Courts’ solution in family disputes often artificial: SC judge

Supreme Court Judge NV Anjaria on Sunday said solutions arrived at in family disputes through courts often become artificial, with parties feeling that justice has been foisted upon them, which becomes “illusory and partakes injustice”.

Mediation is the most befitting Alternative Dispute Resolution (ADR) mechanism for resolving family problems as they are “human disputes arising out of human sentiments”, Justice Anjaria said. He was delivering the keynote address at the Eastern Zone Regional Conference on ‘ADR vs Adjudication in Family Disputes: Challenges and Way Forward’ here.

“Forget our sanskar, the sanskar of Bharat, Vasudhaiva Kutumbakam, now we are struggling to keep even a single family united and one,” the judge said, referring to the rise in family litigation.

Noting that participants had “fruitfully discussed how to counter the explosion of family dispute cases and the way to increasingly use the alternative dispute resolution system”, Justice Anjaria said the phenomenon of multiplicity and rise in family disputes was noticed as far back as 2008 by Justice Kurian Joseph. He said that family disputes are human disputes arising out of human sentiments and human sensitivity. “The solutions arrived at in the family disputes in the courts or by judge-made law often become artificial. In many cases the parties would feel that justice is foisted upon them and when the justice is foisted upon or imposed it is illusory, it is illusive, and it partakes injustice,” the SC judge said.

Solution to family dispute is also a process of social engineering, he added at the concluding function of the two-day conference.

Quoting from a case, Justice Anjaria said, “The recent litigation trend in matrimonial disputes indicates that a matrimonial dispute between the parties could generate at least half a dozen cases.”

Access to justice shall not be handled by multiplication of litigation by taking recourse to all possible legal remedies before available forums, he said.

In the present times, the situation is worse, and there is a cascading multiplication of family disputes, he added. Justice Anjaria asked the gathering from the legal fraternity of Northeastern states whether the Family Courts Act has been viewed from a different angle.

“Have you read it between the lines, the provisions? The objective reason says that it was enacted for the settlement of the family disputes. The emphasis was on conciliation and achieving socially desirable results. Adhering to rules of procedure was not contemplated,” he said.

A judge in the family court has to play different roles, the Supreme Court Judge said.

“He has to be a conciliator; he has to arbitrate; he can even arbitrate the disputes between the husband and wife or family members. He has to be a mediator in the resolution of the disputes. His task is really challenging,” he added.

“But the Family Courts Act has perhaps not achieved the desired. And we have failed to extract what we should from the working of the Act,” the judge said.

It is in this light that the need arose to invent and discover the use of ADRs, Justice Anjaria opined.

“Amongst the ADRs, the most befitting alternative dispute resolution system to solve family disputes, I believe, and respectfully believe that the answer will be unanimous. It is mediation,” he added.

Mediation takes care of shortcomings in the legal process, the apex court judge stressed.

“Mediation is suitable to resolve family disputes because it is a method which explores human psychology and, in that peculiar way, explores the human psyche; it searches for the solution of the disputes. It is a win-win situation for both sides,” Justice Anjaria said.

He said courts are, in a way, multi-door courthouses as different kinds of ADR systems -- Lok Adalat, arbitration, conciliation, mediation -- are available.

“This multi-door courtroom concept can be applied to refine the mediation process. The family disputes can be screened at the beginning, depending upon the character of the dispute and controversy involved, and then it can go to an expert mediator in that respective area, which will make mediation more efficient and speedier also,” he said.

Highlighting a lacuna in the mediation process and the Mediation Act, Justice Anjaria said many mediations concerning breakdown of matrimony result in settlement for divorce by mutual consent.

“If the matter comes before the Supreme Court, the Supreme Court deals with it under Article 142. But courts below, including High Courts, have no power to readily pass a decree of dissolution upon the mediated settlement. The settlement would remain, but the decree would not be passed. The parties will have to file a joint application and have to undergo one more round of litigation,” he added.

Referring to Section 27 of the Mediation Act, which deals with enforcement of mediated settlement and agreement but has not come into force so far, he said it provides that the settlement agreement should remain binding and enforceable as per the provisions of sub-section 2.

“But even if this section comes into force, I have my own doubt that the court can readily pass the divorce decree upon mediated settlement. This is because of Section 55, which says the provisions of the Act to have overriding effect on mediation and conciliation contained in other laws,” he said.

Justice Anjaria said that even if Section 27 becomes alive and comes into force, it will not be possible for courts, except under Article 142, to give effect to the divorce settlement and pass a decree readily.

“So this is a legislative area which needs perhaps rectification,” he added.