This article is written by D.Srujana Naik VII Sem BBA LL.B,Mahatma Gandhi Law College during her internship with LeDroit India.
Keywords-Dispute solving,arbitration,mediation,Divorce,Potential of ADR
Abstract
Marriage is a life time commitment which must be respected by both husband and wife. When disputes arise between them their main aim must be to resolve the dispute but not divorce. Resolving of dispute can be done through many ways, in which Alternative dispute resolution is one. Alternate Dispute Resolution solves the dispute with the help of an arbitrator or mediator. Arbitration is the best way to solve the disputes within less time and in an effective manner.
Introduction
Marriage is an institution. Marriage is the base of the family. It provides legal status between wife and husband which is acceptable by society. Marriage is a ritual ceremony. Hunt defines marriage as “Marriage is the approved social pattern whereby two or more persons establish a family.” Marriage institution has been given high respect and honour and is treated as sacramental. Though wife and husband perform marriage to live together until death. Disputes may arise between them due to unforeseen circumstances. There are many ways to solve the dispute one among those is Alternative Dispute Resolution. Disputes can be resolved in the court or outside. Alternative Dispute Resolution is a set of practices and techniques of setting and solving legal disputes outside courtroom. It includes mediation, arbitratiom, conciliation, process in which an unknown person to both the parties is appointed who solves the disputes. Alternative dispute resolution is practiced because of its advantages over court rooms like cost effective, time saving, easy procedure, better communication and for faster settlements.
Types of Alternative Dispute Resolution
- Arbitration
It is form of non-judicial way to settle disputes. In this method dispute is submitted to an arbitral tribunal which passes a judgement and both the parties must respect the decision.
2. Conciliation
A third person solves the dispute by communicating to both the parties by helping them to solve the disputes
3. Mediation
In this process a mediator is involved who is neutral to both the parties and neutral to the dispute and finds a solution which is accepted by both the parties
4. Negotiation
In India negotiation is not recognised by law, Negotiation is a self counseling between the parties to solve the dispute on their own.
Alternative Dispute Resolution in settling Matrimonial disputes.
These days there are many problems arising between a husband and wife who doesnot will to go to court room solve their disputes in artibution centres. Section 89 of the Civil Procedure Code grants parties to solve their disputes out of court agreement. Both the parties must agree to solve the dispute through the ADR only then it wll be valid. Arbitration must be consensual. Both the parties must choose the same arbitrator. Decision made by the arbitrator must be acceptable and non-partial to one of the parties.
Marriage is something which holds emotional bonds between both husband,wife and children too. Such matters can’t always be solved in court rooms which doesn’t give utmost importance to the emotional feelings. Therefore Mediation in matrimonial disputes is found as the best form for solving matrimonial disputes. The role mediator must not be granting divorce but to bring a peaceful settlement between both the parties.
Hindu Marriage Act 1955, the Family court act 1984, Civil Procedure Code 1908, and the legal service authority act of 1987. The legal services act laid down the concept of arbitration mediation. Main motive of an arbitrator must be to stabilize the marriage. In Matrimonial Disputes Divorce should always be a last option to go because apart from wife and husband, their children and both the families suffer due to continuous quarrels, an effective mediation must be done to restitute the peace between them. Most of the small quarrels are erased by family elders, It is the duty of the arbitrator to give a chance for the couple to rectify their mistakes. If it is done through litigation all the legal proceedings which takes place may increase the gap between the wife and husband and may leave a permanent scar upon them. In the case of S. Thankikodi vs. Ramuthayee the court stated that it can only attempt to reconcile if it believes there is a possibility of saving rhe marriage and not otherwise.
The supreme court of India issued a historic Judgement in “Salem Advocate bar Association, Tamilnadu vs. Union of India, stating that mediation, conciliation, and arbitration must be used in court cases. However mediation must be done in a careful manner which helps in earning respect and confidence of the litigants. Awareness campaigns must be held to inform the general public about these mediation centres.
Conclusion
As courts take much time to solve a dispute necessity arose for solving disputes in a time effective manner. As a result which gave importance to the mediation centres that can handle disputes with empathy and giving importance to socail and emotional bond. Marriage can’t be easily solved because reconciliation of peace must be done. Lawyers must mainly focus on effective mediation and should try to establish better relation between both husband and wife by clearing their disturbances rather than making profit from the disputes.
