Alternative Dispute Resolution in Family and Matrimonial Disputes

Family disputes are the clearest case for settlement and the most delicate. The parties have a continuing relationship, often mediated through children; the questions are rarely capable of a clean legal answer; and a contested trial worsens what it is meant to resolve. Indian law accordingly makes reconciliation a statutory duty of the court in matrimonial causes, provides for counsellors in the Family Court, and permits reference to mediation and Lok Adalat. It also draws firm limits: the status of marriage cannot be altered by agreement alone, and matrimonial disputes are not arbitrable.

1. The Statutory Duty of Reconciliation

The duty is reinforced elsewhere. Section 23(2) of the Hindu Marriage Act, 1955 requires the court, before granting relief, to make every endeavour to bring about a reconciliation between the parties, except where the ground of relief is one of the grounds specified in the proviso, such as conversion, renunciation or unsoundness of mind. Section 34(3) of the Special Marriage Act, 1954 is to the same effect. Section 6 of the Family Courts Act, 1984 provides for counsellors and other professionals attached to the court, and Section 13 of that Act excludes the right to be represented by a legal practitioner as of right, though the court may seek the assistance of an amicus curiae.

2. Why These Disputes Suit Settlement

• The relationship survives the litigation. Custody, visitation, maintenance and the upbringing of children require cooperation over years, which a decree cannot produce.
• The useful outcome is an arrangement rather than a finding. A schedule of visitation, an allocation of school expenses or an arrangement for a jointly held house is not a relief the court could grant on the pleadings.
• Privacy matters more than in any other class of case. Allegations made in a contested matrimonial trial are difficult to withdraw and harm the parties and the children.
• Delay causes particular damage. A custody or maintenance question left undecided for years is effectively decided by the passage of time.
• The claims are interlinked. Divorce, maintenance, custody, return of stridhan and the criminal complaint under Section 85 of the Bharatiya Nyaya Sanhita, 2023, corresponding to Section 498A of the Indian Penal Code, 1860, are usually parts of one quarrel and can only be resolved together, which no single court can do.

3. The Routes Available

1. Counselling under the Family Courts Act, 1984, conducted by counsellors attached to the court under Section 6, with the report and the process kept separate from the trial.
2. Reference to mediation under Section 89 of the Code of Civil Procedure, 1908, ordinarily to a court-annexed mediation centre, which does not require the consent of the parties.
3. Mediation under the Mediation Act, 2023, including pre-litigation mediation under Section 5 and reference by a court under Section 7, with the settlement enforceable under Section 27.
4. Lok Adalat, frequently used for maintenance claims and for the disposal of connected proceedings once the main terms are agreed.
5. Settlement in the Supreme Court and High Courts, where the parties agree on a package and seek dissolution by mutual consent together with the quashing of the connected criminal proceedings.

4. The Limits

Two further limits deserve notice. A settlement affecting the rights of a child must satisfy the welfare principle, and the court retains the power to modify custody and maintenance arrangements on a change of circumstances, since these are never finally closed. And a party who agrees to a settlement in mediation may still withdraw consent before the second motion in a petition under Section 13B; the statutory requirement of consent subsisting at the time of the decree cannot be dispensed with by an agreement to the contrary, though the Supreme Court has exercised its power under Article 142 of the Constitution to dissolve a marriage that has irretrievably broken down where the terms were performed.

5. How a Family Mediation Is Conducted

Practice in court-annexed centres follows a settled pattern. The mediator meets the parties jointly to explain the process and the confidentiality that attaches to it, and then separately, since much of the information in a matrimonial dispute cannot be stated in the presence of the other party. Children are ordinarily not brought into the process, and where their wishes are relevant the court rather than the mediator ascertains them. The terms, when agreed, are reduced to writing covering every connected proceeding, including the criminal complaint, the maintenance application, the return of articles and the arrangements for the children, and are placed before the court for a decree or for disposal in terms of the settlement. Sections 22 and 23 of the Mediation Act, 2023 protect what was said in the process, and the principle in Moti Ram (D) through LRs v. Ashok Kumar, (2011) 1 SCC 466 prevents the mediator from reporting anything beyond the fact of failure.

6. Related Topics and Provisions