Alternative Dispute Resolution and Family Dispute Resolution

ALTERNATIVE DISPUTE RESOLUTION AND FAMILY DISPUTE-RESOLUTION*[1]

Nothing is static, every thing is dynamic. Due to evolution of time every thing changes viz., process, tradition, way of living etc. The concept of dispute was very old and still in vogue. Alternate Dispute Resolution system is not a new phenomenon for the people of this country; it has been prevalent in India since time immemorial. Ancient system of dispute resolution made a significant contribution, in reaching resolution of disputes relating to family, social groups and also minor disputes relating to trade and property. Village Level Institutions played the leading role, where disputes were resolved by elders in their particular caste or kula and panchayat system, which was an informal way of mediation. In earlier days disputes hardly reached courts. Decisions given by the elderly council were respected by all. But subsequently boon accompanied bane, the very system lost its aura. The delay in justice dispensation, particularly in commercial and family disputes, causes great hardship and financial loss to the parties. In order to reduce delays in resolution of disputes, the Governments and the Judiciary are encouraging settlements or counseling techniques or conciliation which are part of ADR. In this present day, Life is a circus in the fast-moving 21st century. Juggling job responsibilities, work and home responsibilities, wage and age – it’s all a juggling act. Successful career aspirants don’t become obsessed with dropping the ball, because they know they will bounce back. Stay balanced on the high wire, and don’t be afraid to go a little off-balance.

Prevalence of gender biased laws and oppressive social practices over centuries have denied justice and basic human rights to Indian women. The need to establish the Family Courts was first emphasized by the late Smt. Durgabi Deshmukh.  After a tour of China in 1953, where she had occasion to study the working of family courts, Smt. Deshmukh discussed the subject with Justice Chagla and Justice Gajendragadkar and then made a proposal to set up Family Courts in India to Prime Minister Pt. Jawahar Lal Nehru.  Even after reformative legislation was enacted, implementation of reformed laws left much to be desired.  Though the women of India demanded establishment of Family Courts in 1975, the Government of India took ten years to pass the necessary legislation.  The Law Commission in its 59th report (1974) has also stressed that in dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary  civil proceedings and that it should made reasonable efforts at settlement before the commencement of the trail. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the Courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was therefore, felt, in the public interest, to establish family courts for speedy settlement of disputes.

Section 9 of the Family Courts Act, 1984 obliges a family court to persuade the parties to arrive at a settlement by conciliation.

Family dispute Resolution got more adjustability, why because APFC (HC) Rules enable the Family Courts to held sittings outside normal working hours and holidays if the Judge considers it necessary.

The Chief Justice of Bombay High Court has introduced an innovative mechanism. Those Judges who are interested in spending two hours after office hours in mediation, with training on the aspects of mediation, will take up matters of family disputes.

Section 23 of Hindu Marriage Act, 1955 recognised the need for ADR. Family Courts Act, 1984 also insisted on conciliatory approach to settle family problems. The process of conciliation received statutory recognition in CPC O.XXXII A, S.13 of HM Act. Though the women of India demanded establishment of Family Courts in 1975, the Government of India took ten years to pass the necessary legislation.  It is a matter of regret that, even though the Family Courts Act was passed in 1984, in 1996 in
AP, they were established.

Genesis of Family Disputes:-

1. Ego often called self-respect
2. Balance their career and family, often leads to stress and strain i.e Family V Career.

Recently, there was a conversation between two young women at a popular coffee shop, one woman advising other friend woman, soon to be married and not to get pregnant, concentrate on career by taking pills. When the contraceptive pill was first introduced, it was a triumph for working women, a symbol of liberation. Women then were keen to get on it; today we know the side effects include “blood clots, diabetes, depression or anxious emotional states” and many women are keen to get off it.

The Hyderabad city has already earned a few sobriquets like being IT Development and the country’s suicide capital. And now, the city is heading towards earning the notoriety of being the country’s divorce capital after Bangalore. The rising number of divorce cases in Hyderabad  has needed the state government to decide on setting up additional  family court in CCC, Hyderabad..

Most applicants were found to be in their late 20s and early 30s, and the figures are only rising in the burgeoning corporate world here. While the number of applicants from the IT industry has always been high.  Experts said women from the lower and middle classes a steady and stable income, reducing their financial dependency on their husbands.  Financial stability had helped these women develop a strong element of individual choice, giving them an opportunity to formalise their marital dissatisfaction through divorce, experts said. Sources from the family courts informed that nearly 80% of the divorce cases were filed under the Hindu Marriage Act 1955.

While 70% of the total number of cases were filed by IT professionals, BPO employees and other private companies, the remaining 30% were filed by members of the other strata of the society, they added.  Family problems are caused by a number of different reasons; ex. not being open with one another, not spending enough time together, drug and drinking problems, abuse and neglect... The reasons ranged from family disputes, bad debts, ailments and other miscellaneous reasons.

In case of marital disputes, professional counselling assumes a vital role.  The root cause for differences between husband and wife become difficult to find, especially in case of divorce petitions where stereotypical allegations were made, he said. In this scenario, professional counselling becomes vital to unearth the true cause of the dispute and to bring about an amicable solution.

The  false reasons presented for divorce exacerbated the situation, as both the parties felt wronged, which made reconciliation that much more difficult. The need for professional counselling and said that there were many cases where people reported to her that the counselling was improper. The need of the hour was pre-marital counselling, so that people entering marriage could be aware of the commitments involved in the relationship.

There were three stages of counselling people with marital disputes.

The first was the initial state where the situation had not yet deteriorated to the extent of approaching the law, the second was at the police station where many with marital disputes turn up and the third was during divorce proceedings. So there should be a stress for the need for counselling during early stages itself.

Counselling is a process through which one person helps another by a purposeful conversation in an understanding atmosphere enabling him/her to cope more effectively with life problems. It may be the one of the resolution for family disputes to settle amicably. As counselling is a face -to - face communication, the counsellor must have the skills to understand his/ her clients, develop a friendly relationship and give complete, correct and clear information, using an easy language.

Family Counselling is one of the resolutive mode for family disputes, useful for:

1. Problems developing in one or more family members which affect all (i.e.: children's problems, anger, depression in one partner etc.)

2. Family or relationship change such as divorce, or children leaving home

3. Cultural and ethnic conflict within relationships

4. Individual Counseling

NEED:

Recenly at Vijayawada in Andhra Pradesh, Family Counselling Centre setup by the Police Commissioner in September last, couples, which are approaching the police with complaint, are returning home with a smile on their faces.

The counselling centre functions under the aegis of the Women Protection Cell located on the Commissionerate premises. Individual counselling is being given to both husband and wife, who approach the police to lodge a complaint related to domestic trouble.  Based on the seriousness of the issue, the police even use the services of legal experts and psychologists to solve the problem. The experts seek the case details from complainants and offer suggestions to resolve the issue in a peaceful manner.

Rapprochement

The police interference would not be there either in disposals of the case or any pressures over the members. The police should create the congenial atmosphere for the rapprochement of estranged couples explaining them the bitterness of life if they fail to live together.

Now family courts that are litigant friendly.

Imagine a courtroom complete with colourful walls, specially designed tables and chairs, games, a television and even baby sitters - all for kids.  Two ‘family courts’  inaugurated in Delhi  to sort out family disputes in congenial and supportive surroundings instead of overcrowded and repelling environs of regular courts.  The aim of having such courts is to give friendly atmosphere to the kids who come with feuding couples, he said.

One such family court is already functioning in Dwarka court complex. “After witnessing an overwhelming response for Dwarka court,   planning to extend it to all other district courts as well”.[2]

Suggestions:

1.To help ease the pressure on these family courts,  the government has  to provide them with necessary infrastructure and manpower.

2. To create awareness about the prevailing laws related to women and children.

 3.  To provide referral services like, free legal aid short vocational training and medical treatment.

 Conclusion:

Think for a minute:  - " Holding on to anger and ego  is like grasping a hot coal with the intent of throwing it at someone else; we  are the one who gets burned. "

THE END