In this blog post, Angela D’souza,  a student pursuing her LL.B (4th year) from School of Law, Christ University, Bangalore and a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, discusses the process of Arbitration in matrimonial and family matters.

WHAT IS ARBITRATION?

At its core, arbitration is a form of dispute resolution. It is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute,[1] which is enforceable by the court. Arbitration primarily entails parties opting for a private, out-of-court settlement. The characteristics of an arbitration process are as follows:

1. Arbitration is consensual.

Arbitration can only happen if both parties concede to it. In most cases, consensus is obtained by way of insertion of an arbitration clause in the relevant contract.

2. The parties choose the arbitrator.

Since parties can choose their own arbitrator through mutual consensus, it creates space for a fair hearing and impartiality.

3. Parties choose other details of the arbitration proceedings.

Parties can choose other details of the arbitration proceedings such as the date, time, venue etc. This helps in the efficacy of arbitration proceedings by providing for the efficacy of the parties.

As a consequence, arbitration proffers several benefits including:

• Choice of the arbitrator: An essential characteristic of an arbitration proceeding, the choice of an arbitrator by the parties, is a huge advantage. For example, parties can choose a technical person if the dispute is technical in nature, so as to ensure better understanding of evidence.
• Efficacy: Arbitration proceedings are dealt with faster than court proceedings. They are shorter in length and the preparatory work is less demanding, thus leading to more efficiency.
• Privacy: Arbitration proceedings are confidential. They are conducted in a private meeting setup where the media and public are not permitted. Likewise, final decisions are not published and neither are they directly accessible. This enables protect the parties’ privacy, thus encouraging them to opt for arbitration.

FAMILY DISPUTES AND FAMILY LAW ARBITRATION

Family Disputes

All families at certain times experience difficulties which can be termed as a family dispute. Such disputes range from matters such as disputes between husband and wife, relationship breakdowns, children’s welfare, financial support for children and property settlement.

The Family Courts Act explains family disputes as:

• A suit between parties to a marriage for decree of nullity, restitution of conjugal rights, judicial separation or dissolution of marriage.
• A declaratory suit with respect to the matrimonial status of a person.
• A suit between parties in a marriage with respect to the property of the parties or either of them.
• A suit seeking for an injunction in the event of certain circumstances arising in a marital relationship.
• A declaratory suit with respect to the legitimacy of any person.
• A suit for financial support or maintenance.
• A suit with respect to the guardianship or custody of a minor.

Family Law Arbitration

Family Law arbitration is a process in which a husband and wife, or ex-husband and ex-wife, agree to submit one or more issues arising out of their present or prior relations as spouses 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.[2]

However family law arbitration is not restricted to spousal matters alone. It also entails finding a resolution to issues such as custody of children and their welfare, maintenance and financial support and other ancillary issues.

FAMILY LAW ARBITRATION IN INDIA

A Brief Introduction of the Indian Family Law System 

The Indian Parliament in order to maintain a secular stance while also enabling religions to protect themselves has enacted 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 majority 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 is a Hindu, Jain, Sikh or Buddhist i.e., anyone who is not a Muslim, Christian, Parsi or Jew.

Further, with regard to personal matters, Hindus are governed by the Hindu Succession Act 1956 (an act to amend and codify the law relating to intestate succession among Hindus), The Hindu Minority and Guardianship Act 1956 (an act to amend and codify certain parts of the law relating to minority and guardianship among Hindus) and the Hindu Adoptions and Maintenance Act 1956 (an act to amend and codify the law relating to adoptions and maintenance among Hindus).

• The Special Marriage Act 1954 provides for a special form of marriage in certain cases, for the registration 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.

For the adjudication of all matrimonial and other ancillary disputes a person of any religion can approach the designated judicial forum as prescribed by the relevant legislation. There is an organized system of designated civil and criminal judicial courts within every state in India which works under the overall jurisdiction of the respective high court in the state.

Furthermore, the Family Courts Act 1984 seeks to provide for the establishment of family courts with a view to promote conciliation in and to secure speedy settlement of disputes relating to marriage and family affairs.

Why opt for Alternate Methods of Resolution?

Despite the existence of a well-organized and established hierarchy of judicial courts in India, suits in India including those of family matters suffer a setback owing to inordinate delay.

Judicial proceedings, due to tedious procedures, loopholes in the law and mounting costs take a long time to resolve. This not only causes inconvenience to the parties involved but also results in a backlog of cases and overburdening of the courts.

Further, litigation does not always lead to a satisfactory result.[3] While it is expensive, it often ends up in bitterness. Alternative dispute resolution systems are not only cost and time effective; they preserve the relationship between the parties by encouraging communication and collaboration.[4]

Does the Indian Law provide for Arbitration of Family Matters?

All matters which may form the subject-matter of civil litigation 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 referred to as arbitration.[5] This, therefore, makes family disputes suitable for arbitration. However, this can be done within the limits set by the law. An arbitrator cannot grant a divorce or an annulment but can decide on certain other things such as how to divide property.[6]

At this juncture, it is essential to make a note of two important provisions of the Code of Civil Procedure:

1. Section 89 of the Code of Civil Procedure: Settlement of disputes outside the Court
2. ORDER XXXIIA 6 of the Code of Civil Procedure: Suits Relating to Matters Concerning the Family.

Section 89 of the Civil Procedure Code

In order to implement the 129th Report of the Law Commission of India, all courts were mandated that once the issues were framed, disputes should be referred either to as arbitration, conciliation, mediation or judicial settlement for resolution. It was felt that only in the event of failure of these alternate dispute resolution methods, should litigation proceed.

In accordance with this goal, Section 89 was worded so as to provide parties with an opportunity to opt for an amicable, out of court settlement.

ORDER XXXIIA 6 of the Code of Civil Procedure

It is 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 amendment can be made to the Code of Civil Procedure in 1976. This amendment provided for the mandatory settlement procedures in all matrimonial proceedings.

 

At this juncture, it is also indispensable to take a note of Section 9 (1) of the Family Courts Act which states that ‘In every suit or proceeding, endeavor shall be made by Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement 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 such procedure as it may deem fit.’

CONCLUSION

Therefore, although not compulsory, giving alternate modes of dispute resolution a chance in the resolution of family matters is the norm of Indian legal system. This practice should actually be given all the support that it can be given.

Opting for out of court settlements proves beneficial not only to the parties but also to the general public. The parties are benefitted through reduced costs and time lost, while the courts are a little less burdened. This allows for the speedy redress of other suits.

[1]http://www.wipo.int/amc/en/arbitration/what-is-arb.html (last visited Nov. 30, 2016).

[2] https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=14+J.+Am.+Acad.+Matrimonial+Law.+333&srctype=smi&srcid=3B15&key=30c87cbfd40c69ad2ce5b9f64d02e9e0 (last visited Nov. 30, 2016).

 

[3] Vini Singh & , Compulsory Mediation for Family Disputes?, 2 The Indian Arbitrator 3 (2010), http://www.arbitrationindia.org/pdf/tia_2_9.pdf (last visited Nov. 30, 2016).

[4] Id

[5] J.B. Mills v. Commrl Union Assurance AIR 1979 Cal 56 83 CWN 162.

[6] Id