Alternative Dispute Resolution and Family Dispute

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Alternative Dispute Resolution And Family Dispute - Resolution

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 thiscountry; 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 59 th report

(1974) has also stressed that in dealing with disputes concerning the family, the Courtought 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, withtraining 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, itwas a triumph for working women, a symbol of liberation. Women then were keen to get on

it; today we know the side effects include ³blood 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 onlyrising 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 effectivelywith 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 µfamily 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. ³After witnessing an

overwhelming response for Dwarka court, planning to extend it to all other district courts as

well´.1

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. "

1 http://blog.taragana.com/law/2010/02/07/now-family-courts-

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Alternative Dispute Resolution and Family Dispute