The past of ADR in India predates the Indian judiciary’s modern adversarial model. In recent years, as law courts all over the world have been overburdened by pending litigation, ADR has become a commonly recognized method of resolving conflicts involving any disagreement involving dissent between the parties. Litigation or a court proceeding is a stressful and costly experience. Going to court for child custody, divorce, inheritance, or commercial disputes can cost a lot of money, time, and emotional anguish. It makes little difference whether the litigation is about a family dispute or a business dispute; it is both frustrating and costly. To settle these types of conflicts, many organizations and parties are turning to these conflict resolution approaches. It’s a different approach to dispute resolution and justice than conventional litigation. Several new and advanced ADR techniques have emerged in recent years.
WHAT IS ADLTERNATIVE DISPUTE RESOLUTION?
The use of non-adversarial methods for resolving legal disputes is referred to as an alternative dispute resolution (ADR) scheme. ADR works on the settlement of a wide range of legal disputes, including civil, criminal, family, and industrial disputes. It is essentially a series of dispute resolution modes that assist the parties in a dispute in reaching an agreement without bringing it to a law court. A third party is normally involved in these modes, who assists them in resolving the dispute. One of the most important features of ADR is that it resolves conflicts in a cost-effective manner that takes less time and produces credible outcomes. ADR is widely used in industrial and corporate conflicts. As a result, the judicial load is lighter. The “Arbitration and Conciliation Act of 1996” and the “Legal Services Authority Act of 1987” are the laws that govern Alternative Dispute Resolution. However, ADR settlements or awards may be non-binding and advisory, or they may be enforceable without the right to appeal. Mediation, arbitration, conciliation, negotiation, and Lok Adalat are all types of ADR mechanisms. “Section 89 of the Civil Procedure Code, 1908” gives the parties the option that if it appears to the court of law that there are elements of settlement outside the court, it will formulate the terms of the possible settlement and refer it for- Arbitration, Conciliation, Mediation, or Lok Adalat.
Arbitration is a more versatile, cost-effective, reliable, and time-saving way of settling disputes. Before the emergence of the dispute, there should be a valid arbitration agreement between the parties, or the parties must have an arbitration clause in their contract related to the dispute. Any contracting party may initiate the arbitration process, and the parties have the power to select an arbitrator that they believe is competent and impartial. The impartial third party will issue an award based on the facts of the case, the evidence and documentation submitted, and after hearing both parties, which will be binding if both parties agree.
WHY ARBITRATION OVER LITIGATION?
When it comes to ADR vs. Litigation, ADR has evidential advantages over traditional litigation thanks to its tools and various mediation procedures. There are the benefits:
- Economic – traditional litigation isn’t the most cost-effective way to obtain redress. A litigation suit’s expenses include lawyer fees, court fees, notary changes, and so on; ADR, on the other hand, is cost-effective and requires only one-time fees.
- Less time-consuming – ADR is a case-based model, which means the tribunal or a third party considers only one case at a time. ADR speeds up the process by being more attentive, vigilant, and goal-oriented.
- Unbiased and prejudiced – A case cannot be resolved unless the parties agree to anything. The arbitrator cannot call the ADR process a success until both parties are pleased with the results and agree to the award/settlement.
- Highly confidential in nature – Litigation is a public matter that is open to the public. The aggrieved parties profit from the protection and confidentiality afforded by ADR. However, the parties’ agreement must be obtained before the details of the case can be made public.
BRIEF INSIGHT INTO FAMILY LAW IN INDIA
To maintain a secular stance along with allowing religions to protect themselves, the Indian Parliament enacted the following family laws, which apply to the religious communities defined in the respective enactments:
- The “Hindu Marriage Act, 1955″, is an act to amend and codify the law relating to marriage among Hindus. It applies to anyone who is a Hindu, Jain, Sikh, or Buddhist, as opposed to a Muslim, Christian, Parsi, or Jew.
- The “Special Marriage Act, 1954″mandates a special type of marriage in certain circumstances, as well as the registration of such and other marriages and divorces.”
- The “Parsi Marriage and Divorce Act, 1936”was enacted to govern and regulate the law governing marriage and divorce among Parsis in India.
- The “Indian Christian Marriage Act, 1872” consolidates and amends the law relating to the solemnization of Christian marriages in India.
- The “Indian Divorce Act, 1869” states the law relating to divorce and matrimonial cases involving Christians in India.
- Muslims in India are governed by the “Muslim Personal Law (Shariat) Application Act, 1937”, the “Dissolution of Muslim Marriages Act, 1939”, the “Muslim Women (Protection of Rights on Divorce) Act, 1986”, and the “Muslim Women (Protection of Rights on Divorce) Rules, 1986”.
An individual of any religion may approach the specified judicial forum as provided by the applicable legislation for the adjudication of all matrimonial and other ancillary disputes. Every state in India has a well-organized system of designated civil and criminal judicial courts that operate under the overall jurisdiction of the state’s high court.
Furthermore, the Family Courts Act of 1984 aims to create family courts to facilitate conciliation and ensure the prompt resolution of conflicts involving marriage and family relations.
FAMILY DISPUTES AND FAMILY LAW ARBITRATION
The premise behind ADR is amicable dispute resolution, and it is one such mechanism that allows the parties to sit down and reflect on what they genuinely want instead of focusing on what they need to seek or what the law will allow them to fight for. At some point in their lives, all families face difficulties that can be classified as a family dispute. Disputes between husband and wife, relationship breakdowns, children’s welfare, financial support for children, and property settlement are examples of such matters. According to the Family Courts Act, family disputes are described as follows:
- A lawsuit brought by the parties to a marriage seeking a nullity order, restoration of conjugal rights, judicial separation, or dissolution of the marriage.
- A declaratory action concerning a person’s matrimonial status.
- A legal action brought by the partners of a marriage over the property of one or both of them. In the event that such conditions in a marital partnership arise, a suit demanding an injunction is filed. Any person’s validity is the subject of a declaratory action.
- A suit for financial assistance or upkeep.
- A lawsuit involving a minor’s guardianship or custody.
INDIAN LAWS FOR ARBITRATION OF FAMILY MATTERS
It’s important to remember two main clauses from the Code of Civil Procedure:
- “ORDER XXXIIA 6, Code of Civil Procedure”: Suits Relating to Family Matters – It’s important to keep in mind that the CPC governs all proceedings under the Hindu Marriage Act and the Special Marriage Act. When it comes to family affairs, an amendment to the Code of Civil Procedure may be made in 1976. In all matrimonial cases, this provision mandated the use of mandatory arbitration procedures.
- “Section 89, Code of Civil Procedure”: Settlement of Disputes Outside the Court – To enforce the 129th Report of the Law Commission of India, all courts were ordered to refer disputes to arbitration, conciliation, mediation, or judicial settlement for resolution once the issues were framed. Only if these alternative dispute settlement approaches failed was it thought that litigation could be pursued. To achieve this aim, Section 89 was written in such a way that it allows parties to reach an amicable, out-of-court settlement.
Further, “Section 5, Family Courts Act, 1984”, lays out the provisions for the Government’s need for the “Association of Social Welfare Organization” to help family court bring family disputes to settlement.
“Section 9, Family Courts Act of 1984” requires the court to offer a reasonable opportunity to reach a settlement by negotiation before relying solely on litigation.
Arbitration is one of the most convenient and sorted ways of reaching a settlement in family disputes when both the parties are of the opinion of avoiding the baseless opinions of the public. Though arbitration in a family settlement is less common as compared to mediation and conciliation, there is a high possibility of it taking a pace upwards. Not all cases are suitable to fit the process of arbitration due to the lack of uncodified laws. The legislation should be concerned with either drafting new laws or amending the existing laws to not only cater to the requirements of the citizens but also save the judges from the piled-up stack of pending cases. Opting for arbitration is not only beneficial on materialistic basis but also in mental and emotional aspects.
Author(s) Name: Tanisha Gautam (Institute of Law, Nirma University)