Family is one of the most important

Family is one of the
most important institutions in the society. The growing trend shows a constant
breakdown of this institution. It is not just an emotionally traumatic
experience but also results in financial, social and psychological
repercussions. Hence when these matters come to court, the court has always
tried to bring about reconciliation in the marriage even if they are appeal
cases.

This has lead to
liberalization in the divorce laws all over the global. The increasing rates in
cases of judicial separation and divorce have lead the judiciary to take a more
liberal take on the matter. The focus is now on how to mitigate the
traumatizing effects of the breakdown and hence the courts now look into any
possibility of reconciliation under a positive duty to endeavor to bring about reconciliation.1 In India, marriage is
considered as a sacred institution. The Family Courts Act imposes an obligation
on the Courts to attempt for reconciliation and preservation of marriage before
granting the decree for divorce.

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The process that is
current legal framework that is being used by the judiciary is not only long
and tedious but also taxing emotional, financial and physically. In the court
both the spouses are put up against each other and the need is to win a war.

But what is actually needed a settlement between both the parties so as to
maintain the peace and tranquility. The pressure to provide a special court was
always present as this would help in the speedy settlement of family related
dispute. This is where the need for an alternate forum comes in. This where for
the first time, a non adversarial approach was demanded for. This meant using
alternate methods like counseling to secure speedy settlement of these
disputes.

In the 59th
Law Commission Report, the committee stated the need for developing a separate
forum for the matters related to ‘family’. It stressed on the fact that the
courts needed to develop a new, radical method different from the existing ordinary
civil proceedings so that reasonable amount of effort can be put into
settlement before the commencement of trial. This resulted in the amendment of
Civil Procedure Code, which provided for a special procedure to be adopted in
the matters related to family. Since there was no change in the way how the
courts dealt with the family related matters, the need of the hour became to
establish the family courts.

Family Courts Act was
hence finally passed in 1984. Section 3, of the Act provides for a Family Court
to be established in every area of a State where the population exceeds one
million. This has to be made by the State Government after consultation with
the High Court of the State. The Central Government only has the authority to
provide for the qualification of the Judges of Family Courts and nothing else
according to this act.

The Act provides that
persons who are appointed to the family courts should be committed to the need
to protect and preserve the institution of marriage and to promote the
settlement of disputes by conciliation and counseling. Preference would also be
given for appointment of women as Family Court Judges.  The Government has taken note to ensure appointment
of more number of women judges to the Family Courts as stipulated in the Family
Court Act, 1984. According to Section 6 of the Act, the State Governments are
also required to determine the number and categories of counselors, officers
etc. to assist the Family Courts.

Specialized courts,
viz., Family Courts, about 84 in number, have been established in 18 States  and  Union
  Territories,  since  the
 year  1984,  to
deal with the issues pertaining to family  matters, like  marriage,  divorce, child custody, guardianship, maintenance,
etc.

This has also brought
the civil and criminal jurisdiction under the same roof. This was made to
ascertain that all litigation centralizing women be brought under the same
roof. This also brings the added advantage of civil suits with criminal nature
so as make sure of quicker disposal of these cases.

The Legal Services
Authorities Act, 1987, amended in 2002 provides access to justice for women. It
provides for alternate dispute resolution mechanisms through the Lok Adalath
(mediation and conciliation) and undertakes Parivarik Adalat (dealing with
family disputes) in collaboration with the National and State Commissions for
Women. Due to these alternate mechanisms many of the disputes have been
resolved out of court, thus providing women access to speedy justice and
resolution of their problems.

This project aims to
focus at the present situation alternate dispute settlement in matrimonial
matters in India. As we progress further in this project we will see how
counseling is aimed to be a more humane approach to the idea of divorce. Even
if we presume that the chance of saving the marriage is not high the couple
gets to settle the matter in their own manner without having to go through the
tedious process of court proceedings.

 

Chapter 2: Alternate
Settlement Methods

There are several
special methods for settlement of matrimonial  disputes.  They  are:

1.    
Counseling/
Conciliation: the process of trying to solve any matrimonial dispute by
resolving their disputes or making a smooth transition into making provisions
for separation. 

2.    
Statutory Provisions:
The statues of the country have provided for certain mechanisms within the
statue which will is in-build in the system to help the couple. Not just the
personal laws but also other statutes such as CPC and CrPC have also provided
for this.

3.    
Mediation: In this
method a neutral third party is involved so as to make sure that the problems
between the parties are resolved in an equitable and mutually acceptable
manner.

4.    
Arbitration: This
method is not very common in this field because of obvious hindrance it might
create. The grounds of the arbitrator might not be upto the standards of a
judge who will follow a set of fixed principles.

There are also certain
other special procedures in regards to these family matters, which have been
introduced in the statutes of India. Several forums have been setup to like Lok
Adalats and special police cells which specifically look into these natters.

Voluntary Action
Bureaus and Family Counseling Centers have been set up in police stations to
provide counseling and rehabilitative services to women and children who are
victims of family maladjustment. Special Courts , viz. , Family  Courts and  Fast Track Courts have been set up and some
courts are exclusively meant to address crimes against women. Gender
sensitization of enforcement agencies especially the police and the judiciary
is being imparted periodically.

Counseling, according
to the Merriam Webster dictionary, has been described as:

“Advice and support
that is given to people to help them deal with problems, make important
decisions, etc”

Counseling in the
legal field has become a method to help couples dissolve their differences or
come to amicable terms of settlement of separation. Counseling and conciliation
go hand in hand. Conciliation, according to the Merriam Webster dictionary, has
been defined as:

”                                         

1.    
to gain (as goodwill)
by pleasing acts 

2.    
to make
compatible :  reconcile

3.    
Appease.”

Even though the usual
trend states that the staying together of the couple is a ‘success’ and them
deciding to part is a ‘failure’, we can see a drift and a higher acceptance of
these alternate methods. Marital reconciliation is designed to keep the
marriage legally and even emotionally intact, but even if that fails, a very
significant role of this process is to assist the parties face the pending and
post-divorce situation.

Judge Bowkers of the
Edmonton Court Conciliation Project observed2:

“Thus
conciliation proceedings do have great value even if the chances of saving the
marriage are not high; at least it facilitates the process of settlement. It is
however important that these should not be conducted in an atmosphere of awe or
coercion. As mentioned by Derrett3, referring
to a case where the court was trying reconciliation between the parties—the
court suggested to the husband whether or not he could see his way to express
for what the wife was feeling sore about and the husband said, “if you so
direct, I am ready to express my regret.” Thereupon the judge immediately
made it clear, “direct we would not for reconciliation is reconciliation,
not coercion, far less judicial coercion””

Also several statutory
provisions have been provided under the India personal laws making it mandatory
to make efforts of reconciliation in a marriage.

Under the Hindu
Marriage Act. 1955 it was the duty of
the court pre 1976 to conduct efforts of reconciliation by itself but these
were short sessions which were usually not fruitful. Due to limited time there
was not much that was being looked into by the judges. Realizing this problem
the amendment of 1967 was brought to section 23 of this act, making way for
seeking the help of other individuals.

1 Derrett J.D.M., “An Introduction to Modern Hindu Law, (1963) at 177 quoted
by Werner F. Menski in “Hindu Law: Beyond Tradition and
Modernity” (2003) at p. 443 footnote. 30.

2 Quoted by M.M.

Manchester and J.M. Wheton, ‘Marital Conciliation in England and Wales’, International and Comparative Law Quarterly, 1974, pp. 339, 343.

3 J. Duncan M. Derrett “A Critique of Modern Hindu Law” (1970) at 331, referring to Bejoy v. Aloka, AIR
1969 Cal 477 TA “Bejoy v. Aloka, AIR 1969 Cal
477” “Bejoy v. Aloka, AIR 1969 Cal 477” 1