This Article is authored by Advocate Anil Malhotra.
Matters of the family which can be repaired must be mediated and settled by sewing and patchwork.
Today, the nuclear Indian family is plagued by new generation ills. Forced marriages, honour killings, live-in relationships, parental child removal, inter-country adoptions, and surrogacy defy solutions in codified laws. Conventional family law framers never visualised these societal complexities which have mushroomed recently. The statutory law has not caught up with the maze of intricacies which dog these family law issues.
Provisions for settlement of disputes outside the court find a prominent place in the Civil Procedure Code, the Codified Marriage Laws and the Family Courts Act. However, settlement, reconciliation and mediation in family law matters are largely unutilised. Upholding the salutary provisions to endeavour reconciliation in the first instance, the Supreme Court in the Jagraj Singh vs. Birpal Kaur case (2007) clearly confirms that settlement efforts in matrimonial matters are not an empty, meaningless ritual. Matters of the family which can be repaired must be mediated and settled by sewing and patchwork. Human relationships must be bonded by settlement and, as far as possible, not litigated in court.
Litigation — whether divorce, maintenance, alimony, child custody or any other matrimonial cause — should not be viewed in terms of failure or success of legal action. The amicable settlement of family conflicts is a social therapeutic problem. These disputes should be reconciled within the family fold so as not to disrupt the family structure. Adjudication is entirely different from conventional civil or criminal proceedings. Reverberations of a family dispute are felt in society. Their effective resolution by mediation or conciliation may provide lasting solutions for overall good.
The Supreme Court in the Gaurav Nagpal vs. Sumedha Nagpal case (2009) emphasised that efforts should be made to bring about conciliation to bridge communication gaps to prevent people from rushing to courts. The pressing need in the current social milieu is to create an infrastructure machinery for alternative disputes resolution (ADR) mechanisms. Particularly, marriages solemnised in India and fractured abroad in the 30-million NRI community can be mended and settled. It is these limping unions which need reconciliatory formulas in India to prevent them from being split. Conflicts arising locally or overseas should not deteriorate into other ancillary issues multiplying the problem.
The Mediation Cell of the Punjab and Haryana High Court, which attempts to patch up matrimonial disputes, is an extremely positive development. The culture of settlement needs propagation. ADR cannot see the light of day unless citizens participate in the movement.
The conventional people's courts can be a means to this end. Individual initiatives need awakening by self-consciousness, and not by the implementation of laws. Spouses, parents and families need to realise the advantages of ADR in the family structure. Matrimonial relief carved out of settlement will serve better than the results obtained by adversarial litigation involving time, effort, finances and, above all, breaking-up of a family.
Issues of marriage, divorce and children ought to be put before family courts. Trained counsellors, mediators and advisers should resolve them mutually. Superior courts themselves must inject the spirit of mediation in appellate jurisdictions. A unanimous consensus saves a home, a family and a societal foundation. Mandatory reconciliation procedures should be affirmed with the seal of the court conclusively without any challenge.
Creating more courts under the Family Courts Act will contribute to the resolution of family law disputes through ADR. The current handling of matrimonial litigation by conventional courts is a poignant reminder of what prevails.
Trained counsellors, professional mediators and, above all, specialist family law judges could all form part of a well-organised adjudication team. This would give a new dimension to ADR in family law.
Laws to promote ADR exist but the infrastructure, professional assistance and the medium through which these beneficial reconciliatory mediation procedures are to be implemented are lacking. The package is wholesome. The numbers are huge. The need is dire. The solution is inbuilt. An effective implementation machinery is required. The lawmakers must aid, assist and implement ADR.