Discuss the role of Family Courts in resolving family disputes as part of the Alternative Dispute Resolution (ADR) system

 

   Discuss the role of Family Courts in resolving family disputes as part of the Alternative Dispute Resolution (ADR) system.


Ø Family Law Arbitration

Family Law arbitration is a process in which a hubby and woman, agree to submit one or further issues arising out of their present or previous relations as consorts and/ or their relations as parents of the same child or children, to a neutral third party or parties for a resolution that will be final and binding on them.
However family law arbitration isn't confined to conjugal matters alone. It also entails finding a resolution to issues similar as guardianship of children and their weal, conservation and fiscal support and other ancillary issues.

Ø Family Law Arbitration In India

●      A Detail Preface of the Indian Family Law System
The Indian Parliament in Order to maintain a secular station while also enabling religions to cover themselves has legislated the following family laws which are applicable to the religious communities defined in the respective enactments themselves

●      The main marriage law legislation in India which is applicable to a maturity of the population is The Hindu Marriage Act, 1955, which is an act to amend and codify the law relating to marriage among Hindus. It applies to any person who's a Hindu, Jain, Sikh or Buddhist i.e., anyone who isn't a Muslim, Christian, Parsi or Jew.
Farther, with regard to particular matters, Hindus are governed by the Hindu Succession Act 1956 (an act to amend and codify the law relating to intestate race among Hindus), The Hindu Minority and Guardianship Act 1956 (an act to amend and codify certain corridor of the law relating to nonage and custodianship among Hindus) and the Hindu Abdications and Conservation Act 1956 (an act to amend and codify the law relating to abdications and conservation among Hindus).

●       The Special Marriage Act 1954 provides for a special form of marriage in certain cases, for the enrollment of such and certain other marriages and for divorces under this act.

●      The Parsi Marriage and Divorce Act of 1936 seeks to govern and regulate the law relating to marriage and divorce among the Parsis in India.

●      The Indian Christian Marriage Act 1872 is an act that consolidates and amends the law relating to the solemnization of the marriages of Christians in India and the Indian Divorce Act, 1869 states the law relating to divorce and matrimonial causes relating to Christians in India.

●      The Muslim Personal Law (Shariat) Application Act 1937, The Dissolution of Muslim Marriages Act 1939, The Muslim Women (Protection of Rights on Divorce) Act 1986 and The Muslim Women (Protection of Rights on Divorce) Rules 1986, applies to Muslims living in India.

Ø Does the Indian Law provide for Arbitration of Family Matters?

All matters which may form the subject- matter of civil action affecting the rights, or in other words all disputes between parties relating to private rights or obligations which civil Courts may take cognizance within the meaning of Section 9 of the Civil Procedure Code 1908 may be appertained to as arbitration.
This, thus, makes family disputes suitable for arbitration. Still, this can be done within the limits set by the law. An arbitrator cannot grant a divorce or an dissolution but can decide on certain other things such as how to divide property.
At this juncture, it's essential to make a note of two important provisions of the Code of Civil Procedure:

·        Section 89 of the Code of Civil Procedure Settlement of disputes outside the Court

·        Order XXXIIA 6 of the Code of Civil Procedure Suits Relating to Matters Concerning the Family.

Ø Section 89 of the Civil Procedure Code

In Order to apply the 129th Report of the Law Commission of India, all courts were commanded that once the issues were framed, disputes should be appertained moreover to as arbitration, concession, agreement or judicial agreement for resolution. It was felt that only in the event of failure of these alternate disagreement resolution methods, should action do.
In agreement with this thing, Section 89 was articulated so as to give parties with an occasion to conclude for an amicable, out of court agreement.

Ø Order XXXIIA 6 of the Code of Civil Procedure

It's essential to note that all proceedings under the Hindu Marriage Act and the Special Marriage Act are regulated by the provisions of the CPC. When matters regarding the family are concerned, an correction can be made to the Code of Civil Procedure in 1976. This correction handed for the obligatory agreement procedures in all matrimonial proceedings.
At this juncture, it's also indispensable to take a note of Section 9 of the Family Courts Act which states that:
In every suit or proceeding, bid shall be made by Family Court in the first case, where it's possible to do so consistent with the nature and circumstances of the case, to help and persuade the parties in arriving at a agreement in respect of the subject- matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow similar procedure as it may suppose fit.

Ø Family Dispute

Family dispute means arising tensions in family relationships such as between wife and husband, children, and parents, between siblings or relatives, in respect of their personal or property rights.

 

Ø Kinds Of Family Disputes

1.     Domestic Disputes: A domestic dispute is generally any quarrel, which may or may not include violence, within a family or between members of the same household. The victims of domestic disputes may be children, old persons, an adult man/woman, a spouse, a cohabitant, a former spouse, or a former cohabitant. It may or may not include criminal behavior. 

2.   Restitution of Conjugal Rights: It is a kind of dispute when one of the spouses withdraws from the association of the other spouse without any reasonable cause. The aggrieved party has to approach the court of law. This is the first stage of legal remedy which can be sought by the parties. This remedy intends to protect the institution of marriage and tries to bring reconciliation between the spouses. 

3.   Break Down of Marriage: There exist typical situations where the marriage has all the external appearances of marriage, but none of the reality. The marriage becomes merely a shell out of which the substance is gone. In such circumstances, there is hardly any utility in maintaining the marriage as a façade, when the emotional and other bounds which are of the essence of marriage have disappeared.

4.   Testamentary and Intestate Property Issues: If a person dies leaving behind a 'Will' bequeathing his properties in favor of certain beneficiaries, then all his/her legal heirs shall be bound by such 'Will' and the properties shall be distributed as per the directions stipulated in the 'Will'. This type of succession of property is known as Testamentary Succession, and it is governed by the Indian Succession Act, of 1954. On the other hand, Intestate Succession is one where a person dies without leaving any 'Will', and the property left by the deceased shall devolve upon his/her legal heirs by the personal law applicable to him. 

5. Child Care and Custody: The parents and legal guardians have a legitimate right to child care and custody. In cases where there are disputes between the wife, husband, and other guardians as to the custody of the child or where the child is abandoned or an orphan, the court follows the principle that "Welfare of the child is the supreme lex" and paramount consideration is given to the wellbeing of the child.

 

References:

1. Characteristics of Alternate Dispute Resolution (ADR) and Advantages and Disadvantages of Alternate Dispute Resolution (ADR)

 2. Legal Education in India: Challenges, Innovations, and a Vision

3. Sources of Law

4. Salient features of Arbitration and Conciliation Act, 1996.

5. Disscuss the Differences between Arbitration and Conciliation

6. What type of Matter Cannot be subject to ADR (Alternative Dispute Resolution)

7. Discuss the historical background and objectives of the Arbitration and Conciliation Act, 1996

8. What is an Interim Measure by Court Under Section 9 of the Arbitration and Conciliation Act 1996

9. Differences between Arbitration and Mediation

10. Difference between Mediation and Conciliation

11. Difference between Arbitration and Conciliation

12. Difference between Arbitration and Negotiation

13. Discuss the State Legal Service authority and the Legal Service Authority Act

14. Compare and contrast Negotiation, Conciliation, and Arbitration as forms of Alternate Dispute Resolution (ADR)

15. Discuss the Role of Negotiation within the framework of Alternate Dispute Resolution (ADR)

16. Analyze the Process of Conciliation in Alternate Dispute Resolution (ADR)

17. Explain the key Elements of an Arbitration Agreement under the Arbitration and Conciliation Act, 1996

18. Explain the process of Appointment and Termination of an Arbitrator under the Arbitration and Conciliation Act, 1996

19. Powers and Duties of the Arbitral Tribunal in Managing the Arbitration Process

20. Discuss the Requirements for a Valid Arbitral Award and the Circumstances under which an Arbitral Award can be Set Aside

21. Discuss the role and significance of Tribunals, Lokpal, and Lokayukta in the Indian legal system as forms of Alternative Dispute Resolution (ADR)

22. Discuss how Lok Adalats facilitates quick and amicable settlement of disputes and the types of cases best suited for this forum

 

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