession Act, 1925 often
accompany divorce or separation proceedings in Parsi families. Disputes over ancestral property
or trust management are referred to Lok Adalats or private mediation panels in metropolitan cities
such as Mumbai and Ahmedabad. Here, community elders or retired judges facilitate consensus
using equitable doctrines.313

The ADR mechanism gains traction due to the Parsi population’s dwindling numbers and
interwoven family structures. Prolonged litigation risks family fragmentation. Informal
conciliation thus becomes a culturally consonant method, preserving both legal interests and
communal cohesion. This is evident in high-net-worth family disputes, where parties choose
private arbitrators or family law mediators to maintain confidentiality and expedite resolution.314

4.2.5 Special Marriage Act – Secular Law

The Special Marriage Act, 1954 governs interfaith and civil marriages in India. It is a secular law
that allows individuals from different religions or none to marry without renouncing their personal
faiths. The statute provides a complete matrimonial code with procedures for solemnization,
divorce, maintenance, and custody. It reflects constitutional values of equality, liberty, and non-
discrimination. Alternative Dispute Resolution (ADR) is not expressly mentioned in the Act, but
its spirit and procedural scheme enable courts to incorporate mediation and conciliation at every
stage.

Section 34 of the Act allows for judicial separation, divorce, and annulment of marriage. Courts
exercising jurisdiction under this Act must follow procedural mandates of the Code of Civil
Procedure, 1908, including Section 89 and Order X Rule 1A. These provisions mandate courts to
explore settlement avenues including mediation, conciliation, or Lok Adalat. In Suhasini v. Ashok

312
The Code of Civil Procedure, 1908 (Act 5 of 1908), Or. XXIII.
313
The Indian Succession Act, 1925 (Act 39 of 1925), s. 54.
314
Interview with Counsel specializing in Parsi family law, Bombay High Court, June 2023.

94
Kumar, 2007 SCC OnLine Del 1376, the Delhi High Court directed the Family Court to prioritize
reconciliation through court-annexed mediation before proceeding with divorce under the Special
Marriage Act.315

Section 23(2) of the Hindu Marriage Act, though not textually a part of the Special Marriage Act,
is often applied analogously. It obligates courts to endeavor reconciliation in divorce proceedings.
Indian courts, in interpreting secular laws through constitutional lens, often extend such
obligations to secular statutes. In Bipin Chandra Jaisingbhai Shah v. Prabhavati, AIR 1957 SC
176, the Supreme Court emphasized that even in civil marriages, courts must ensure that every
possibility of saving the marriage is exhausted before granting divorce.316

The Act’s secular and progressive structure makes it an ideal field for ADR. Interfaith marriages
often face cultural, familial, and societal resistance. Mediation in such cases allows parties to
negotiate not just legal rights but emotional and familial concerns. In Danial Latifi v. Union of
India, AIR 2001 SC 3958, although related to Muslim law, the Court acknowledged the value of
mediated outcomes in disputes involving social sensitivities, a principle that resonates in Special
Marriage Act disputes.317

Custody battles under Section 38 of the Act are governed by the Guardians and Wards Act, 1890.
In such matters, courts have consistently preferred mediation as it aligns with the “best interest of
the child” doctrine. In ABC v. State (NCT of Delhi), (2015) 10 SCC 1, the Supreme Court reiterated
that courts must avoid adversarial procedures in custody and guardianship cases. ADR was
advocated as a more sensitive tool to balance parental rights and child welfare.318

Maintenance claims under Section 36 and permanent alimony under Section 37 frequently give
rise to contested litigation. However, courts increasingly encourage parties to opt for mediation to
avoid protracted trials. In Narendra v. K. Meena, (2016) 9 SCC 455, the apex court advocated that
in situations involving mental cruelty or emotional strain, parties may reach more humane, less
hostile resolutions through mediation.319

315
Suhasini v. Ashok Kumar, 2007 SCC OnLine Del 1376.
316
Bipin Chandra Jaisingbhai Shah v. Prabhavati, AIR 1957 SC 176.
317
Daniel Latifi v. Union of India, AIR 2001 SC 3958.
318
ABC v. State (NCT of Delhi), (2015) 10 SCC 1.
319
Narendra v. K. Meena, (2016) 9 SCC 455.

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Property and succession disputes post-divorce under the Act are also handled with sensitivity
through ADR. While the Special Marriage Act does not codify inheritance, couples frequently
resolve property claims through family settlements or mediated agreements recorded as consent
decrees under Order XXIII Rule 3 CPC. The Supreme Court in Kale v. Deputy Director of
Consolidation, AIR 1976 SC 807, upheld the validity of such settlements, observing that they
promote peace and preserve social ties.320

The secular nature of the Special Marriage Act makes ADR particularly valuable in cross-cultural
matrimonial disputes. Courts have recognized that litigation may exacerbate tensions in such cases,
while ADR provides a non-adversarial space. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC
746, the Supreme Court permitted waiver of the six-month cooling-off period for mutual consent
divorce under the Hindu Marriage Act, but courts have followed similar logic under the Special
Marriage Act to expedite amicable divorces where settlement was reached through mediation.321

4.3 ROLE AND POWERS OF FAMILY COURTS

Family Courts aim to provide a specialized forum for resolving matrimonial and family disputes.
The Family Courts Act, 1984 (Act 66 of 1984), establishes these courts to promote conciliation
and secure speedy settlement. Section 9 of the Act specifically empowers the courts to strive for
settlement before proceeding to trial.322 These courts function with a more informal and sensitive
approach compared to regular civil courts, especially due to the emotional and private nature of
family matters.

The primary role of Family Courts lies in dealing with issues arising from marriage, legitimacy,
guardianship, and maintenance. Their powers include receiving evidence even outside the strict
provisions of the Indian Evidence Act, 1872 (Act 1 of 1872).323 Section 10 of the Act mandates
that the court shall be guided by the principles of natural justice, and not be bound by procedural
technicalities, allowing them to facilitate conciliation more effectively.324

Family Courts have exclusive jurisdiction over matters listed in the explanation to Section 7 of the
Act. This includes nullity of marriage, judicial separation, divorce, restitution of conjugal rights,

320
Kale v. Deputy Director of Consolidation, AIR 1976 SC 807.
321
Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.
322
The Family Courts Act, 1984 (Act 66 of 1984), s. 9.
323
The Indian Evidence Act, 1872 (Act 1 of 1872), s. 1.
324
The Family Courts Act, 1984 (Act 66 of 1984), s. 10.

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legitimacy of any person, maintenance, guardianship, custody of minor children, and access
rights.325 Their role is to reduce pendency and eliminate procedural delays found in traditional
litigation. This streamlined adjudication allows a focus on emotional needs of families over rigid
adversarial litigation.

A significant feature of these courts is the statutory mandate to prefer settlement over adjudication.
Under Section 9(1), the court must in the first instance, attempt conciliation. This feature
differentiates Family Courts from other civil courts. Courts have often emphasized the need to
adopt a conciliatory approach. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme
Court underscored the importance of reconciliation in matrimonial matters and suggested
compulsory counseling before litigation proceeds.326

These courts are empowered to appoint counselors, welfare experts and psychologists to assist
parties. Section 6 of the Act enables the state government to set up counseling centers in association
with the Family Court. The involvement of trained professionals reduces friction and encourages
mutual understanding, especially in sensitive disputes involving children and domestic issues.327

Another core power is procedural flexibility. Section 10(3) of the Family Courts Act allows the
court to evolve its own procedure subject to the principles of natural justice. This power liberates
the court from strict application of the Code of Civil Procedure, 1908 (Act 5 of 1908), and the
Indian Evidence Act. In the case of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC
329, the Supreme Court recognized the need for liberal and purposive interpretation in family
disputes to reduce hardship.328

Family Courts can record statements and receive affidavits even when evidence may be hearsay.
Section 14 of the Act empowers the court to receive any document or report as evidence if it deems
such evidence to be of assistance, notwithstanding the Evidence Act.329 This further ensures a
conciliatory, therapeutic judicial environment.

In many cases, Family Courts also exercise powers under the Protection of Women from Domestic
Violence Act, 2005 (Act 43 of 2005), especially in matters overlapping with matrimonial reliefs.

325
Id., s. 7.
326
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
327
The Family Courts Act, 1984 (Act 66 of 1984), s. 6.
328
Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329.
329
The Family Courts Act, 1984 (Act 66 of 1984), s. 14.

97
The overlapping jurisdiction has been acknowledged in various High Court rulings, where Family
Courts have entertained interim applications for protection, residence, and maintenance under the
DV Act, treating it as within their jurisdiction when combined with other family reliefs.330

4.4 STATUTORY AND JUDICIAL MANDATES FOR ADR IN FAMILY LAW

The Family Courts Act, 1984 marks a turning point. It created a distinct legal framework for
resolving family disputes. Section 9 of the Act mandates the court to endeavor for settlement before
proceeding to adjudication. This section makes conciliation compulsory. Family Courts must
actively promote settlement. The court can appoint counsellors, social workers, or even
psychologists to help the parties reach amicable terms. This aligns with the legislative intent to
treat family matters with sensitivity, not just legality. The law seeks to heal rather than punish.331

Section 23(2) of the Hindu Marriage Act, 1955 makes another express provision for reconciliation.
Before granting any matrimonial relief, the court must try to reconcile the parties. This is not
optional. The court must record reasons in writing if reconciliation fails. Even in cases of cruelty
or desertion, the court must assess scope for amicable settlement. The object is to preserve
marriage, not terminate it hastily. This statutory rule reflects Indian cultural and social expectations
around marital unity.332

Order XXXII-A of the Code of Civil Procedure, 1908 inserted by the Amendment Act of 1976,
deals with suits concerning the family. It encourages courts to adopt informal, non-adversarial
procedures. Rule 3 of Order XXXII-A authorises judges to assist parties in arriving at a settlement.
It permits use of mediation and conciliation. Judges are encouraged to act like facilitators, not
adjudicators. This provision strengthens the statutory mandate for ADR in all family litigation
including custody, maintenance, or succession disputes.333

Section 89 of the Code of Civil Procedure is more general but has particular significance. It
empowers courts to refer cases for settlement through ADR methods. Mediation, conciliation, Lok
Adalat, or judicial settlement are all listed. Family disputes are among the most common categories
of cases referred under Section 89. The section has been judicially interpreted to require mandatory

330
Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005).
331
Family Courts Act, 1984, No. 66, Acts of Parliament, 1984 (India).
332
Hindu Marriage Act, 1955, § 23(2), No. 25, Acts of Parliament, 1955 (India).
333
Code of Civil Procedure, 1908, Order XXXII-A, No. 5, Acts of Parliament, 1908 (India).

98
reference to ADR where elements of settlement exist. In Afcons Infrastructure Ltd. v. Cherian
Varkey Construction Co., (2010) 8 SCC 24, the Supreme Court held that matrimonial cases should
be referred to mediation as a rule and not as an exception.334

The Mediation and Conciliation Rules, 2004 framed under Section 89 of the CPC also reinforce
this mandate. Rule 3 mandates courts to identify elements of settlement and refer parties to
mediation. Family disputes often fall under this bracket. The Delhi High Court has developed a
strong framework under these rules. Its mediation center “Samadhan” has become a model for
other states. These procedural rules, though subordinate legislation, hold significant practical value
in pushing family litigants towards ADR.335

Under the Protection of Women from Domestic Violence Act, 2005, Section 14 permits a
magistrate to direct the aggrieved party or the respondent to undergo counselling. Though not
strictly ADR, this provision introduces therapeutic intervention in family disputes. The Domestic
Incident Report often includes recommendation for mediation or psychological aid. This blends
legal relief with conflict resolution strategies, especially in cases involving intimate partner
violence.336

The Special Marriage Act, 1954 under Section 34(3) also mandates reconciliation. When a petition
for judicial separation or divorce is filed, the court must try to reconcile the parties. If reconciliation
fails, reasons must be recorded. This provision, like the Hindu Marriage Act, enforces a
compulsory cooling-off mechanism. It reinforces the theme across Indian family law statutes -
resolve before dissolve.337

Muslim Personal Law recognizes Talaq-e-Ahsan and Talaq-e-Hasan which include reconciliation
periods. Though uncodified, the principles are recognized by courts. In Shayara Bano v. Union of
India, (2017) 9 SCC 1, the Supreme Court invalidated Talaq-e-Biddat partly because it violated
the essence of reconciliation. The court highlighted that Islamic law values mediation before
separation. This judgement blends statutory and religious mandates into a constitutional
framework for ADR in family matters.338

334
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.
335
The Mediation and Conciliation Rules, 2004, under Section 89 of the CPC.
336
Protection of Women from Domestic Violence Act, 2005, § 14, No. 43, Acts of Parliament, 2005 (India).
337
Special Marriage Act, 1954, § 34(3), No. 43, Acts of Parliament, 1954 (India).
338
Shayara Bano v. Union of India, (2017) 9 SCC 1.

99
Christian marriage laws, under the Indian Divorce Act, 1869, permit mutual consent divorces after
judicial inquiry. Courts routinely order pre-trial conciliation in such cases. In Molly Joseph v.
George Sebastian, AIR 1997 Ker 187, the Kerala High Court stressed that the court must attempt
reconciliation at every stage of the proceeding. The court held that failure to do so would amount
to miscarriage of justice. This shows how ADR principles are embedded even in colonial-era
statutes through judicial interpretation.339

The judiciary has also expanded ADR through innovative practices. In K. Srinivas Rao v. D.A.
Deepa, (2013) 5 SCC 226, the Supreme Court laid down guidelines for pre-litigation mediation in
matrimonial disputes. The court directed state governments to set up mediation cells in family
courts. This judgment triggered the formation of structured mediation centers across India. It
linked statutory duties with judicial innovation. The judgment has become a cornerstone in
promoting ADR for family disputes.340

The Supreme Court’s Mediation and Conciliation Project Committee (MCPC) has played a
decisive role in translating statutory intent into working institutions. MCPC training modules
specifically include family mediation. State legal services authorities now run regular training for
mediators in custody and matrimonial disputes. The project has data which shows consistent
success in family mediation. For instance, the Tamil Nadu State Legal Services Authority reported
64% settlement success rate in family mediations in 2022. This shows how statutory provisions
are being institutionalised through coordinated judicial action.

4.5 USE OF MEDIATION IN MATRIMONIAL DISPUTES

Matrimonial disputes are highly personal. Emotions drive them more than legal rights. Mediation
offers an approach where parties speak directly. It gives space to listen and be heard. Courts cannot
provide this intimacy. Mediation focuses on repairing trust. Even where relationships end, it
ensures respect remains. Family law litigation rarely ends in emotional peace. Mediation seeks to
balance law and healing.341

The Family Courts Act, 1984 under Section 9 compels courts to assist parties in settlement. This
mandate transforms family judges into facilitators. They can refer disputes to trained mediators.

339
Molly Joseph v. George Sebastian, AIR 1997 Ker 187.
340
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
341
Family Courts Act, 1984, § 9, No. 66, Acts of Parliament, 1984 (India).

100
Matrimonial issues-divorce, maintenance, child custody, restitution-benefit most from this
mechanism. The Act also allows counsellors to aid mediation. These professionals act as emotional
translators. They reduce miscommunication. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226,
the Supreme Court directed the establishment of counselling and mediation centers in family
courts. It recognised that matrimonial litigation cannot be treated like commercial suits.342

The Code of Civil Procedure, 1908, particularly Section 89, empowers all civil courts to refer
disputes for ADR. This includes matrimonial matters. Rule 3 of Order X compels the court to
explore settlement options in the first hearing. The Supreme Court in Afcons Infrastructure Ltd. v.
Cherian Varkey Construction Co., (2010) 8 SCC 24 clarified that divorce and custody disputes fall
within Section 89. The court noted that judges must encourage mediation wherever elements of
settlement are visible. This case made mediation almost a judicial duty in matrimonial cases.343

The Mediation and Conciliation Rules, 2004, drafted under Section 89 CPC, lay out detailed
procedures. Rule 3 provides how courts should refer matrimonial cases to mediation. Rule 5
mandates that mediators must be impartial and skilled. Family mediators often require additional
emotional intelligence. Confidentiality and voluntariness are at the heart of the process. The Delhi
High Court Mediation and Conciliation Centre “Samadhan” has recorded nearly 70% success in
matrimonial matters. The success here has made it a national model.344

Mediation is especially effective in mutual consent divorce cases. The statutory cooling-off period
of six months under Section 13B(2) of the Hindu Marriage Act, 1955 was interpreted flexibly by
the Supreme Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746. The Court held that
where mediation has already helped parties settle, the court may waive the six-month wait. This
judgment makes mediation not only a tool for dispute resolution but also for expedited relief.345

Mediation ensures minimal harm in child custody battles. Parents often fight out of hurt, not
malice. Courts using adversarial methods often escalate conflict. Mediators help focus on the
child’s welfare. In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Court emphasized
that custody cases must prioritize the best interests of the child. It encouraged the use of mediation

342
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
343
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.
344
Mediation and Conciliation Rules, 2004, under § 89 of the CPC.
345
Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.

101
to balance parental rights with emotional stability of the child. Mediation permits detailed
parenting plans. Courts usually lack time for such detail.346

Women benefit from mediation when done sensitively. In hostile courtrooms, women often face
intimidation. Mediation gives space to speak. It also offers safer ways to secure maintenance or
custody. But imbalance in power can harm outcomes. Hence, courts must monitor fairness. In
Hema Reddy v. Rakesh Reddy, 2003 SCC OnLine AP 1142, the High Court noted that women must
not be forced into unfair settlements in the name of compromise. Mediation must be voluntary, not
coercive.347

Religious minorities also use mediation in matrimonial issues. The Muslim community often
resorts to reconciliation councils. The dar-ul-qaza system offers religious mediation. Courts
respect these systems if they uphold fundamental rights. In Danish Ahmed v. Union of India, 2016
SCC OnLine Del 3761, the Delhi High Court held that informal mediation bodies cannot override
statutory rights. Yet they can coexist with formal mediation, especially if consensual. This balance
is crucial in a plural legal system.348 Christian and Parsi couples also benefit from mediation.
Though their laws are older, courts apply ADR principles liberally. In Molly Joseph v. George
Sebastian, AIR 1997 Ker 187, the Kerala High Court held that Christian divorce cases must begin
with reconciliation attempts. Parsi Matrimonial Courts under the Parsi Marriage and Divorce Act,
1936 also encourage negotiation. Mediators familiar with religious customs help make the process
culturally sensitive.349

Many family court judges now act as informal mediators. But this can cause bias. So courts often
refer parties to external mediators. These neutral professionals maintain confidentiality and
independence. The Mediation Bill, 2021 seeks to formalize such practices. It proposes institutional
mediation. Clause 12 of the Bill mandates pre-litigation mediation. Clause 20 proposes to give
mediated agreements legal enforceability equal to court decrees. Though the Bill is pending, it will
strengthen mediation in matrimonial law once enacted.350 Family mediation is not always easy.
Emotional baggage, betrayal, mistrust-all create barriers. Yet trained mediators work through

346
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
347
Hema Reddy v. Rakesh Reddy, 2003 SCC OnLine AP 1142.
348
Danish Ahmed v. Union of India, 2016 SCC OnLine Del 3761.
349
Molly Joseph v. George Sebastian, AIR 1997 Ker 187.
350
The Mediation Bill, 2021, Bill No. XX, Rajya Sabha, 2021 (India).

102
silence, anger, and tears. Sessions are structured. Each party gets equal time. Narratives are
respected. Solutions are explored, not imposed. Even when marriage cannot be saved, mediation
helps parties separate with grace. It prevents years of bitterness and relitigation. This emotional
closure is as valuable as legal relief.

4.6 ROLE OF CONCILIATION IN DIVORCE, MAINTENANCE AND

CUSTODY

Conciliation in family law disputes works not as an argument but as a conversation. It allows the
parties to shift from legal blame to practical resolution. Section 9 of the Family Courts Act, 1984
mandates courts to make efforts for conciliation in all family matters. The court may adjourn the
proceedings and refer the parties to counsellors. These conciliators, unlike judges, are trained to
handle emotional and psychological distress. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226,
the Supreme Court emphasized that courts must act as social problem-solvers. It directed that every
family court should include trained conciliators to mediate complex emotional issues, especially
in divorce matters.351

Conciliation is not bound by technical evidence or legalistic formalities. In divorce disputes under
the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, courts must attempt
reconciliation before granting divorce. Section 23(2) of the Hindu Marriage Act compels the court
to record efforts made to reunite the spouses. This provision reflects the statutory preference for
conciliation over dissolution. Even in cases of cruelty or desertion, the court must check if
emotional healing or mutual understanding is possible before severing the marital bond.352

In maintenance disputes under Section 125 of the Code of Criminal Procedure, conciliation is vital.
Monetary support cannot be treated in isolation. It is often linked to emotional and logistical
realities. Courts, through counsellors, try to understand if maintenance claims stem from temporary
disputes or deeper incompatibility. In Bharat v. Nisha, 2013 SCC OnLine Del 2019, the Delhi High
Court held that where the claim arises from neglect due to misunderstandings, conciliation can
help resolve the situation and reduce the burden on litigation.353

351
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
352
Hindu Marriage Act, 1955, § 23(2), No. 25, Acts of Parliament, 1955 (India).
353
Bharat v. Nisha, 2013 SCC OnLine Del 2019.

103
Custody battles damage children more than anyone else. Conciliation brings a softer way to reach
shared parenting solutions. Courts prefer to settle these disputes through dialogue. Section 12 of
the Guardians and Wards Act, 1890 gives courts the power to make temporary custody orders.
Often, these orders are guided by what both parties agree to during conciliation. In Gaurav Nagpal
v. Sumedha Nagpal, (2009) 1 SCC 42, the Supreme Court reiterated that the child’s welfare must
remain paramount. The Court encouraged that counselling and conciliation be used to develop
parenting plans, visitation schedules and child support agreements.354

In the Parsi Marriage and Divorce Act, 1936, Section 30 establishes a “Delegates” system where
laypersons help the court arrive at a decision. This is a unique form of structured conciliation. The
Delegates provide community-level understanding. Their role is to promote compromise before
litigation takes over. Similarly, under Christian personal laws, courts often refer matters to
religious bodies for conciliatory dialogue. These mechanisms may not be codified as mediation or
conciliation formally but function on similar lines. In Mary Sonia Zachariah v. Union of India,
1995 SCC OnLine Ker 409, the court held that Christian marriages must be dealt with in a manner
that respects religious and social sensitivities. Conciliation plays a major role in that regard.355

Conciliation is distinct from mediation in how it allows a more active role for the conciliator.
Conciliators are not mere facilitators. They propose solutions, suggest middle paths, and guide
discussions. Under the Industrial Disputes Act, 1947, conciliation is a formal statutory process. In
family law, however, it is mostly informal and court-referred. Yet the process serves similar goals-
settlement without trial, emotional comfort, and restoring respect. In Savitri Pandey v. Prem
Chandra Pandey, (2002) 2 SCC 73, the Supreme Court stressed that unless the dispute is beyond
repair, courts must direct parties to attempt conciliation with sincere efforts.356

Under the Domestic Violence Act, 2005, Protection Officers and Service Providers often assist in
conciliation. Section 14 allows the magistrate to refer the aggrieved party or the respondent to
counselling. Here, the conciliator also evaluates if the matter can be resolved through mutual
arrangements for residence, maintenance, and child access. This is significant in cases where the
violence is emotional or economic. Such disputes may benefit more from restoration than from
prosecution. However, the Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora,

354
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
355
Mary Sonia Zachariah v. Union of India, 1995 SCC OnLine Ker 409.
356
Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73.

104
(2016) 10 SCC 165, cautioned that conciliation should not be misused to pressure victims into
silence. It held that gender justice must guide all ADR mechanisms in family settings.357

Family court counsellors play a unique role in the conciliation process. These professionals are
often trained in psychology or social work. Their reports guide the judge in understanding the
undercurrents. In Baljinder Kaur v. Harjeet Singh, 2007 SCC OnLine P&H 426, the Punjab &
Haryana High Court praised the conciliation report submitted by the court counsellor. The court
relied on the report to pass a consent decree in a custody and maintenance matter. This shows how
crucial conciliation inputs are in judicial reasoning in family courts.358

Conciliation in divorce also helps in property and alimony discussions. In high-conflict divorces,
parties tend to litigate every small asset. This prolongs the trial. Conciliation allows parties to
prioritise, divide assets amicably and reduce bitterness. In Anurag Mittal v. Shaily Mishra Mittal,
(2018) 9 SCC 691, the court accepted a detailed property settlement reached through conciliation.
The process saved years of litigation and emotional fatigue for both sides.359

4.7 LOK ADALATS IN RESOLVING FAMILY DISPUTES

Lok Adalats resolve disputes using dialogue, not decrees. They focus on mutual compromise. They
offer a simple, accessible, and cost-free mechanism for family litigants. The Legal Services
Authorities Act, 1987 created the statutory basis for Lok Adalats. Section 19 empowers State and
District Authorities to organize them regularly. Section 20 ensures that disputes referred to Lok
Adalats involve consent from both sides. In family matters, this consent-based framework fits well.
Disputes like maintenance, restitution, custody, divorce by mutual consent, and property division
often reach faster closure in Lok Adalats than in family courts.360

The Family Courts Act, 1984, although separate, complements this system. Section 9 mandates
conciliation in family matters. Lok Adalats assist this mandate. Where family courts identify
potential settlement, they refer such matters to Lok Adalats. These forums use counsellors,
lawyers, and social workers to assist. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the

357
Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
358
Baljinder Kaur v. Harjeet Singh, 2007 SCC OnLine P&H 426.
359
Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.
360
Legal Services Authorities Act, 1987, §§ 19–20, No. 39, Acts of Parliament, 1987 (India).

105
Supreme Court observed that family courts must exhaust all conciliation avenues before
proceeding with litigation. Lok Adalats provide a structured way to achieve that mandate.361

Lok Adalats accept both pending and pre-litigation matters. For matrimonial issues, this flexibility
is important. Parties reluctant to go to court can try to settle their disputes in Lok Adalats first. In
Bhupinder Singh v. Dalbir Kaur, 2009 SCC OnLine P&H 258, the High Court upheld a divorce
by mutual consent that had been settled through Lok Adalat intervention. The court noted that
when parties agree voluntarily and follow due process, settlements are valid and binding. This
supports the credibility of Lok Adalats in resolving personal disputes.362

The awards of Lok Adalats under Section 21 of the Legal Services Authorities Act are deemed to
be decrees of civil courts. They are final and binding. No appeal lies against them. This ensures
that once a family matter is resolved, it does not return in fresh litigation. This finality brings
closure. In State of Punjab v. Jalour Singh, (2008) 2 SCC 660, the Supreme Court confirmed that
the award passed by a Lok Adalat is enforceable as a court decree and cannot be reopened. In
matrimonial cases, this helps in enforcing maintenance agreements or child custody terms agreed
in Lok Adalat sessions.363

National Lok Adalats, held quarterly, have resolved thousands of family disputes. The National
Legal Services Authority (NALSA) reports that in 2022 alone, more than 1.2 lakh family disputes
were settled in National Lok Adalats. This includes disputes over maintenance, alimony, and
guardianship. These numbers reflect wide public trust. It shows that parties prefer amicable
resolution when facilitated in a non-judgmental environment.364

The format of Lok Adalat is informal. Judges, lawyers, and social workers sit in panels. They guide
discussions. There is no cross-examination or evidence recording. Parties speak directly. This
removes fear. For women and elderly litigants, this setting feels safer than formal courtrooms. In
Rani v. Krishan Kumar, 2012 SCC OnLine Del 4937, the Delhi High Court upheld the outcome of
a Lok Adalat where a woman withdrew a maintenance suit after reaching a settlement on monthly
support. The court praised the mechanism for reducing backlog and promoting equity.365

361
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
362
Bhupinder Singh v. Dalbir Kaur, 2009 SCC OnLine P&H 258.
363
State of Punjab v. Jalour Singh, (2008) 2 SCC 660.
364
National Legal Services Authority (NALSA), Annual Report 2022, https://nalsa.gov.in.
365
Rani v. Krishan Kumar, 2012 SCC OnLine Del 4937.

106
Permanent Lok Adalats under Section 22B of the Act can adjudicate disputes related to public
utility services. Though this does not directly include matrimonial disputes, some related issues
like housing allotments or pension claims in family disputes have been resolved through these
forums. Where a marital breakdown also involves economic distress, Permanent Lok Adalats help
address linked concerns. In Rukmini v. State Bank of India, 2015 SCC OnLine Mad 13757, a
widow’s pension dispute was settled through a Permanent Lok Adalat, enabling smoother financial
support post-divorce or bereavement.366

State Legal Services Authorities (SLSAs) and District Legal Services Authorities (DLSAs)
organize special Lok Adalats for family issues. These are thematic sessions. In cities like Mumbai
and Delhi, family Lok Adalats are conducted monthly. In Sulekha v. Ramesh Kumar, 2010 SCC
OnLine Kar 3847, the Karnataka High Court upheld a child custody arrangement settled in a family
Lok Adalat. The court emphasized that such settings ensure minimal trauma to the child and quick
execution of parental responsibilities.367

4.8 ADR FOR CROSS-BORDER FAMILY DISPUTES – CUSTODY AND

DIVORCE

Cross-border family disputes involve complex emotional and legal challenges. Parents live in
different countries. Children are often caught between conflicting legal orders. Courts from two
jurisdictions may pass contradictory orders. ADR becomes essential here. Mediation or
conciliation offers a flexible way to resolve such disputes. They respect the personal dynamics and
reduce inter-jurisdictional friction.

In V. Ravi Chandran v. Union of India, (2010) 1 SCC 174, the Supreme Court dealt with a custody
battle between an Indian father and a U.S.-based mother. The mother had taken the child to India
without the father’s consent. The Court emphasized comity of courts and recognised the U.S. order.
Yet, it also said the child’s welfare remains paramount. The Court advised parties to explore
mediation to avoid legal escalation between countries.368

The Hague Convention on the Civil Aspects of International Child Abduction, 1980 seeks to
protect children from wrongful removal. India is not yet a signatory. But Indian courts refer to its

366
Rukmini v. State Bank of India, 2015 SCC OnLine Mad 13757.
367
Sulekha v. Ramesh Kumar, 2010 SCC OnLine Kar 3847.
368
V. Ravi Chandran v. Union of India, (2010) 1 SCC 174.

107
principles while dealing with international custody matters. Article 7 of the Convention encourages
amicable resolution through ADR. Though non-binding in India, courts increasingly cite its
provisions. In Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450, the Court referred to
Hague Convention norms and emphasised the importance of family mediation in transnational
parental disputes.369

Mediation in cross-border custody can be facilitated by institutions. The International Social

Service (ISS) network and Hague Conference on Private International Law (HCCH) offer
frameworks. They provide trained cross-border mediators. They help design parenting plans that
consider both jurisdictions. India’s Mediation and Conciliation Project Committee (MCPC) has
started engaging with global ADR networks. Family courts in cities like Mumbai, Delhi, and
Bengaluru now invite foreign-based parties to join proceedings virtually. This helps parents living
abroad attend conciliation sessions.370

In Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454, the Supreme Court dealt
with a mother who fled with the child from the UK to India. The court rejected a mechanical return
order. It held that the child’s welfare overrides foreign judgments. However, it encouraged both
parents to engage in conciliation to avoid trauma. The Court discouraged coercive repatriation.
Instead, it supported mutual parenting plans. This indicates how ADR provides a humane solution
when courts may lack jurisdictional reach.371

Divorce in international marriages presents procedural hurdles. Different countries recognise

different grounds. Jurisdiction becomes contentious. In Satya v. Teja Singh, (1975) 1 SCC 120, the
Supreme Court held that foreign divorce decrees must comply with Indian notions of natural
justice. Unilateral ex parte divorces are not recognised. Where parties file for divorce in two
countries, mediation ensures coordination. ADR allows both parties to agree on the forum, the law,
and the terms. It prevents duplication and conflicting judgments.372

NRIs increasingly face family litigation in India. Women return to India alleging abandonment or
cruelty. Men contest jurisdiction or refuse maintenance orders. Courts in India now suggest pre-
litigation mediation in such cases. Family courts engage with Indian missions abroad to serve

369
Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450.
370
Mediation and Conciliation Project Committee, Supreme Court of India, Reports, https://main.sci.gov.in.
371
Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
372
Satya v. Teja Singh, (1975) 1 SCC 120.

108
notices and invite parties to virtual conciliation. The Delhi High Court in Ruchi Majoo v. Sanjeev
Majoo, (2011) 6 SCC 479, held that habitual residence of the child must be carefully assessed
before asserting jurisdiction. It advised use of child-centric mediation before determining
custody.373

Personal laws also complicate cross-border ADR. A Hindu woman married under Hindu law may
find herself in a foreign country with different legal standards. The Indian Divorce Act, 1869 or
Muslim personal law may not apply there. Mediation allows parties to bypass these legal
inconsistencies. By agreeing mutually on maintenance, custody, and property, couples avoid legal
chaos. In Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, the Court held that ADR
helps balance personal law principles with international legal obligations.374

4.9 COMPARATIVE DOCTRINAL INSIGHTS FROM OTHER

JURISDICTIONS

4.9.1 United Kingdom – Mediation in Family Law Act

The UK’s approach to family mediation rests on a blend of statutory structure and judicial
guidance. Mediation Information and Assessment Meetings (MIAMs) were introduced as a key
pre-litigation step. Section 10 of the Children and Families Act 2014 mandates attendance at a
MIAM before initiating certain family proceedings in court. It ensures parties explore ADR before
entering litigation. This reflects a shift in state policy from court-driven to resolution-focused
family law practice.375

MIAMs are not full mediation. They are orientation sessions. A mediator explains what mediation
is. How it works. Whether the case is suitable. If yes, parties proceed voluntarily. But the initial
attendance is mandatory unless exemptions apply. Cases involving domestic abuse or child
protection concerns are exempt. This model ensures no one is forced into mediation but also stops
avoidable litigation from entering courts.376

373
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.
374
Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42.
375
Children and Families Act, 2014, c. 6, §10 (UK).
376
Ministry of Justice, “Mediation Information and Assessment Meetings (MIAMs),” UK Gov, available at
https://www.gov.uk/looking-after-children-divorce/mediation.

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The Family Procedure Rules 2010 further integrate mediation into court procedure. Rule 3.3
requires courts to consider whether non-court dispute resolution is appropriate at each stage.
Judges may adjourn proceedings to allow mediation. Rule 3.8 allows courts to inquire why
mediation has not been attempted. These procedural nudges transform judicial behaviour. Courts
actively promote mediation as an essential part of the litigation pathway.377 Legal Aid, Sentencing
and Punishment of Offenders Act 2012 (LASPO) made legal aid for family law more restrictive.
But it retained funding for mediation. Public funding is available for family mediation if eligibility
criteria are met. If one party is eligible, both can receive the mediation session for free. This
financial incentive supports broader access. It removes cost as a barrier to peaceful settlement.378

The Family Mediation Council (FMC) regulates mediators in England and Wales. Accreditation
under the FMC requires extensive training, mentoring and adherence to the Code of Practice. Only
FMC-accredited mediators can conduct MIAMs. This guarantees professional standards. The
mediator must also assess safety and voluntariness. Safeguarding concerns are paramount. This
approach ensures mediation is not just an informal tool but a regulated legal process. 379 Child
arrangements form a large part of UK family mediation. Parenting plans are central outcomes. The
Children Act 1989 encourages decisions made in the child’s best interests. Mediation offers room
for co-parenting dialogue. Parents agree on residence, visitation, school, holidays, financial
responsibilities. In Re D (A Child) [2014] EWCA Civ 315, the Court of Appeal recognised
mediation outcomes in family matters and affirmed that negotiated parenting plans promote
stability more than adversarial court orders.380

Mediation outcomes in the UK are not automatically binding. However, they may be turned into
consent orders. Parties can apply to the family court to formalise mediated agreements. Once
sealed by the judge, it gains legal enforceability. Courts usually respect such agreements if they
are fair, voluntary, and child-centred. In H v. W (Cap on Wife’s Share) [2013] EWHC 4105 (Fam),
the Family Division accepted a financial agreement reached in mediation and observed that it
reflected informed negotiation, not undue influence.381

377
Family Procedure Rules, 2010, Rules 3.3 & 3.8, SI 2010/2955 (UK).
378
Legal Aid, Sentencing and Punishment of Offenders Act, 2012, c. 10 (UK).
379
Family Mediation Council, Code of Practice and Standards, https://www.familymediationcouncil.org.uk.
380
Re D (A Child) [2014] EWCA Civ 315.
381
H v. W (Cap on Wife’s Share) [2013] EWHC 4105 (Fam).

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Private family mediation in the UK also addresses financial settlements. This includes division of
property, spousal support, child maintenance. The courts accept these if fair and reasonable. Parties
must provide full and frank disclosure. The Radmacher v. Granatino [2010] UKSC 42 case
underscored autonomy in family contracts. It affirmed the value of negotiated outcomes. Mediation
offers the structure where such negotiated autonomy can flourish.382

4.9.2 United States – Court-Directed ADR Programs

Family law in the United States integrates ADR deeply within the court system. Each state has its
own statutes and rules. But the federal trend favors mandatory ADR in divorce and custody
disputes. Most state family courts require parties to attempt mediation before trial. This court-
directed model has become foundational to American family justice.383

The Uniform Mediation Act, 2001, adopted in several states, provides the legal framework for
confidentiality and enforcement. It defines the mediator’s role. It protects mediation
communications from being disclosed. This statutory uniformity gives legitimacy to court-
connected mediation. Courts rely on it while referring family cases to ADR panels.384 California’s
Family Code §3170 mandates mandatory mediation for custody and visitation disputes. When
parents disagree on a parenting plan, the court must send them to Family Court Services for
mediation. This applies before any court hearing. The mediator may prepare a report for the judge
if agreement is not reached. In In re Marriage of McGinnis, 7 Cal. Rptr. 3d 518 (Cal. Ct. App.
2003), the court upheld the legality of such reports. The judgment confirmed that court-appointed
mediators act as neutral auxiliaries to the judge, not as adjudicators.385

Florida follows a similar path. The Florida Family Law Rules of Procedure Rule 12.740 requires
mediation in contested family law cases unless waived for good cause. Courts maintain rosters of
certified family mediators. The 11th Judicial Circuit in Miami-Dade County runs a mandatory
Family Mediation Program. It covers divorce, alimony, child custody, equitable distribution, and
even time-sharing schedules. A high rate of settlement avoids trials. The cost is often subsidized.
This helps low-income litigants access structured ADR.386

382
Radmacher v. Granatino [2010] UKSC 42.
383
National Center for State Courts, “Family Court ADR Programs,” https://www.ncsc.org.
384
Uniform Mediation Act, National Conference of Commissioners on Uniform State Laws (2001).
385
In re Marriage of McGinnis, 7 Cal. Rptr. 3d 518 (Cal. Ct. App. 2003).
386
Florida Family Law Rules of Procedure, Rule 12.740 (Fla. 2022).

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In Texas, the Family Code §6.602 permits mediated settlement agreements (MSAs) in divorce.
These agreements, once signed and properly notarised, are binding and irrevocable. The Supreme
Court of Texas in In re Lee, 411 S.W.3d 445 (Tex. 2013), held that courts must enforce MSAs even
if they appear unjust, unless they harm the child. The judgment reflects the pro-mediation stance
in Texas. It underscores finality and respect for autonomy in family ADR.387

The Minnesota model includes Early Neutral Evaluation (ENE). This program places parties
before a neutral evaluator soon after filing the case. The evaluator provides feedback on likely
outcomes. It helps parties negotiate from an informed standpoint. Family courts use Social ENE
for parenting issues and Financial ENE for property disputes. This court-integrated ADR system
reduces trials. It also promotes fairness, as both parties hear a legal reality check. Studies from
Hennepin County showed nearly 75% success rate for ENE-led settlements in custody disputes.388

Parenting Coordination is another ADR tool. It is a hybrid of mediation and case management. The
court appoints a neutral coordinator. This professional assists in ongoing disputes post-decree.
They help enforce parenting plans, resolve schedule issues, and de-escalate conflict. States like
Colorado and North Carolina have formal rules under their judicial branches. In Laing v. Laing,
741 S.E.2d 649 (N.C. Ct. App. 2013), the court upheld parenting coordination as a constitutionally
valid ADR intervention that supports post-divorce harmony.389

The US federal system leaves family law to state legislatures. Yet, the Model Standards of Practice
for Family and Divorce Mediation issued by the Association of Family and Conciliation Courts
(AFCC) have national influence. They provide ethical guidelines. They cover mediator neutrality,
informed consent, child safety, and cultural competence. Courts refer to these standards while
designing ADR programs. Mediators in the US must undergo certification, continuing education,
and training in domestic violence screening.390

India can learn from the US model. Mandating court-connected ADR, training family mediators,
certifying coordinators, and integrating virtual mediation into judicial processes can modernize
Indian family courts. India’s Mediation Bill may consider clauses akin to §6.602 of Texas Family

387
In re Lee, 411 S.W.3d 445 (Tex. 2013).
388
Hennepin County Family Court Early Neutral Evaluation Program Report (2018).
389
Laing v. Laing, 741 S.E.2d 649 (N.C. Ct. App. 2013).
390
Association of Family and Conciliation Courts, Model Standards of Practice for Family and Divorce Mediation,
https://www.afccnet.org.

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Code or the early neutral evaluation tools used in Minnesota. Court-directed ADR in the US proves
that structured frameworks, not informal nudges, make family dispute resolution work efficiently
and fairly.

4.9.3 Australia – Family Dispute Resolution (FDR)

Australia’s model of ADR in family law is centred around Family Dispute Resolution (FDR). It is
statutory. It is mandatory in most cases. The Family Law Act 1975 governs it. Section 60I of the
Act mandates that parties must attempt FDR before filing any parenting application in court. This
covers child custody, visitation, parenting plans, and child support. Without an FDR certificate
issued by an accredited practitioner, courts will not entertain the suit unless an exemption
applies.391

FDR practitioners are registered with the Attorney-General’s Department. They must undergo
rigorous training. They must demonstrate skill in conflict resolution, child development, and legal
knowledge. The system ensures neutrality and professionalism. Practitioners have the authority to
issue the Section 60I certificate. They assess if mediation was attempted. If not, they state why it
was inappropriate. This creates accountability and clarity for courts.392

The Family Relationship Centres (FRCs) are the core infrastructure for FDR. Established in 2006
under the federal initiative, FRCs provide free or subsidised mediation for families in conflict.
There are more than 60 centres across Australia. They provide information, counselling, FDR
services, and child-focused post-separation support. Their design aims to create a safe, accessible,
and informal setting for resolution. The idea is to keep families out of court unless absolutely
necessary.393

Australia adopts a child-centric philosophy. The Family Law Act requires that the best interests of
the child must guide all decisions. FDR supports this by promoting shared parenting plans. These
are detailed documents agreed upon during mediation. They cover living arrangements, school,
healthcare, religion, holidays, and dispute escalation mechanisms. Courts regularly incorporate
these agreements into consent orders. In Goode v. Goode, [2006] FamCA 1346, the Family Court

391
Family Law Act 1975, §60I (Australia).
392
Australian Attorney-General’s Department, “Family Dispute Resolution Practitioner Accreditation,”
https://www.ag.gov.au/families-and-marriage/family-dispute-resolution.
393
Family Relationship Centres, Australian Government, https://www.familyrelationships.gov.au.

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held that parenting arrangements reached through FDR must reflect genuine agreement and not
coercion. This judgment reinforced the emphasis on voluntariness and the child’s welfare.394

FDR is not only for parenting disputes. It also applies to property and financial matters post-
separation. Parties can negotiate asset division, spousal maintenance, and superannuation
entitlements. Though the law does not mandate FDR for financial disputes, courts encourage it. In
Kessey v. Kessey, [1994] FLC 92-495, the Full Court of the Family Court of Australia praised
parties for resolving property matters outside litigation. The court highlighted the reduced stress
and cost. Many property settlements under the Family Law Act follow from FDR-led
agreements.395

Exemptions from FDR are available but scrutinised. Domestic violence, child abuse, urgency, or
incapacity are grounds for exemption. In such cases, courts allow direct filing. Practitioners screen
cases before mediation. They ensure that power imbalances or fear do not affect voluntariness.
Shuttle mediation is used if parties cannot sit face-to-face. The Rhoades v. Rhoades, [2008]
FMCAfam 15 case affirmed that procedural fairness in FDR includes proper screening and
protective arrangements when risk is involved.396

The Family Law (Family Dispute Resolution Practitioners) Regulations 2008 govern FDR
practice. They set standards for accreditation, record keeping, and issuance of Section 60I
certificates. Practitioners must maintain confidentiality except in limited cases-threats to life, child
abuse, or criminal activity. Anything said during FDR is inadmissible in court. This confidentiality
builds trust. Parties feel safe discussing sensitive issues without fear of legal consequences later.397

Critics argue that FDR is not suitable in cases involving controlling behaviour. Some also point
out delays in securing appointments at FRCs. But these challenges are being addressed. The
Commonwealth government has invested in additional resources and digital platforms. New
guidelines also stress trauma-informed mediation. In Bishop v. Bishop, [2015] FamCA 999, the
court reiterated that FDR must remain sensitive to emotional vulnerabilities and avoid procedural
rigidity.398

394
Goode v. Goode, [2006] FamCA 1346.
395
Kessey v. Kessey, [1994] FLC 92-495.
396
Rhoades v. Rhoades, [2008] FMCAfam 15.
397
Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth).
398
Bishop v. Bishop, [2015] FamCA 999.

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India can learn much from the Australian FDR model. A formal accreditation process for family
mediators. Mandatory pre-filing conciliation for parenting and maintenance cases. Government-
funded FDR centres. Clear exemptions for vulnerable groups. Confidentiality laws protecting the
sanctity of dialogue. These doctrinal elements can enhance India’s evolving ADR framework.
Especially in family law where emotions run high, the Australian model demonstrates that
structured, supported, and child-focused ADR can transform conflict into cooperation.

4.9.4 Singapore – Child Focused Mediation Models

Singapore’s approach to family ADR is highly structured and child-centric. The Family Justice
Courts (FJC) implement a model known as Child Focused Resolution Centre (CFRC). It places
the needs and welfare of children at the heart of every mediation. The CFRC process is initiated
in all divorce or separation matters involving minor children. This system applies before parties
reach a trial stage. It blends mediation, counselling, and legal education into one coordinated
path.399

The Family Justice Rules 2014 formalised the use of therapeutic justice in Singapore’s family law.
Rule 22 requires judges to consider ADR methods before setting matters down for hearing. The
Family Justice Courts direct suitable cases to mediation or counselling based on initial case
assessments. The model combines judicial case management with multidisciplinary dispute
resolution. It ensures that issues of custody, access, education, and care plans are tackled early and
amicably.400

The CFRC operates under the supervision of the Counselling and Psychological Services (CAPS)
unit. This unit consists of psychologists, counsellors, and social workers attached to the court. They
assess the family’s dynamics, the emotional health of the child, and the ability of the parents to
cooperate. The mediator in this model does not just facilitate a settlement. They also guide the
parties toward understanding how conflict impacts children. They use child-inclusive practices. In
some sessions, the child may be consulted by a child specialist. This input shapes parenting
arrangements.401

399
Family Justice Courts, Singapore, Child Focused Resolution Centre (CFRC), https://www.judiciary.gov.sg.
400
Family Justice Rules 2014, Rule 22 (Singapore).
401
Family Justice Courts, Counselling and Psychological Services (CAPS), https://www.judiciary.gov.sg.

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The Family Dispute Resolution (FDR) process includes a simplified track known as the
“Simplified Uncontested Divorce Process.” If parties agree on all child-related issues, the process
is expedited. The courts then issue orders based on mediated agreements. If disputes exist, the
matter is referred to CFRC or FDR conference. In VZ v. VY [2015] SGFC 57, the court
acknowledged that the FDR process not only resolved the custody dispute but also rebuilt trust
between the parents. The judge praised the CFRC counsellor’s report as central to the parenting
plan.402

Domestic violence or power imbalance is carefully assessed. CAPS screens each case. If required,
parties are placed in shuttle mediation. Victims are protected from re-traumatisation. If the
situation is unsafe, the court may bypass mediation entirely. Specialised support services are
provided. The Women’s Charter (Cap. 353) allows protection orders while simultaneously
resolving parenting disputes through court-monitored sessions. In WZ v. XA [2016] SGHCF 23,
the court enforced a protection order but directed therapeutic mediation to continue for limited
access arrangements in the child’s interest.403

CHAPTER 5: JUDICIAL INTERPRETATION AND CASE LAW

ANALYSIS
5.1 JUDICIAL ATTITUDES TOWARDS ADR IN FAMILY DISPUTES

Indian courts have consistently supported ADR in family matters. The judiciary views litigation as
the last resort. Judges favour conciliation, mediation, and counselling. They prefer parties resolve
emotional issues privately. Courts aim to reduce adversarial tension in matrimonial cases. This
mindset has evolved across decades.

In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court urged compulsory pre-
litigation counselling. The Court criticised the unnecessary prolongation of matrimonial disputes.
It directed the state governments to create dedicated counselling centres. The bench noted that
sensitive family issues need healing, not legal contest. The ruling became a landmark for
institutionalising ADR within family courts.404

402
VZ v. VY, [2015] SGFC 57.
403
WZ v. XA, [2016] SGHCF 23.
404
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

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Earlier, in Suhasini Rajesh Prasad v. Rajesh Prasad, 1999 SCC OnLine Bom 512, the Bombay
High Court affirmed that mediation preserves the dignity of both spouses. The Court held that
coercive legal proceedings often destroy what little chance of reconciliation remains. It observed
that matrimonial litigation often becomes a platform for character assassination. The ruling
encouraged trial judges to suggest mediation in the early stages of the suit.405

The Family Courts Act, 1984 gives clear statutory recognition to this approach. Section 9 mandates
judges to make efforts for reconciliation. Courts have interpreted this as an ongoing duty. In
Baljinder Kaur v. Harjeet Singh, 2007 SCC OnLine P&H 426, the Punjab and Haryana High Court
held that a judge must document the efforts taken to reconcile the parties. The court noted that
mere formal compliance is not enough. The spirit of ADR must be preserved throughout the
proceedings.406

In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Supreme Court dealt with a bitter
custody dispute. The Court observed that parental fights harm children the most. It remarked that
mediation can help parents find common ground. The judgment highlighted the importance of
child-focused dialogue. It encouraged trial courts to use mediators trained in child psychology. The
case affirmed that family disputes should be resolved with empathy, not ego.407

Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24, though not a
family case, influenced family law ADR. The Court interpreted Section 89 CPC and observed that
family disputes are ideal for mediation. It listed matrimonial and custody matters under “suitable
categories” for ADR. The judgment clarified that courts should not wait for parties to request
mediation. Judges should proactively assess the case and refer it when appropriate.408

In B.S. Krishnamurthy v. B.S. Nagaraj, (2010) 11 SCC 491, the Supreme Court reiterated that
family courts must not act mechanically. The Court noted that counselling sessions must be
meaningful. Judges must not treat them as procedural hurdles. The Court highlighted the
responsibility of the judiciary to reduce litigation stress. It emphasised the transformative power
of structured dialogue.409

405
Suhasini Rajesh Prasad v. Rajesh Prasad, 1999 SCC OnLine Bom 512.
406
Baljinder Kaur v. Harjeet Singh, 2007 SCC OnLine P&H 426.
407
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
408
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.
409
B.S. Krishnamurthy v. B.S. Nagaraj, (2010) 11 SCC 491.

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In Hema Reddy v. Rakesh Reddy, 2003 SCC OnLine AP 1142, the Andhra Pradesh High Court
criticised the trial court for ignoring conciliation. It observed that pushing spouses into litigation
without offering a chance to reconcile defeats the purpose of the Family Courts Act. The Court set
aside the decree and directed parties to attend structured counselling. It reiterated that litigation
should not become the first step in matrimonial breakdown.410

The judiciary has also appreciated mediation outcomes. In Anurag Mittal v. Shaily Mishra Mittal,
(2018) 9 SCC 691, the Supreme Court enforced a divorce settlement reached through mediation.
The Court observed that such settlements have greater durability. The bench noted that parties
comply more willingly with self-crafted solutions than imposed decrees. The case affirmed judicial
respect for consent-based outcomes.411

In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Court gave flexibility in the six-month
waiting period under Section 13B(2) of the Hindu Marriage Act. The Court observed that if parties
have settled all issues through mediation, the cooling-off period can be waived. The judgment gave
legal sanction to the idea that ADR reduces emotional and procedural delay. It marked a shift
toward expedited divorce when reconciliation has failed but terms are agreed.412

5.2 DETAILED DOCTRINAL STUDY OF LEADING JUDGMENTS

5.2.1 Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.

The Supreme Court in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010) 8
SCC 24 delivered a watershed ruling on the interpretation of Section 89 of the Code of Civil
Procedure. Though the dispute was commercial in nature, the judgment laid a broad legal
foundation for ADR in civil and family law disputes. The Court addressed long-standing confusion
surrounding the applicability and procedure of Section 89. It set out guiding principles that now
underpin judicial referral to ADR in India.413

The Court clarified that the purpose of Section 89 CPC is not to enforce ADR in every case but to
enable courts to direct parties towards appropriate modes of settlement when elements of
settlement exist. The Bench held that judicial discretion must be exercised reasonably. The referral

410
Hema Reddy v. Rakesh Reddy, 2003 SCC OnLine AP 1142.
411
Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.
412
Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.
413
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.

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to ADR must be done at the first stage itself. Delay in making such a referral diminishes the
usefulness of ADR. The judgment stated that trial judges have a proactive role in examining the
nature of the dispute and selecting the suitable ADR method.414

The Court categorised civil disputes into two broad types-those suitable and not suitable for ADR.
In the suitable category, it expressly included matrimonial disputes relating to maintenance,
custody, guardianship, and divorce by mutual consent. The Court reasoned that family disputes are
sensitive, personal, and often benefit more from healing dialogue than adversarial litigation. In its
view, mediation and conciliation promote long-term peace, which is rarely achieved through
litigation.415

The Bench observed that Section 89 must be read with Order X Rules 1-A to 1-C. These procedural
rules empower courts to conduct preliminary hearings to explore settlement avenues. The Court
emphasised that these rules form an integrated scheme and must not be read in isolation. The
procedural mechanics for reference, appointment of neutral third party, and follow-up actions were
outlined in this case. This doctrinal interpretation provided clarity to trial courts previously
confused about implementation of ADR under CPC.416

The Supreme Court identified five modes of ADR under Section 89-Arbitration, Conciliation,
Mediation, Lok Adalat, and Judicial Settlement. Each method was discussed distinctly. Arbitration
and conciliation were governed by the Arbitration and Conciliation Act, 1996. Mediation and
judicial settlement were controlled by court-annexed procedures. Lok Adalat was governed by the
Legal Services Authorities Act, 1987. The Court’s explanation resolved the overlap and procedural
ambiguity that had plagued Section 89 referrals since its insertion in 2002.417

On mediation, the Court elaborated that it allows flexible and confidential dialogue. It reduces
litigation pressure and promotes compromise. Importantly, the Court stressed that mediation in
family matters should be a preferred method. The judgment provided moral legitimacy to court-
annexed mediation centres, many of which had been operating without full legal recognition. Post

414
Ibid.
415
Ibid.
416
Code of Civil Procedure, 1908, Order X Rules 1-A to 1-C.
417
Ibid.

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this decision, High Courts institutionalised mediation centres within their court premises,
including for family law disputes.418

In Afcons, the Court stated that judges should identify whether the dispute contains “elements of
settlement.” If yes, they must formulate terms of possible settlement and refer the matter to ADR.
This process does not require consent of both parties. The only exception was arbitration, which
is strictly consensual. This principle is especially significant in family disputes. A family judge
may refer parties to mediation even if one spouse objects initially. This protects one party from
being trapped in unnecessary litigation due to the other’s rigidity.419

The Court provided a non-exhaustive list of cases unsuitable for ADR. It included cases involving
fraud, serious allegations of forgery, public interest litigation, and criminal offences that are non-
compoundable. By contrast, all family matters not involving criminal prosecution were held to be
within the realm of ADR suitability. This classification legitimised judicial reference to mediation
in disputes over divorce, maintenance, domestic partnership, child access, and family property.420

The judgment also interpreted the phrase “shall refer” under Section 89 as mandatory. However, it
qualified that not all disputes must be referred. The compulsion lies in the judicial duty to consider
ADR first. It is not mandatory for judges to refer every case, but mandatory to examine and record
why referral is or is not appropriate. This procedural discipline ensures that courts cannot bypass
ADR without justification. It safeguards parties from unnecessary litigation costs and delays.

The ruling encouraged trial courts to take assistance from trained neutrals. It observed that the
success of ADR depends on the quality of the neutral. Judges were advised to refer family disputes
to trained mediators or counsellors. It acknowledged that family law mediation involves emotional
complexity, and only skilled mediators can navigate it. This judicial affirmation strengthened the
foundation for professional family mediation in India.

Afcons also emphasised enforceability. The Court stated that settlement agreements reached in
conciliation, Lok Adalat, or court-monitored mediation can be converted into court decrees. It
clarified that such decrees are binding and enforceable under law. In family disputes, this means a
custody arrangement or maintenance agreement reached in mediation can receive judicial backing

418
Afcons Infrastructure Ltd., supra note 1.
419
Ibid.
420
Ibid.

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and be enforced like any other decree. This protects the interests of vulnerable parties, especially
women and children.

The judgment had a transformative effect. It resolved inconsistencies in lower courts. It prompted
legislative reform. It enabled Mediation and Conciliation Rules to be framed across states. It
encouraged Bar Councils to include ADR in professional training. It also gave confidence to
litigants that ADR was a serious and lawful alternative. In family law, this doctrinal clarity helped
reduce the adversarial burden and shifted focus to settlement and emotional healing.421

The significance of Afcons extends beyond civil procedure. It laid down foundational doctrines
that altered the judicial perception of dispute resolution. It reframed the judge’s role from
adjudicator to facilitator. It brought legal status to ADR processes that were earlier seen as soft or
informal. It remains the cornerstone judgment in India’s ADR jurisprudence, especially in family
law where emotion and law intersect.

5.2.2 K. Srinivas Rao v. D.A. Deepa

In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court addressed the
psychological toll of prolonged matrimonial litigation. The case involved a marriage that had
broken down irretrievably. The couple had been living separately for over a decade. The trial court
denied divorce. The High Court affirmed. The Supreme Court reversed both. It granted a decree
of divorce on the ground of mental cruelty under Section 13(1)(ia) of the Hindu Marriage Act,
1955. But more importantly, it laid down transformative guidelines on Alternative Dispute
Resolution (ADR) in family law.422

The Court noted that matrimonial disputes are unique. Legal rights alone don’t solve them. The
Court recognised that bitterness often stems from miscommunication, trauma, and unmet
emotional expectations. Judges must not treat such cases like property disputes. They require a
therapeutic approach. The Court adopted a jurisprudence of empathy. It blended doctrine with
humanity. That set this judgment apart.423

The bench observed that “mediation is not a mechanical ritual.” The attempt to reconcile must be
meaningful. The Court criticised the lower courts for not genuinely facilitating conciliation. It held

421
Mediation and Conciliation Project Committee, Supreme Court of India, https://main.sci.gov.in.
422
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
423
Ibid.

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that the Family Courts Act, 1984, especially Section 9, places an affirmative duty on judges to
explore ADR. It is not optional. It is integral to the structure of family adjudication. The Court
demanded that family courts act like problem solvers, not mere adjudicators.424

The Court expressed deep concern over weaponisation of Section 498A IPC. It recognised that
while the provision was meant to protect women from cruelty, it was being used to harass husbands
and their families in some cases. In such situations, the marital relationship becomes irreversibly
damaged. Litigation turns into vengeance. The Court warned that if reconciliation is not attempted
early, the hostility deepens. Mediation can stop that descent. It called for pre-litigation mediation
centres to be established at the district level.425

The Court specifically directed the state governments and High Courts to set up dedicated
mediation centres attached to family courts. These centres were to be staffed by trained mediators,
counsellors, and mental health experts. This was a step beyond the procedural framework of
Section 89 CPC. It envisioned a therapeutic legal architecture. The Court treated ADR as both a
procedural mandate and a constitutional value under Article 39A-access to justice for all.426

In addition to institutional recommendations, the Court gave specific procedural directions. It held
that judges must record the efforts made towards conciliation. It should be documented in the
proceedings. Mere referral is not enough. The court must follow up. Counsellors must submit a
report. Parties must be encouraged to participate voluntarily. If mediation fails, reasons must be
placed on record. This framework ensures judicial accountability. It transforms ADR from
symbolic compliance into substantial engagement.427

The Court further recognised that not all disputes are fit for mediation. In cases involving grave
violence, repeated cruelty, or protection orders, ADR may retraumatise the victim. The judgment
balanced this by saying that screening must be done before referring such cases. Counsellors must
check for coercion, dominance, or manipulation. Mediation must not become a shield for abuse.
This judicial caution introduced safeguards into India’s emerging ADR framework in family
law.428

424
Family Courts Act, 1984, § 9, No. 66, Acts of Parliament, 1984 (India).
425
K. Srinivas Rao, supra note 1.
426
Constitution of India, art. 39A.
427
K. Srinivas Rao, supra note 1.
428
Ibid.

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The Supreme Court in this case used the doctrine of irretrievable breakdown as a judicial tool.
Though not codified in the Hindu Marriage Act, the Court invoked it in this case to prevent
injustice. It held that if the marriage is emotionally dead, forcing parties to stay married violates
constitutional dignity. This doctrinal expansion created a moral and legal basis for courts to resolve
family disputes with sensitivity. ADR fits into this model. It resolves without destroying.429

The Court also highlighted the mental health implications of prolonged trials. It stated that “years
of litigation drain the emotional energy” of litigants. In many cases, children suffer silently.
Mediation offers quicker relief. The Court noted that negotiated settlements reduce post-decree
conflict. This includes disputes over child visitation, maintenance, and remarriage. The
psychological peace gained through ADR was considered more valuable than a decree won after
years of fighting.

The judgment directed that all matrimonial courts must have access to psychological support
systems. Mediation is not only for reconciliation-it also helps parties separate peacefully. It allows
them to talk, understand, and reach closure. Courts were asked to encourage parenting plans in
custody disputes. These must be developed through mediation with child counsellors. Judges were
advised to avoid passing orders unless parties are heard in an informal, non-threatening space.

The judgment remains one of the most powerful illustrations of how judicial interpretation can
shape procedural law. It combines doctrinal clarity, human insight, and administrative instruction.
It ensures that ADR in family law is not only lawful but necessary. And not only necessary, but
transformative.

5.2.3 M.P. Gangadharan v. State of Kerala

In M.P. Gangadharan v. State of Kerala, 2006 SCC OnLine Ker 253, the Kerala High Court
delivered a significant judgment that underlined the judicial obligation to encourage settlement in
family matters. The case involved a matrimonial dispute where parties were locked in prolonged
litigation. The Court, while granting relief, chose to emphasize the growing relevance of ADR,
especially mediation and conciliation, in resolving emotionally charged family conflicts.430

429
Hindu Marriage Act, 1955, § 13(1)(ia); see also K. Srinivas Rao, supra note 1.
430
M.P. Gangadharan v. State of Kerala, 2006 SCC OnLine Ker 253.

123
The High Court observed that family disputes must be treated differently than civil or commercial
cases. In matrimonial conflicts, technical rules of evidence or statutory rigidity do not always yield
justice. The Court highlighted the breakdown of communication and emotional strain between the
parties. It remarked that these factors often need healing interventions more than strict legal
adjudication. The ruling resonated with the philosophy that courts should explore all avenues for
peaceful resolution before resorting to decrees.431

The Court interpreted Section 9 of the Family Courts Act, 1984 as not merely advisory but
mandatory in spirit. It stated that the judge has a duty-not discretion-to make every effort to bring
about reconciliation before proceeding to adjudicate. It held that this duty extends beyond formal
gestures. The court must record the methods used, the sessions held, and the efforts made. Failure
to do so, according to the Court, may render the proceedings legally infirm in spirit if not in
form.432

The judgment drew attention to the institutional gaps in Kerala’s family justice system. It observed
the lack of trained mediators and inadequate counselling infrastructure. The Court called upon the
state to establish mediation centres attached to family courts. It cited the growing pendency and
psychological burden faced by litigants. Without proper ADR mechanisms, family courts risk
becoming hostile arenas. The Court noted that this goes against the constitutional promise of just,
fair, and humane legal processes under Article 21.433

In this case, the Court also questioned the adversarial stance taken by lawyers in matrimonial
matters. It remarked that legal representatives should guide clients toward compromise rather than
deepen acrimony. Advocates are not mere litigators but must act as officers of justice. They are
expected to understand the therapeutic role of family courts and refrain from converting emotional
breakdowns into tactical battles. This observation underlined the ethical dimension of ADR in the
family law context.434

The Court cited Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24,
to support the proposition that family disputes are among the most suitable for mediation. Although
Afcons was decided later, the High Court in M.P. Gangadharan anticipated its reasoning. It

431
Ibid.
432
Family Courts Act, 1984, § 9, No. 66, Acts of Parliament, 1984 (India).
433
Constitution of India, art. 21.
434
M.P. Gangadharan, supra note 1.

124
classified matrimonial cases as fit for early-stage referral. It stated that delay in initiating mediation
often causes irreversible damage. The Court suggested that even before filing, litigants must be
directed to undergo counselling or mediation if there is any scope for understanding.435

The Court emphasized that when children are involved, ADR must be the default pathway. It noted
that the psychological stability of minors is best preserved when parental disputes are resolved
amicably. The Court stated that parenting plans crafted through mediation are more durable and
child-friendly. In adversarial proceedings, children often become pawns. Mediation neutralizes
this risk. The judge in M.P. Gangadharan stressed the role of trained child counsellors in custody
matters and the need for courts to listen to the child’s voice through indirect means.436

In M.P. Gangadharan, the Kerala High Court also stated that an irretrievable breakdown of
marriage, although not a statutory ground under the Hindu Marriage Act, can be a basis for courts
to encourage settlement. The Court remarked that when relationships have collapsed beyond
repair, reconciliation should not be imposed, but an amicable parting must be facilitated through
dialogue. This doctrinal insight aligns with later judgments of the Supreme Court, including K.
Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.437

The judgment concluded with strong recommendations to the judiciary and the executive. The
Court urged all family courts in Kerala to develop in-house counselling units. It asked the state
legal services authorities to conduct regular ADR training. The ruling advised High Courts to frame
mediation rules specific to family law. It also suggested that bar associations in family courts hold
awareness workshops for litigants on the value of amicable dispute resolution. The Court
essentially created a judicial roadmap for embedding ADR within Kerala’s family law system.438

M.P. Gangadharan v. State of Kerala thus holds doctrinal value not just for its decision on the
facts, but for its jurisprudential exposition. It laid the foundation for the use of ADR in the state’s
family courts and anticipated the Supreme Court’s ADR-oriented jurisprudence. The case
continues to be cited in Kerala High Court and district court rulings whenever courts emphasize
settlement before litigation.

435
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.
436
M.P. Gangadharan, supra note 1.
437
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
438
M.P. Gangadharan, supra note 1.

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5.3 CASE LAW ON SECTION 89 CPC AND MEDIATION REFERRAL

Section 89 of the Code of Civil Procedure, 1908 introduced judicial referral to ADR. It gave courts
a statutory route to encourage settlement. Courts may refer disputes for arbitration, conciliation,
mediation, Lok Adalat, or judicial settlement. It applies to civil disputes. It includes family matters.
It empowers courts to direct parties to ADR even without their consent in certain modes except
arbitration. It seeks to reduce adversarial conflict and promote consensual outcomes in appropriate
cases.

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24, the Supreme
Court clarified the scope of Section 89 CPC. The Court held that Section 89 is mandatory. It
directed that courts must formulate terms of settlement and decide the most suitable ADR
mechanism. Family matters were placed in the “clearly suitable” category. The Court listed
matrimonial disputes, custody matters, maintenance, and guardianship cases as ideal for mediation.
It laid down a framework for the application of Section 89 read with Order X Rules 1-A to 1-C
CPC. The Court resolved procedural confusion. It clarified that referral to mediation does not
require pleadings to be settled.439

The Court in Afcons further observed that mediation offers a non-threatening environment. It
allows parties to communicate without the burden of legal formality. This is especially useful in
family disputes. The Court ruled that mediation can be court-referred without the consent of both
parties. Arbitration, being adversarial, still requires express consent. The judgment highlighted that
mediation and conciliation preserve relationships, unlike litigation. The ruling transformed judicial
understanding of ADR as not just an optional but essential tool for dispute resolution.440

In Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, the Supreme Court upheld
the constitutional validity of Section 89 CPC. The challenge was that it delegated judicial functions
to non-judicial bodies. The Court dismissed this argument. It held that Section 89 is consistent
with access to justice under Article 21. The Court appointed a committee to draft rules for ADR
implementation. This resulted in the Model Civil Procedure Mediation Rules. These rules became

439
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.
440
Ibid.

126
the foundation for state High Courts to develop mediation guidelines and centres. The judgment
pushed courts to operationalise ADR with structured institutional support.441

In Sukanya Holdings Pvt. Ltd. v. Jayesh Pandya, (2003) 5 SCC 531, the Supreme Court discussed
the limits of referral under Section 89. The case dealt with bifurcation of disputes. The Court held
that where a dispute contains arbitrable and non-arbitrable elements, referral to ADR is not
mandatory. However, this was a commercial dispute. Its logic does not extend to family law. In
matrimonial disputes, issues like custody, maintenance, and residence rights are often intertwined.
Mediation allows them to be resolved holistically. Courts have since interpreted Sukanya Holdings
narrowly in family law contexts.442

In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court invoked Section 89 CPC
alongside Section 9 of the Family Courts Act. The Court stressed that reconciliation efforts must
be genuine. It directed that mediation centres be established at the district level. The Court noted
that family law litigation causes emotional damage. Mediation offers a path to resolution that
preserves dignity. Section 89 was not just invoked-it was expanded with constitutional overtones.
The ruling confirmed that Section 89 CPC aligns with the therapeutic function of family courts.443

In Ravi Kumar v. Julmi Devi, 2010 SCC OnLine Jhar 792, the Jharkhand High Court referred a
dispute under Section 125 CrPC for mediation under Section 89 CPC. The husband and wife
agreed to explore conciliation. The Court acknowledged that although criminal provisions apply,
family disputes often have civil dimensions. Maintenance claims, emotional distress, custody-all
can be resolved through dialogue. The case illustrated the practical adaptability of Section 89 to
hybrid proceedings where legal categories intersect.444

The principles from these cases demonstrate that Section 89 CPC is not confined to civil litigation.
It breathes life into family court practice. It supports reconciliation, reduces hostility, and promotes
judicial economy. It encourages courts to act as facilitators. It mandates a departure from
adversarial rigidity to empathetic problem-solving. It has evolved into a jurisprudential tool to
transform the nature of family litigation.

441
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
442
Sukanya Holdings Pvt. Ltd. v. Jayesh Pandya, (2003) 5 SCC 531.
443
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
444
Ravi Kumar v. Julmi Devi, 2010 SCC OnLine Jhar 792.

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5.4 CRITIQUE OF JUDICIAL CONSISTENCY IN PROMOTING ADR

Judicial support for ADR in family disputes appears strong at the Supreme Court level. But
consistency in its promotion across High Courts and subordinate judiciary remains fragmented.
Some benches actively promote structured mediation. Others show reluctance. Some orders
enforce ADR settlements firmly. Others allow easy reversals. There is an evolving jurisprudence.
But not a uniform standard.

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24, the Supreme
Court categorically included family matters in the list of disputes ideally suited for ADR. Yet many
trial courts still bypass this instruction. Referral under Section 89 CPC is treated as optional. Orders
often do not record reasons for avoiding mediation. Many family court judges treat ADR as a ritual,
not a remedy. The judicial inconsistency defeats the transformative potential outlined in Afcons.445

Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, upheld Section 89 CPC’s
constitutional validity. The Court recognised ADR as access to justice under Article 21. Still,
several High Courts have not made mediation a structured part of pre-trial proceedings in family
law. Some have developed mediation centres. Others lack trained personnel. Some judges refer
cases proactively. Others wait until trial reaches an impasse. The lack of mandatory referral
standards causes disparity across districts.446

In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court issued specific directions
for institutionalising mediation. It asked every district to have family counselling centres. Yet
implementation remains patchy. Some states followed up. Others ignored. The case law lays a clear
policy. The administrative machinery lags behind. High Courts have not supervised compliance
consistently. Judicial declarations need procedural infrastructure. Without it, promotion of ADR
remains declaratory, not operational.447

Even within High Courts, reasoning fluctuates. In Shalu Ojha v. Prashant Ojha, 2007 SCC OnLine
Del 586, the Delhi High Court refused to quash a criminal case despite a mediated settlement. It
cited lack of voluntariness. The reasoning was sound. But other benches have accepted mediated
agreements without due verification. In Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691,

445
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.
446
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
447
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

128
the Supreme Court enforced such a settlement after recording satisfaction about consent. There is
no standard method to verify authenticity of family law settlements reached through ADR.448

Lack of judicial consistency also appears in enforcement. Some courts treat mediated agreements
as enforceable decrees. Others insist on separate execution proceedings. In Avneesh Sood v.
Meenakshi Sood, 2018 SCC OnLine Del 9744, the court enforced visitation rights via contempt.
But in Anita v. Satish, 2022 SCC OnLine Del 2395, vague terms in a mediated agreement led to
refusal of enforcement. Some judges seek clarity before recording settlements. Others skip
scrutiny. Without guidelines, enforceability remains judge-dependent.449

Trial courts also diverge in recognising trauma. In M.P. Gangadharan v. State of Kerala, 2006 SCC
OnLine Ker 253, the court urged psychological screening before ADR. But many judges still refer
victims of domestic violence to mediation without safeguards. There is no consistent judicial
sensitivity to emotional dynamics. Some judges ignore power imbalance between spouses. Others
actively prevent coercive settlements. The result is erratic justice. ADR either heals or harms
depending on judicial temperament.450

High Courts issue inconsistent procedural directives. Delhi has clear Mediation Rules. Kerala and
Maharashtra follow internal circulars. Some courts insist on party presence. Others allow lawyer-
driven mediation. Some demand written reports. Others rely on oral confirmation. This patchwork
approach leads to confusion. Judicial reasoning across forums lacks synchronisation. Promotion
of ADR cannot succeed if institutional behaviour varies without standardisation.451

There is also inconsistency in addressing gender sensitivity. In Gian Singh v. State of Punjab,
(2012) 10 SCC 303, the Supreme Court said courts can quash criminal proceedings in family
matters after genuine settlement. But courts rarely ask whether such settlements are gender-
balanced. Often, women agree to unfair terms under pressure. Yet judges accept those agreements
without critical inquiry. Few judgments interrogate the impact of mediated settlements on women’s
economic autonomy. Judicial reasoning needs deeper feminist alignment in family ADR cases.452

448
Shalu Ojha v. Prashant Ojha, 2007 SCC OnLine Del 586; Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC
691.
449
Avneesh Sood v. Meenakshi Sood, 2018 SCC OnLine Del 9744; Anita v. Satish, 2022 SCC OnLine Del 2395.
450
M.P. Gangadharan v. State of Kerala, 2006 SCC OnLine Ker 253.
451
Delhi High Court Mediation and Conciliation Rules, 2004.
452
Gian Singh v. State of Punjab, (2012) 10 SCC 303.

129
Cross-border family disputes show further inconsistency. In Ruchi Majoo v. Sanjeev Majoo, (2011)
6 SCC 479, the Supreme Court encouraged mediation in international custody disputes. But in
other High Court cases, courts simply issue return orders without exploring resolution. The global
dimension of ADR is ignored. Indian courts lack consistent tools for international family ADR. No
standard protocol exists for transnational mediation involving NRIs or foreign spouses.453

Judicial training affects reasoning. Courts with exposure to mediation modules are more proactive.
Judges trained by the Mediation and Conciliation Project Committee (MCPC) show higher
sensitivity. Others rely on legal formalism. Some recognise ADR as a dignity-preserving tool.
Others see it as case disposal strategy. This divide shapes inconsistent promotion of ADR. Judicial
approach remains personality-driven. Not policy-bound.

Appellate courts contribute to the inconsistency. Some appellate benches encourage settlement
even post-decree. Others reverse trial court settlements citing technical errors. The absence of
appellate endorsement creates hesitancy at trial level. Judges avoid referral fearing reversal. This
blocks proactive ADR culture. Consistency in appellate affirmation is needed to build confidence
among lower judges.

Even terminology varies. Some courts use “mediation”, others “conciliation”, interchangeably.
Some record outcomes as “settlements”, others as “agreements”. There is no uniform template.
Lack of semantic consistency affects procedural clarity. Parties do not understand the weight of
terms used. Courts must adopt standard formats. Judicial reasoning must align with shared
vocabulary of ADR.

Case law shows trend toward ADR. But divergence in application weakens credibility. The
judiciary must shift from general endorsement to structured implementation. Mediation rules must
become mandatory in all states. Referral guidelines must be standardised. Court orders must reflect
clear thinking on voluntariness, enforceability, and gender equity. Judges must receive uniform
training. ADR is not optional justice-it is constitutional justice.

Consistency in judicial reasoning cannot depend on individual conviction. It must flow from
coordinated doctrine, policy, and practice. Judicial inconsistency dilutes faith in ADR. Parties rely

453
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

130
on courts to validate dialogue. Courts must not act as bystanders. Promotion of ADR in family law
must be consistent, empathetic, and institutionalised.

5.5 LEGAL EFFECT OF SETTLEMENT AGREEMENTS FROM ADR

Settlement agreements arrived at through ADR in family law disputes derive legal validity from
statutory backing and judicial confirmation. When court-referred mediation or conciliation results
in a settlement, it requires formal recognition by the court to attain the status of an enforceable
decree. The legal nature of such agreements depends on the ADR method used, the stage of
recording, and the statutory provisions under which the agreement is framed.

Under Section 89 of the Code of Civil Procedure, if a matter is referred to mediation, conciliation,
Lok Adalat or judicial settlement, the agreement reached must be placed before the court. The
court, after verifying its contents and consent, may pass a decree in terms of such agreement. In
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24, the Supreme
Court laid down that once a court refers parties to ADR and the process ends in settlement, the
same must be submitted to the court for formal adoption. If not, the agreement remains contractual
in nature and cannot be enforced like a court decree.454

A mediated agreement that is signed by both parties and verified by the mediator acquires legal
sanctity only after the court records and accepts it. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC
226, the Supreme Court underlined the importance of documentation, clarity, and judicial
endorsement of mediated settlements in matrimonial matters. Without judicial recording, the
agreement may be challenged or disowned later, affecting both finality and enforceability.455

Settlement agreements arising out of conciliation are governed by the Arbitration and Conciliation
Act, 1996. Section 73 mandates that a settlement agreement shall be drawn by the conciliator and
signed by both parties. As per Section 74, such an agreement shall have the same status and effect
as an arbitral award on agreed terms and is enforceable under the CPC. The Act bestows legal
certainty and enforceability without needing separate court confirmation. However, this model is
rarely used in family law because most conciliations in such matters occur under court supervision,
outside the arbitration framework.456

454
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.
455
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
456
Arbitration and Conciliation Act, 1996, §§ 73–74.

131
In the case of Lok Adalat awards under the Legal Services Authorities Act, 1987, Section 21 states
that the award of the Lok Adalat shall be deemed to be a decree of a civil court and shall be final
and binding on all parties. No appeal lies against such award. In State of Punjab v. Jalour Singh,
(2008) 2 SCC 660, the Court held that even where a criminal matter is referred to Lok Adalat, if
parties genuinely settle, the award is executable as a decree. Thus, the legal effect of Lok Adalat
settlement is automatic enforceability without further adjudication.457

Family disputes often include sensitive components such as child custody, maintenance,
guardianship, and visitation rights. The enforceability of settlements in these matters must meet an
additional test of welfare of the child. In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42,
the Supreme Court held that courts must not blindly enforce parenting agreements unless they
promote the best interest of the child. Hence, even if a mediated agreement is submitted to court,
it must pass substantive scrutiny. The legal effect is conditional on judicial satisfaction regarding
the child’s welfare.458

The binding nature of a mediated settlement in family matters also requires absence of fraud,
coercion, or misrepresentation. In Shalu Ojha v. Prashant Ojha, 2007 SCC OnLine Del 586, the
Delhi High Court refused to accept a settlement reached during mediation on the ground that the
wife’s consent was not voluntary. The Court made it clear that only fair and voluntary agreements
can be given the status of legal decrees. The judgment placed party autonomy and informed
consent at the heart of enforceability.459

In contrast, where settlements are fair, freely entered into, and judicially recorded, courts have
upheld their binding nature. In Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691, the
Supreme Court enforced a mediated divorce settlement. It held that once a party receives benefits
under the agreement, they cannot later challenge it without evidence of illegality. The agreement
became legally binding upon judicial recording and formed part of the divorce decree.460

Post-settlement, if either party violates the terms of the court-recorded ADR agreement,
enforcement can be sought through execution proceedings under Section 36 of the CPC.
Alternatively, a contempt petition may be filed. In Avneesh Sood v. Meenakshi Sood, 2018 SCC

457
State of Punjab v. Jalour Singh, (2008) 2 SCC 660.
458
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
459
Shalu Ojha v. Prashant Ojha, 2007 SCC OnLine Del 586.
460
Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.

132
OnLine Del 9744, the Delhi High Court treated the non-compliance with a visitation order arising
from a mediated settlement as contempt of court. The judgment reinforced that settlements
incorporated into orders are not merely advisory-they carry the force of law.461

In sum, the legal effect of ADR settlement agreements in family law is shaped by several variables:
statutory framework, mode of ADR, procedural compliance, voluntariness, judicial scrutiny, and
subject matter. Settlements that are court-recorded and fulfil statutory and constitutional thresholds
acquire the force of a decree and become immediately enforceable. Unrecorded or informal
settlements lack that force and require fresh legal proceedings for enforcement. This doctrinal
clarity ensures that ADR serves not only peace but also legal certainty in family justice.

461
Avneesh Sood v. Meenakshi Sood, 2018 SCC OnLine Del 9744.

133
CHAPTER 6: CHALLENGES, REFORMS AND
RECOMMENDATIONS
6.1 MAJOR CHALLENGES IN ADR FOR FAMILY DISPUTES

Lack of awareness among disputing parties about the scope, value, and enforceability of ADR
processes continues to obstruct its wider use in family disputes. Many litigants do not understand
what mediation or conciliation means. They confuse it with compromise or assume it leads to
unequal settlements. Particularly in rural or semi-urban areas, parties fear ADR will deprive them
of legal rights. This perception gap widens resistance to participate meaningfully in resolution
processes.462

Insufficient institutional infrastructure impairs the success of family ADR. Several family courts
across India lack proper mediation centres. Counselling rooms are absent or function with minimal
privacy. Trained personnel are few. The absence of dedicated child psychologists or trauma
counsellors affects the resolution of custody matters. Without adequate physical and human
infrastructure, the potential of ADR cannot be realised, especially when dealing with sensitive and
emotionally intense disputes.463

Lack of training and sensitisation among judicial officers poses a serious hurdle. Many judges treat
ADR as a procedural formality rather than a substantive justice tool. Referrals under Section 89
CPC or Section 9 of the Family Courts Act are mechanical. Some judges refer cases too late. Others
do not explore the appropriateness of mediation or conciliation before trial. This leads to a decline
in quality of outcomes and missed opportunities for early resolution.464

Absence of uniform referral procedures leads to inconsistency across jurisdictions. Some High
Courts have established detailed mediation rules. Others rely on internal circulars. This
inconsistency results in uneven application of ADR. Parties in one state may experience robust
referral, structured mediation, and strong post-settlement enforcement. In another, they may see

462
Nita Bhalla, “Most Indians Unaware of Mediation in Disputes”, Reuters, (Dec. 2019).
463
Law Commission of India, 129th Report on Urban Litigation, 1988.
464
Mediation and Conciliation Project Committee, Supreme Court of India, Training Manual for Judges (2020).

134
vague processes, unclear procedures, and a lack of follow-up. Such variation weakens public
confidence in ADR as a dependable mechanism.465

Prevalence of patriarchal bias in some mediators and counsellors damages neutrality. In many
cases, women face indirect pressure to “adjust” for the sake of the family. Mediators sometimes
nudge the woman to compromise even in situations involving cruelty, dowry harassment, or
emotional abuse. This undermines the very principle of informed consent and voluntariness. It
erodes the credibility of ADR and reproduces power imbalance under the guise of settlement.466

Non-recognition of trauma among parties, especially women and children, leads to ineffective
mediation. In domestic violence cases, women may agree to mediation out of fear or psychological
exhaustion. Without trauma-informed practices, mediation becomes coercive. Mediators and
courts often do not assess whether the party is emotionally capable of negotiation. This results in
settlements that are neither fair nor sustainable.467

Poor quality of agreements is another challenge. Mediated settlements in family disputes

sometimes lack clarity, specificity, or enforceability. In custody matters, vague parenting plans
create conflict later. In maintenance issues, payments may not be linked to escalation clauses or
timelines. When settlements are not drafted carefully or reviewed properly, they cause future
litigation. Mediators often lack legal drafting skills, and courts fail to verify enforceability.468

ADR institutions also suffer from budget constraints. Government funding for mediation centres,
especially in lower-tier courts, is inadequate. Resource scarcity affects scheduling, infrastructure,
and quality of service. Without financial support, ADR cannot scale. Public awareness campaigns,
training sessions, and panel creation require consistent investment. The lack of political and
bureaucratic priority is a systemic obstacle to strengthening ADR in the family law domain.

ADR’s limited interface with mental health professionals reduces its effectiveness. Many family
disputes arise from psychological distress, substance abuse, or past trauma. Mediation alone cannot
address these issues. Absence of social workers, therapists, or behavioural experts weakens the

465
Delhi High Court Mediation and Conciliation Rules, 2004.
466
Flavia Agnes, “Negotiating Spaces: Legal Reforms and Gender Justice in India”, OUP (2012).
467
National Legal Services Authority, Handbook on Family Mediation (2021).
468
Anita v. Satish, 2022 SCC OnLine Del 2395.

135
resolution process. Courts rarely engage multi-disciplinary teams. This makes ADR mechanistic
rather than therapeutic, particularly in complex matrimonial and custody matters.

Technological gaps also hinder modern ADR delivery. Online dispute resolution (ODR) tools are
not well integrated into family courts. Virtual mediation is underutilised. During COVID-19, many
centres adopted video conferencing. But post-pandemic, the momentum declined. A structured
digital ADR system with data protection, scheduling, and tracking is still missing. Technological
underdevelopment reduces reach, accessibility, and efficiency in family dispute resolution.

6.2 GAPS IN CURRENT LEGAL AND INSTITUTIONAL FRAMEWORK

The current statutory framework governing ADR in family disputes lacks dedicated legislation
specific to matrimonial and custody-related matters. Section 89 of the Code of Civil Procedure,
1908 enables courts to refer disputes for mediation or conciliation. However, it remains a general
provision. No comprehensive statute exists that exclusively governs family-specific ADR
procedures, principles, or enforcement. The absence of tailored legislative instruments leads to
fragmented application and poor institutional clarity in family dispute contexts.469

The Family Courts Act, 1984 under Section 9 mandates efforts for settlement. Yet, it does not lay
down clear mechanisms to implement this mandate. There is no detailed procedure, no specified
referral structure, and no mandatory checklist to assess the suitability of cases for ADR. Unlike
the Arbitration and Conciliation Act, 1996, the Family Courts Act lacks codified procedural rules
for mediation or conciliation. Courts interpret Section 9 differently. Some consider it binding.
Others treat it as discretionary. This ambiguity dilutes its impact on ADR referrals.470

Judicial interpretation of Section 89 CPC also remains inconsistent. In Afcons Infrastructure Ltd.
v. Cherian Varkey Construction Co., (2010) 8 SCC 24, the Supreme Court clarified the procedure
for referring matters to ADR. Yet, no binding procedural rules have been notified across most
states. Courts continue to exercise referral powers arbitrarily. Some courts refer cases too late.
Others do so without formulating settlement terms or assessing the nature of disputes. Lack of
standardisation undermines judicial application of ADR mandates.471

469
Code of Civil Procedure, 1908, § 89.
470
Family Courts Act, 1984, § 9.
471
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.

136
There is no national ADR statute focused on family disputes incorporating gender justice, child
sensitivity, and trauma-informed principles. Existing legislation fails to include safeguards for
victims of domestic violence or power imbalance in mediation. Unlike some jurisdictions abroad,
Indian law does not prohibit or regulate mediation in cases involving allegations of abuse or mental
cruelty. This lacuna risks subjecting survivors to coercive negotiation without protective
structures.472

There is no formal legal recognition of child-inclusive or child-focused mediation within the

current framework. Despite the Supreme Court’s emphasis in Gaurav Nagpal v. Sumedha Nagpal,
(2009) 1 SCC 42, Indian statutes do not provide for child participation in ADR processes affecting
custody or visitation. No provision mandates trained child psychologists or welfare officers during
the mediation of child-related disputes. This leads to decisions that ignore the evolving capacities
and preferences of children involved.473

Technological integration in ADR is legally unregulated. Virtual mediation during the pandemic
showed potential. But there is no statute or rule governing confidentiality, consent, or
enforceability of online ADR in family cases. No data protection regime ensures safety of sensitive
personal disclosures made during virtual sessions. The Information Technology Act, 2000 does not
address mediation platforms. This legal vacuum exposes parties to confidentiality breaches and
informal procedural compromises.

There is no express reference to ADR in key family law statutes like the Hindu Marriage Act, 1955
or the Special Marriage Act, 1954. While Section 23(2) of the Hindu Marriage Act mentions
reconciliation efforts, it remains declaratory. No procedural mandate accompanies it. No linkage
is made between family law provisions and ADR statutory design. This absence of integration
reflects a fragmented legal framework. The statutory disconnect weakens the systemic use of ADR
in family justice.

Public policy does not prioritise ADR in family law. Government programmes on dispute
resolution, judicial reform, or gender justice rarely allocate targeted budgets or institutional support
for family mediation. Ministries like Women and Child Development or Law and Justice operate
in silos. No central body exists to coordinate ADR promotion in family law with uniform

472
Law Commission of India, 222nd Report on Need for Justice Dispensation through ADR (2009).
473
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

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guidelines, budgets, research, or evaluation. The legal and administrative framework lacks
coherence and integration.

6.3 NEED FOR UNIFORM FAMILY ADR GUIDELINES

India lacks a codified, uniform framework for Alternative Dispute Resolution in family matters.
Every court follows different practices. No national standard guides courts or mediators. Referral
practices, mediation quality, and enforcement differ between jurisdictions. Disparity creates
injustice. Uniform guidelines will bring coherence and equality. Every litigant deserves consistent
ADR experience irrespective of location.474

Family disputes involve personal emotions, rights of children, dignity of spouses. They need
sensitivity. Courts sometimes refer these cases too late. Other times, parties are forced into
unsuitable processes. Uniform guidelines can define when and how referrals should happen. Clear
timelines, referral forms, and criteria will avoid judicial arbitrariness. Courts will act uniformly.
Judges will know the threshold of suitability before referring a family case to ADR.475

The Delhi High Court Mediation Rules, 2004 offer structure. But they apply only to Delhi. Other
states use outdated practices. Many family courts do not have any procedural checklist. Uniform
guidelines can lay down a referral protocol. They can instruct courts to assess domestic violence,
power imbalance, or trauma before suggesting mediation. In cases of abuse, mediation must be
avoided. Such safeguards are missing today. Guidelines will prevent coercive settlements.476

ADR outcomes in family law need procedural safeguards. Sometimes, settlements are vague.
Others lack consent. Guidelines can standardise the format of settlement agreements. Clear
headings, legal review, and child custody clauses must be mandatory. Enforcement will be easier.
Compliance will increase. Guidelines will protect parties from exploitation masked as
resolution.477

Judicial recording of mediated settlements varies. Some courts incorporate settlements into
decrees. Others attach them as annexures. Without consistency, enforcement becomes difficult.
Uniform guidelines can define when a settlement becomes binding. They can mandate recording

474
Law Commission of India, 222nd Report on Need for Justice Dispensation through ADR and Mediation, 2009.
475
Code of Civil Procedure, 1908, § 89.
476
Delhi High Court Mediation and Conciliation Rules, 2004.
477
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

138
procedures. Settlements meeting prescribed standards must be made decrees. This will ensure
enforceability and reduce post-settlement litigation.478

Training of mediators remains uneven. Family mediation requires knowledge of child rights,
women’s rights, and personal laws. Some mediators lack this. Guidelines must define
qualifications. At least one session of training in gender justice, trauma counselling, and
matrimonial law should be mandatory. This will ensure quality. The process will become rights-
based, not just compromise-based.479

Technology must be integrated. Guidelines must include ODR rules. Online family mediation must
follow data protection principles. Consent must be digital but informed. Sessions must be recorded
with confidentiality clauses. Uniformity in digital ADR will prevent misuse. Guidelines can list
certified platforms. Courts can refer to registered ODR providers. Technology will increase reach.
But safety must be ensured.

ADR ethics need codification. Mediators must disclose conflicts of interest. Guidelines can include
a code of conduct. Confidentiality, neutrality, and respect must be mandatory principles.
Misconduct must lead to de-paneling. Currently, there is no system of mediator accountability.
Guidelines will professionalise the system. Parties will trust the process.

Uniformity will also help in judicial education. Judges need direction. Guidelines will become
reference manuals. Referral, recording, and review will be simplified. They will improve
coordination between judges, lawyers, mediators. Common language and procedures will replace
confusion. Uniform guidelines will bridge the gap between law and practice. They will
institutionalise ADR in Indian family justice system.

6.4 POLICY AND LEGISLATIVE REFORMS

A dedicated legislation is needed for family dispute resolution. Section 89 of CPC is insufficient.
It lacks specific safeguards, timelines, procedures, and definitions for family ADR. A Family
Dispute Resolution Act must be enacted. It should outline structured referral procedures, criteria
for suitability, mandatory safeguards in domestic violence matters, enforceability mechanisms, and

478
Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.
479
Supreme Court Mediation and Conciliation Project Committee, Training Module for Family Mediation (2021).

139
post-settlement compliance norms. Without such targeted legislation, family ADR will remain
fragmented and discretionary.480

The Family Courts Act, 1984 must be amended. Section 9 requires courts to make efforts for
settlement. But it has no procedural framework. The law must be restructured to mandate pre-trial
counselling by trained mediators. It should prescribe a timeline for referral, criteria for exemption,
and a duty on judges to record reasons for non-referral. It must also define mediator eligibility and
introduce review provisions for biased or failed ADR. Statutory amendment will give the provision
teeth and procedural force.481

A strong policy is needed to integrate psychological and social services into ADR. Every district
ADR centre must have access to at least one child psychologist, one counsellor, and one social
worker. Family dispute resolution cannot be purely legal. Multidisciplinary panels must become
part of ADR. Legislative reform should mandate such integration in court rules or family law
statutes. Such panels will increase fairness, especially in custody or maintenance matters involving
trauma or abuse.482

Policy must ensure digital inclusion in family ADR. The Mediation Bill must include a separate
schedule on virtual ADR. A national online family mediation platform must be launched by the
Government. It should include consent tools, digital signature systems, scheduling, confidentiality
protocols, and cloud-based case management. All proceedings must follow standard ethical and
procedural protocols. Legislative clarity will protect data and privacy during online mediation.483

To encourage use, family ADR should receive financial support under central legal aid schemes.
Legal Services Authorities must be directed to provide free ADR assistance in all family courts.
State budgets must include funding for mediation centres, infrastructure, training, technology, and
post-settlement follow-up. Legislative rules under the Family Courts Act and Legal Services
Authorities Act must be amended to reflect this funding mandate. Free ADR will increase
accessibility and promote early resolution.484

480
Code of Civil Procedure, 1908, § 89.
481
Family Courts Act, 1984, § 9.
482
Indian Psychiatry Society, “Mental Health and Family Mediation”, IPS Bulletin (2020).
483
NITI Aayog, “ODR: Designing the Future of Dispute Resolution in India”, 2021.
484
Legal Services Authorities Act, 1987, § 19; Department of Justice Annual Budget Statement, 2022–23.

140
Policy should mandate that no ADR be permitted in cases involving proven domestic violence
unless the survivor voluntarily requests it. The Protection of Women from Domestic Violence Act,
2005 must be amended to clarify that mediation cannot be compelled by courts or counsellors.
Safety, dignity, and agency must be prioritised. Any agreement reached in such ADR must be
judicially scrutinised. Legislative guidance must prioritise survivor-centric processes over mere
efficiency.

The Personal Laws must also include ADR as a layered component of relief. For instance, the law
governing maintenance under Section 125 CrPC should be linked with counselling and ADR.
Personal law reliefs such as restitution of conjugal rights must include a mandatory referral to
mediation unless contested. Uniform policy will integrate settlement into litigation processes
without denying access to courts. The aim is to prevent prolonged adversarial escalation in
sensitive relationships.

Policy should create a public awareness campaign. Ministry of Law and Justice must launch an
ADR literacy programme targeting family disputes. It must use radio, TV, mobile apps, and digital
platforms. Content must be made in regional languages. Campaigns should highlight
confidentiality, dignity, and time-saving features of ADR. Without public trust, reforms will remain
paper-bound. Legislative reform must mandate government awareness initiatives under a Family
ADR Promotion Plan.

Law schools and bar councils must include family ADR training in curriculum and continuing
legal education. A Bar Council directive should require all advocates handling family matters to
undergo ADR orientation. Lawyers must be made part of the reform. Unless they support ADR,
parties won’t participate. Mandatory certification will professionalise family dispute practice.
Policy reform must address this lawyer-mediator interface clearly and explicitly.

6.5 RECOMMENDATIONS FOR STRENGTHENING ADR IN FAMILY

LAW

Introduce a comprehensive Family Mediation Code under a separate legislation. The code should
define scope, procedures, timelines, and exceptions. Make referral mandatory in all non-violent
family disputes. Create binding criteria for judicial satisfaction before bypassing ADR. Establish

141
a common rulebook across jurisdictions. Uniformity will build predictability and eliminate judicial
arbitrariness.485

Mandate pre-litigation mediation for all divorce, custody, and maintenance claims. Allow
exemptions only in cases of proven domestic violence or coercion. Add a statutory requirement to
attempt reconciliation and issue a certification before filing a contested petition. This will promote
early resolution and prevent escalation.486 Create an independent regulatory authority under the
Ministry of Law and Justice to oversee family mediation. This body should frame qualifications,
training standards, ethical codes, complaint mechanisms, and disciplinary actions. It must maintain
a national panel of certified mediators. Introduce mandatory registration and annual renewal of
mediator credentials.487

Set up mediation and counselling units in every Family Court. Allocate dedicated space with child-
friendly rooms, trained staff, privacy safeguards, and legal aid desks. These units must include a
mental health professional, a child counsellor, and a gender-sensitised mediator. Institutional
support must not be left to the discretion of the judge or the legal services authority.488 Mandate a
specialised 50-hour training programme for family mediators. Include modules on child
psychology, gender justice, trauma healing, religious personal laws, and property division. Ensure
periodic upskilling. No mediator should be allowed to handle family disputes without this
certification. Training must focus on empathy, neutrality, and legal awareness.489

Prescribe a standard settlement format to be followed by all courts when recording mediated
agreements. Include non-negotiables such as clear custody terms, timelines, financial obligations,
child visitation schedules, and enforcement clauses. Court must verify the consent and
understanding of both parties before approving settlement terms. Prevent vague or incomplete
agreements.490 Make all ADR outcomes judicially enforceable. Court must record settlement as
part of the final decree. Include a statutory mandate that any mediated agreement not approved by

485
Law Commission of India, 222nd Report on Need for Justice Dispensation through ADR and Mediation (2009).
486
Mediation Bill, 2023 (as introduced in Rajya Sabha), Clause 6.
487
Bar Council of India, “Model Guidelines for Mediator Regulation”, BCI/ADR/2021.
488
Ministry of Law and Justice, Annual Report 2022–23, p. 92.
489
Supreme Court of India, Mediation and Conciliation Project Committee, Training Manual (2021).
490
Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.

142
court has no legal standing. Settlements reached without proper safeguards must be reviewable
within a fixed time. This will deter coercive or unfair compromises.491

Introduce a grievance redress system. Allow parties to report mediator misconduct or breach of
neutrality. Form grievance committees at the district and state level. Include retired judges,
psychologists, and advocates. Establish clear timelines for resolution. Suspend mediators pending
inquiry. Restore faith in ADR neutrality and ethics.492

Strengthen post-settlement compliance. Courts must fix review hearings every six months after
custody or maintenance agreements. Mediators may be allowed to conduct follow-ups. Use
technology to send compliance reminders. Enable courts to initiate contempt for deliberate
breaches. Justice must not end at settlement. Enforcement is the key to public trust.493 Regularly
audit ADR performance in family courts. Collect quarterly data on referrals, success rate, gender
disaggregation, child-centric outcomes, and post-settlement compliance. Publish reports and
rankings. Use findings to improve training, infrastructure, and judicial behaviour. Data-driven
accountability must replace anecdotal assumptions.

491
Code of Civil Procedure, 1908, § 89; Family Courts Act, 1984, § 9.
492
Mediation Bill, 2023, Chapter VII – Conduct and Grievance Redress Mechanism.
493
Avneesh Sood v. Meenakshi Sood, 2018 SCC OnLine Del 9744.

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CHAPTER 7: CONCLUSION
7.1 SUMMARY OF RESEARCH FINDINGS

ADR has emerged as a vital instrument for resolving family disputes in India. The study revealed
that traditional litigation fails to meet the emotional, psychological, and relational needs involved
in family conflicts. ADR processes-particularly mediation and conciliation-offer privacy, empathy,
and faster outcomes. The research identified that family disputes such as divorce, maintenance,
custody, and guardianship require a framework rooted in dignity, mutual respect, and preservation
of relationships.494

The doctrinal inquiry highlighted that Section 89 of the Code of Civil Procedure, 1908 and Section
9 of the Family Courts Act, 1984 are key legal anchors. However, their practical implementation
lacks consistency. Family courts often fail to make proactive referrals to ADR. Judicial discretion
is exercised inconsistently. Some courts use mediation systematically, while others bypass ADR
without recording reasons. This disparity reveals the absence of uniform standards governing ADR
in family law settings.495

Judicial pronouncements have strongly endorsed ADR for matrimonial disputes. In Afcons
Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24, the Supreme Court
classified family matters as suitable for ADR. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC
226, the apex court recommended institutional mediation mechanisms for family disputes. These
decisions created a progressive jurisprudential base. Yet, lower courts remain inconsistent in
practice. Referral delays, lack of documentation, and absence of scrutiny over settlements
persist.496

The research examined the suitability of family disputes for ADR based on their nature.
Matrimonial conflicts involving mutual consent, emotional breakdowns, and parenting
arrangements were found to be appropriate for mediation. Cases involving criminal allegations,
domestic violence, or coercive control were deemed unsuitable unless the survivor consents to

494
Law Commission of India, 222nd Report on Need for Justice Dispensation through ADR and Mediation, 2009.
495
Family Courts Act, 1984, § 9; Code of Civil Procedure, 1908, § 89.
496
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24; K. Srinivas Rao v. D.A. Deepa,
(2013) 5 SCC 226.

144
ADR. Voluntariness and safety must guide the appropriateness of referral. The findings affirm that
family ADR must never be applied mechanically or mandatorily in abuse cases.497

The use of mediation in matrimonial disputes was critically analysed. Mediation promotes healing
and mutual understanding when supported by trained professionals. It helps reduce litigation and
encourages parties to design personalised solutions. However, the study found issues of power
imbalance, pressure on women to “adjust”, and inadequate understanding of legal rights. In many
instances, settlements reflected compromise, not justice. Therefore, mediator training and gender-
sensitised practices are essential to protect party autonomy and ensure fair resolutions.498

Conciliation under the Arbitration and Conciliation Act, 1996 provides legally enforceable
outcomes under Sections 73 and 74. However, it is rarely utilised in family law. Family courts
prefer court-annexed mediation or informal counselling. The research established that statutory
conciliation can be expanded in family matters through trained neutral conciliators working within
a regulated framework. Legal finality under the Act must be extended to family conciliation
agreements through proper adaptation.499

The study assessed the role of Lok Adalats in family dispute resolution. Awards passed in Lok
Adalats under Section 21 of the Legal Services Authorities Act, 1987 are binding and treated as
civil decrees. However, the findings revealed that Lok Adalats are often conducted without
sufficient dialogue or psychological engagement. Quick disposal is prioritised over quality of
outcome. This undermines the unique sensitivities of family issues. Therefore, Lok Adalats in
family law must be redesigned with a counselling-centric approach and child-inclusive
processes.500

The research identified multiple challenges in implementing ADR in family law. These include
lack of awareness, inadequate infrastructure, poor training of mediators, gender insensitivity, and
judicial reluctance. Institutional barriers, regional disparities, and absence of grievance redress
mechanisms further worsen the situation. Despite favourable judgments and policy frameworks,

497
National Legal Services Authority, Handbook on Mediation in Family Law (2021).
498
Flavia Agnes, “Negotiating Spaces: Legal Reforms and Gender Justice in India”, OUP, 2012.
499
Arbitration and Conciliation Act, 1996, §§ 73–74.
500
Legal Services Authorities Act, 1987, § 21; State of Punjab v. Jalour Singh, (2008) 2 SCC 660.

145
practical implementation remains weak. ADR is still seen as an optional experiment, not a
structured right.

Major gaps in the legal and institutional framework were documented. No standalone legislation
exists on family ADR. The Mediation Bill, 2023 excludes matrimonial disputes from its mandatory
scope. Personal laws do not explicitly provide for mediation or counselling. Family Courts Act
lacks detailed procedural norms for ADR. There is no national regulatory body for family
mediators. No uniform protocol for virtual mediation exists. These statutory and administrative
lacunae require urgent redressal.

The study proposed detailed reforms. These included enacting a Family Mediation Code,
amending the Family Courts Act and Mediation Bill, setting up a National Council on Family
Mediation, mandating pre-litigation counselling, making training compulsory, and including
psychologists in every mediation centre. Legislative alignment between ADR and personal laws
was also recommended. Reforms must be multidisciplinary, child-centric, and gender-sensitive.

Key recommendations were formulated to strengthen family ADR. These include creating a
uniform ADR referral protocol, establishing national and regional mediator panels, integrating
ADR in law school curriculum, launching public awareness campaigns, enforcing mediated
agreements as decrees, and building grievance redress systems. Post-settlement compliance
monitoring and data audits were also suggested. These reforms are grounded in research findings
and comparative best practices.

The research conclusively establishes that ADR is not merely an alternative. It is an essential tool
for restoring relationships, protecting child welfare, and ensuring gender-just outcomes in family
law. For ADR to achieve its constitutional and social objectives, it must be properly legislated,
institutionalised, and humanised. Without such reforms, the promise of non-adversarial family
justice will remain unfulfilled.501

501
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

146
7.2 CONCLUDING OBSERVATIONS ON ADR IN FAMILY DISPUTES

ADR serves a restorative purpose in family law unlike conventional litigation. It transforms the
adversarial approach into a conciliatory one. It brings back focus on relationship healing instead
of legal victory. Matrimonial disputes need this approach. Traditional litigation intensifies hostility
and prolongs pain. ADR reduces emotional exhaustion. It builds mutual respect. It enables
constructive dialogue.502

Judicial recognition has strengthened ADR in family disputes. Supreme Court in Afcons
Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24, explicitly held that all
disputes relating to matrimonial matters including maintenance, custody and guardianship are
amenable to ADR processes. Yet, such recognition is not matched by institutional readiness.
Family courts refer cases irregularly. There are no standard referral forms. Some courts do not
even check suitability. Others refer too late. Uniform guidelines remain absent.503

Voluntariness and party autonomy are often compromised in family ADR. Settlements sometimes
reflect societal bias, not free will. Women are nudged into compromise under the garb of
reconciliation. Mediators lack gender sensitivity. Judges approve agreements without verifying
fairness. In Shalu Ojha v. Prashant Ojha, 2007 SCC OnLine Del 586, the High Court emphasised
that mediated settlements must not be mechanical. Yet, practice shows consent is often presumed,
not ensured.504

ADR in family law lacks child-centricity. Custody disputes are mediated without involving child
counsellors. No structured way to capture the child’s voice. Parenting plans are drafted vaguely.
Courts ignore the psychological needs of the child. No rule mandates child-sensitive protocols.
Unlike Singapore’s Family Justice Courts or Australia’s FDR process, India has no special
framework for child-inclusive mediation.505

Judicial training on ADR remains inadequate. Many judges see ADR as a burden, not a
responsibility. Section 89 CPC and Section 9 of the Family Courts Act are invoked with reluctance.
No uniform protocol to guide referral decisions. Referral is often last-minute. Delay damages trust.

502
Law Commission of India, 222nd Report on Need for Justice Dispensation through ADR and Mediation (2009).
503
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.
504
Shalu Ojha v. Prashant Ojha, 2007 SCC OnLine Del 586.
505
Singapore Family Justice Courts, “Child Focused Resolution Framework”, 2022.

147
Mediation becomes less effective when parties are already bitter. ADR must be initiated early, not
after evidence is recorded.506

Enforceability of settlements is another challenge. Mediated outcomes lack clarity and legal rigour.
Many are not converted into decrees. Some are mere MoUs. When breached, fresh litigation
follows. Courts lack procedure to handle default. In Anurag Mittal v. Shaily Mishra Mittal, (2018)
9 SCC 691, Supreme Court ruled that terms of mediation are binding once recorded in court. But
in practice, implementation is inconsistent. Enforceability must be structured with legal
safeguards.507

Mediation in domestic violence cases remains contentious. Courts sometimes compel survivors
into ADR despite abuse. The Protection of Women from Domestic Violence Act, 2005 does not
prohibit mediation. But doing so without safeguards leads to revictimisation. Power imbalance is
ignored. Survivors are pressurised to reconcile. ADR must not function in a vacuum. Safety and
autonomy must override procedural expediency.508

Lok Adalats provide speedy disposal. But they are unsuitable for complex family disputes. They
lack time, psychological depth, and neutrality checks. Settlements reached in such forums are often
quick compromises. Legal Services Authorities Act, 1987 gives legal sanctity to awards. But
without counselling, decisions risk being unjust. Lok Adalats must be reimagined for family
matters. Counselling-based Lok Adalats should be piloted.509

Cross-border disputes highlight the absence of a global approach. Matrimonial breakdowns

involving NRIs face challenges of jurisdiction, enforcement, and custody transfer. No harmonised
ADR mechanism exists. Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 showed courts
struggling to resolve custody with international dimensions. India must explore joining Hague
Convention on Child Abduction and formulate international ADR protocols. Private international
law must converge with ADR for global effectiveness.510

Digital ADR is a potential solution. But unregulated. No data privacy safeguards. Confidentiality
is at risk. No platform is recognised for family mediation. Parties distrust online processes. Courts

506
Family Courts Act, 1984, § 9; Code of Civil Procedure, 1908, § 89.
507
Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.
508
Protection of Women from Domestic Violence Act, 2005, § 14.
509
Legal Services Authorities Act, 1987, § 21.
510
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

148
lack infrastructure. No training for virtual mediation. During COVID-19, online ADR emerged.
But post-pandemic, it declined. Institutionalising ODR with ethical and technological standards is
the need of the hour.511

Law schools neglect ADR in curriculum. Students lack exposure. Bar Council does not mandate
ADR modules. Legal professionals remain adversarial in mindset. Mediation is seen as weakness,
not strength. Without educational reform, future lawyers will not champion ADR. Judges will
continue to rely on litigation. Training must begin early. Ethics, neutrality, listening, and trauma
sensitivity must be taught with doctrinal rigor.

Public understanding of ADR remains low. People prefer courts due to lack of awareness. No
widespread campaigns exist. Ministry of Law and Justice, Legal Services Authorities, and
Judiciary have not launched sustained outreach. Community mediation models are
underdeveloped. Panchayat systems lack neutrality. Without public trust and participation, ADR
will not become mainstream. Awareness must be embedded into policy.

Reform must focus on rights. ADR is not a compromise tool. It is a justice tool. Justice must be
participatory, consensual, and inclusive. Gender justice, child rights, and dignity must form the
core. ADR must not mask injustice. It must not reproduce inequality. A strong regulatory
framework, ethical training, and judicial guidance must support every family mediation process.

ADR in family disputes holds promise. It is faster, cheaper, and less hostile. It offers space for
dialogue. It preserves relationships. But this potential is yet to be fully realised. Gaps in law,
practice, training, and perception remain wide. Structural reform, legislative clarity, and attitudinal
shift are essential. Courts, lawyers, mediators, and the state must work in convergence. Only then
will ADR become the backbone of family justice.

7.3 FUTURE SCOPE OF RESEARCH

The interface between ADR and family law in India is evolving and fragmented. Many areas
remain unexplored. Future research must investigate the impact of socio-cultural variables on
outcomes of mediation and conciliation in matrimonial cases. Religion, gender, caste, and class
influence how parties approach settlement. Scholars should study whether outcomes differ across

511
NITI Aayog, “ODR: Designing the Future of Dispute Resolution in India”, 2021.

149
communities and economic groups. Research should also explore whether certain communities are
underrepresented in accessing ADR services due to stigma or lack of information.512

Comparative analysis across Indian states is another rich area. Every High Court has framed
different mediation rules. Some family courts refer cases actively, others do not. A state-wise
empirical study can identify best practices and structural weaknesses. Quantitative research can
track settlement rates, withdrawal rates, and post-settlement litigation across jurisdictions. The
lack of uniformity in application of Section 89 CPC and Section 9 of the Family Courts Act opens
a wide research gap. Evaluating regional disparities can lead to more contextualised reforms.513

The question of enforceability of ADR outcomes in family disputes remains under-studied. Do

mediated agreements actually reduce litigation? Do parties comply with parenting plans or
alimony obligations settled outside court? Longitudinal research is required to track compliance
and satisfaction among disputants who opt for ADR. Research should also examine whether
enforcement varies when settlements are recorded under CPC versus the Arbitration and
Conciliation Act or under Legal Services Authorities Act.514

Another domain is the psychological impact of ADR on children in custody disputes. Current
jurisprudence accepts the best interest standard. But there is no substantial research on how child-
focused mediation affects emotional well-being, educational continuity, or post-divorce
adjustment. Interdisciplinary collaboration between law and psychology departments could
produce models for child participation. These models can be tested in mediation rooms and court-
annexed counselling centres.515

The role of gender in family ADR deserves detailed study. There is anecdotal evidence that women
are pressured into compromise. But no large-scale empirical data exists on gendered outcomes of
mediation. Future research must document whether women are more likely to withdraw
complaints, accept lesser maintenance, or concede custody in ADR proceedings. Feminist legal
scholars should evaluate the role of patriarchal conditioning in perceived voluntariness during
settlement.516

512
Baxi, Upendra, Law and Poverty: Critical Essays, N.M. Tripathi, 1988.
513
Family Courts Act, 1984, § 9; Code of Civil Procedure, 1908, § 89.
514
Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.
515
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
516
Flavia Agnes, “Negotiating Spaces: Legal Reforms and Gender Justice in India”, OUP, 2012.

150
The capacity of family mediators must be independently reviewed. Few studies evaluate their
training, competence, or neutrality. Research must map their qualifications, code of ethics, and
effectiveness. Case study methods can be used to assess mediator interventions and party
perceptions. Universities could partner with district mediation centres to conduct feedback audits.
Data-driven reforms depend on performance-based research.517

Policy research is required on integration of technology in family ADR. The COVID-19 pandemic
accelerated online mediation. But there is little research on its effectiveness in matrimonial
disputes. Do parties feel safe in online sessions? Does the virtual format affect consent or
confidentiality? Scholars must compare online versus in-person mediation in terms of cost, access,
outcome quality, and user satisfaction. This will assist in shaping digital ADR policies for family
courts.518

Doctrinal research can be extended to areas such as same-sex relationships, live-in partners, and
trans families. These relationships are growing. Yet, ADR frameworks remain heteronormative.
Statutes and mediation guidelines do not include these families. Future research must ask whether
family ADR can serve these emerging units. A comparative study with jurisdictions like Canada
or Netherlands can provide inclusive legal blueprints.519

Public policy evaluation is urgently needed. Legal aid schemes, NALSA guidelines, and State
Legal Services Authorities vary in implementation. Are free ADR services equally accessible in
rural areas? Do SC/ST or minority groups use mediation? Research must track demographic usage
of ADR. This will highlight inclusion gaps. It can push policymakers to redesign outreach
programmes and decentralise infrastructure.520

Cross-border family dispute resolution is another under-researched area. India is not a party to the
Hague Convention on Civil Aspects of International Child Abduction. This makes cross-
jurisdictional mediation complex. Comparative research on how foreign courts conduct cross-
border ADR will help India frame a model. Research can focus on enforceability of foreign ADR

517
Supreme Court Mediation and Conciliation Project Committee, Training Manual (2022).
518
NITI Aayog, “ODR: Designing the Future of Dispute Resolution in India”, 2021.
519
Cossman, Brenda, “Sexual Citizens: The Legal and Cultural Regulation of Relationships”, Stanford University
Press, 2007.
520
NALSA, Annual Mediation Data Report (2022–23).

151
awards, online cross-jurisdiction mediation, and use of consular services in family
reconciliation.521

ADR in personal law contexts such as Muslim talaq, Christian annulment, and Parsi matrimonial
disputes must be doctrinally revisited. Do personal laws facilitate ADR or conflict with it? Can
faith-based conciliators be regulated under secular guidelines? Research must explore
harmonisation of religious dispute resolution with constitutional mandates on equality and dignity.
This area is ripe for scholarly inquiry rooted in comparative constitutionalism.

The relationship between ADR and procedural law needs deeper study. Section 89 CPC coexists
with provisions under the Arbitration and Conciliation Act and the Family Courts Act. Yet, judicial
interpretation varies. Research must evaluate whether conflicts arise due to lack of legislative
harmony. Analytical work can propose legislative drafting to align objectives, remove ambiguities,
and enhance procedural clarity in ADR statutes.

Another promising area is the study of community mediation. Many NGOs and civil society actors
are resolving family disputes through informal mediation. But they lack formal recognition. Future
research can map the working of such organisations, document their methods, and examine success
stories. The State can then consider a formal accreditation mechanism. This could decentralise
ADR and expand outreach.

Research must also consider whether ADR in family law promotes access to justice. Does it
empower parties or replace one form of elite domination with another? Is ADR truly democratic,
or is it a settlement factory? Critical legal theory must interrogate ADR’s claim to justice. Future
work must combine legal realism, sociological jurisprudence, and rights-based critique. Such
multidimensional studies will sharpen policy discourse.

521
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

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 BIBLIOGRAPHY
1. Books and Monographs

• Anirban Chakraborty, “Law & Practice of Alternative Dispute Resolution in India: A

Detailed Analysis” – Comprehensive doctrinal commentary on arbitration, mediation,
negotiation, and statutory framework.

• Charles Ewert, “Choices in Approaching Conflict: Understanding the Practice of

Alternative Dispute Resolution” – Explores psychological and theoretical frameworks
of ADR across cultures.

• Robert H. Mnookin – Analyzes ADR mechanisms from the perspective of law and
economics, with particular focus on bargaining and settlement theory.

• Cinnie Noble, “Mediation Advocacy: Effective Client Representation in Mediation

Proceedings” – Practical legal training for representing clients in mediation.

• Justice V.R. Krishna Iyer, “Family Courts and ADR in India: Vision and Reality” –
Reflective judicial critique on family courts and alternative dispute settlement
mechanisms.

• Sharma and Parashar, “Family Mediation in India: Legal Framework and Practical
Applications” – Includes regional court-based case studies of ADR implementation.

• Mehta, “Alternative Dispute Resolution and Family Law in India” – Legal analysis of
mediation under various personal laws.

• Gopinath, “Cultural Competence in Family Mediation: The Indian Context” –

Contextual ADR approaches informed by joint family systems and cultural
sensitivities.

• Bhattacharya, “Faith-Based Mediation in Family Disputes” – Comparative study of

religiously grounded ADR in Hindu, Muslim, and Christian contexts.

• Lisa Parkinson, “Family Mediation: Appropriate Dispute Resolution in a New Family

Justice System” – Comparative law perspective from the UK and EU.

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 • Joan Kelly, “Children and Divorce: Managing Family Conflict” – Child-inclusive
practices and minimizing trauma in mediation.

2. Journal Articles and Research Papers

• Nandini Gore & Karanveer Singh Anand, “Alternative Dispute Resolution as a Solution
for Family Disputes” – Justifies ADR’s growing constitutional relevance under Article
21.

• Kamakshi Puri, “Mediation in Family Law Disputes in India” – Legal review of CPC
Section 89 and the Family Courts Act, 1984 in the ADR framework.

• Ramamoorthy, “Section 89, CPC and Family Courts Act: Complementary Frameworks
for Family Dispute Resolution” – Inter-relational analysis of statutory mandates for
family mediation.

• Justice D.Y. Chandrachud, “Judicial Attitudes Toward Family Mediation: Evolving

Perspectives from the Indian Bench” – Views from the judiciary on referrals and
mediation credibility.

• Upendra Baxi, “On How Not to Judge the Judges” – Foundational jurisprudential
critique of court-centric dispute resolution.

• Saxena, “The Enforceability of Mediated Settlements in Family Disputes” – Legal

mechanisms and enforcement barriers in family ADR.

• Vasudevan, “Custody Mediation in India: Balancing Parental Rights and Child Welfare”
– Analyzes the best interest of the child principle within mediation proceedings.

• Gupta, “Mediation in Matrimonial Property Disputes: Challenges and Opportunities” –

Focuses on disclosure obligations and asset division in family settlements.

• Menon, “Elder Care Mediation: Addressing Intergenerational Family Conflicts” –

Socio-legal relevance of mediation for resolving elder dependency and succession
issues.

• Sharma & Patel, “Mediation Outcomes in Divorce Cases: An Empirical Study of Court-
Annexed Mediation in Delhi” – Case data and metrics-based study.

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 • Bose, “Gender and Power in Family Mediation” – Critique of patriarchal negotiations
and role of mediators in ensuring equity.

• Chopra, “Online Family Dispute Resolution in India: Prospects and Challenges” – Legal
and ethical dimensions of virtual mediation platforms.

• Verma, “Collaborative Law for Indian Families: A New Paradigm” – Suggests a hybrid
of ADR and therapeutic jurisprudence for India.

• Rahman, “Therapeutic Family Dispute Resolution” – Advocates trauma-informed ADR

practice in matrimonial disputes.

3. Law Commission Reports and Official Documents

• Law Commission of India, 129th Report – Advocates mandatory ADR referrals under
Section 89 CPC.

• Law Commission of India, 222nd Report on Need for Justice-Dispensing ADR

Forums – Strategic institutionalization of ADR methods in civil and family law
disputes.

• Justice Malimath Committee Report (2003) – Recommends mainstreaming ADR in

criminal and family proceedings for decongesting courts.

• NITI Aayog ODR Policy Plan (2021) – Government’s national strategy for integrating
Online Dispute Resolution with mainstream legal services.

• Mediation Act, 2023 – Statutory recognition of pre-litigation mediation in family

matters and establishment of the Mediation Council of India.

4. Judicial Decisions and Doctrinal Cases (Cited)

• Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24 –

Landmark precedent interpreting Section 89 CPC.

• Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344 – Upholds Section
89 and lays guidelines for judicial referrals to ADR.

• K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 – Recognizes irretrievable breakdown
and promotes ADR in divorce.

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 • Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150 – Advocates virtual hearings
and out-of-court mechanisms in family disputes.

• Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 – Highlights “best interests of

child” standard in custody adjudication and mediation.

• Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369 – Links right to speedy justice
under Article 21 to ADR promotion.

5. Comparative and International Literature

• Radmacher v. Granatino, [2010] UKSC 42 – UK Supreme Court endorses binding

prenuptial agreements, often mediated.

• Lisa Parkinson – Comparative mediation models from Europe for cross-border family
conflicts.

• Jutta Brunnee – Explores enforcement norms in international law applicable

analogously to ADR settlements.

• Bishop v. Bishop, [2015] FamCA 999 (Australia) – Australian model of Family Dispute
Resolution (FDR).

• V. Ravi Chandran v. Union of India, (2010) 1 SCC 174 – Cross-border child custody
case with relevance to Hague Convention and mediation.

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