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SUITS CONCERNING FAMILY MATTERS

PROJECT REPORT SUBMITTED TOWARDS FULFILLMENT OF THE SUBJECT :


‘CODE OF CIVIL PROCEDURE’

Under the guidance of : DR. B.R.N.SHARMA


(Faculty of Code Of Civil Procedure)

Submitted by : Rajeev Ranjan


B.A.L.LB(HONS.), Roll No.-1360
5th semester, 3rd Year

CHANAKYA NATIONAL LAW UNIVERSITY


PATNA

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DECLARATION

The researcher hereby declares that this research paper is prepared by the researcher with the help
of only those sources which are mentioned in the bibliography part of this paper, foot notes on the
last of each page. This research paper is not a copy of any one’s research paper as per the
knowledge of the researcher.
This research paper is firstly presented to DR.B.R.N.Sharma, the faculty of Code Of Civil
Procedure in The Chanakya National Law University, Patna. Before this, this paper has never been
submitted to any other teacher/professor or any other school/college/university.

RAJEEV RANJAN
31/10/2017

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ACKNOWLEDGEMENT
I would like to thank my faculty B.R.N. Sir whose guidance helped me a lot with structuring my
project.
I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.
I would also like to extend my gratitude to my parents and all those unseen hands who helped me
out at every stage of my project.
THANK YOU,
RAJEEV RANJAN

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PARTICULARS PAGE

1. ACKNOWLEDGEMENT 3

2. RESEARCH METHODOLOGY 5

3. CHAPTER 1 6-10

4. CHAPTER 2 11- 15

5. CHAPTER 3 16-23

6. CHAPTER 4 24

7. BIBLIOGRAPHY 25

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RESEARCH METHODOLOGY
Aims and Objectives:
The aim of this research paper is to present a detailed study on the Suits concerning family matters.
Scope and Limitations:
The researcher has used the doctrinal method and has relied on the secondary sources for the
content of the research paper.
Owing to the large number of topics that could be included in the project, the scope of this research
paper is exceedingly vast. However in the interest of brevity, this paper has been limited to the
topics which are socially relevant .
.Research Questions:
The two research questions are as follows:
1. What is a suit concerning family matters.
2. How are such suits filed and disposed of ?
Chapterisation:
The project has been divided into four chapters :
1. Introduction.
2. Suits relating to family matters- Analysis and Relevant Provisions.
3. Important Cases and comparative study.
4. Conclusion.
Sources of Data:
The researcher has relied on the following secondary sources of data:
• Books
• Websites
• Articles

Method of Writing
The method of writing followed in this project is both analytical and descriptive.
Mode of Citation
The researcher has followed a uniform mode of citation in this project.
Hypothesis
In the context of this project, researcher had assumed that - The existing laws related to family
matters are well enough to tackle the issues and needs no such change.

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CHAPTER-1

Introduction
Suits Relating To Matters Concerning The Family
The kinds of suits relating to family are: -

a. A matrimonial suit claiming any matrimonial relief including the declaration of validity of
a marriage or matrimonial status of any person.
b. A suit claiming a declaration of legitimacy of any person.
c. A suit relating to custody / guardianship of a minor / any person of family under a disability.
d. A suit for maintenance.
e. A suit for declaring validity or effect of an adoption.
f. A suit for relating to wills, intestate and succession.
g. A suit relating to any matter concerning family in respect of which the parties are subject
to their personal law.

"Family" for such suits shall include the following :

• A man and his wife living together plus any child or children born of them or either of
them.
• A man not having a wife or not living with his wife, maintaining any child or children, born
of him or otherwise.
• A woman and have husband/ not living with her husband, maintain any child/ children
being born of her or otherwise.
• A man or woman living with his / her brother, ancestor or any close relative, related to
him/her by blood.
• Any combination of one or more of the above.

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Role of CPC,1908

The substantive provision (Section 89) has been procedurally supported by Order X, Rules 1A,
1B and 1C. Rule 1A provides an option to the parties to a suit for settlement of the dispute
outside court. If a party exercises this option, a date shall be fixed for appearance before the
forum or authority which has been opted by the parties for settlement. Rule 1-B stipulates that,
the parties have to appear before such forum or authority and Rule 1- C gives power to the
Presiding Officer of the forum or authority to revert the same matter to the Court in the event the
said Presiding Officer feels that the said forum or authority should not proceed with the matter in
the interests of justice.

It may be pertinent to point out in this regard, that all the proceedings in India governed by the
Hindu Marriage Act and the Special Marriage Act are regulated by the provisions contained in the
CPC. The Indian Legislature enacted Order XXXIIA in the Code of Civil Procedure by an
amendment in 1976 to provide for mandatory settlement procedures in all matrimonial
proceedings. Thus, it may be specifically concluded that there has been a conscious effort on the
part of the Indian legislature to ensure that family disputes can be settled by means of alternative
dispute resolution mechanisms.

The relevant Order is reproduced here below:

“Order XXXIIA: Suits Relating to Matters Concerning the Family:

1. Application of the Order

(1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning
the family.

(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the
provisions of this Order shall apply to the following suits or proceedings concerning the family,
namely:-

(a) a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to
the validity of a marriage or as to the matrimonial status of any person;

(b) a suit or proceeding for a declaration as to legitimacy of any person;

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(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor
or other member of the family, under a disability;

(d) a suit or proceeding for maintenance;

(e) a suit or proceeding as to the validity or effect of an adoption;

(f) a suit or proceeding, instituted by a member of the family relating to wills, intestacy and
succession;

(g) a suit or proceeding relating to any other matter concerning the family in respect of which the
parties are subject to their personal law.”

Sub-clause (3) makes it a mandatory duty of the court to make efforts for a settlement to be reached
between the parties. The relevant clause is reproduced here below:

“3. Duty of Court to make efforts for settlement-

(1) In every suit or proceeding to which this Order applies, an endeavor shall be made by the Court
in the first instance, where it is possible to do so consistent with the nature and circumstances of
the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable
possibility of a settlement between the parties, the Court may adjourn the proceeding for such
period as it thinks fit to enable attempts to be made to effect such a settlement.

Sec.89 of CPC,1908

Settlement of disputes outside the Court.- (1) Where it appears to the court that there exist
elements of a settlement which may be acceptable to the parties, the court shall formulate the terms
of settlement and give them to the parties for their observations and after receiving the observations
of the parties, the court may reformulate the terms of a possible settlement and refer the same for—

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

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(2) Where a dispute has been referred—

(a) for arbitration of conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall
apply as if the proceedings for arbitration or conciliation were referred for settlement under the
provisions of that Act;

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions
of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions
of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such
institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services
Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions
of that Act;

(d) for mediation, the court shall effect a compromise between the parties and shall follow such
procedure as may be prescribed.

A conjoint reading of the above sub-clauses clearly establish the statutory mandate laid down by
the Civil Procedure Code in the first instance to assist the parties in arriving at a settlement in a
matrimonial cause in any matrimonial proceeding before a court of competent jurisdiction. Thus,
for any suit or proceedings praying for matrimonial, ancillary or other relief in matters concerning
the family, a separate and independent statutory obligation exists providing for mandatory
settlement proceedings.

Other Relevant Acts

Hindu Personal Laws and Special Marriage Act

The Vedas and other Holy Scriptures makes reconciliation an essential tool to be followed by
Hindus before a marriage irretrievably breaks down. When the Holy Scriptures was codified to
unite the diverse laws of various sects of Hinduism, reconciliation is mandatory under The Hindu
Marriage Act, 1955 (HMA) and The Special Marriage Act, 1954 (SMA). Section 23(2) of the
HMA lays down that before proceeding to grant any relief under the HMA, it shall be a duty of
the Court in the first instance, to make every endeavour to bring about reconciliation between
parties in all cases. This is in relation to any relief sought on most of the fault grounds for divorce

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specified in Section 13 of HMA. The provisions contained in Sections 34(2) and 34(3) of the SMA
are pari materia to the provisions contained in Sections 23(2) and 23(3) of the HMA.

Muslim Personal Laws

Contrary to popular belief about the unilateral methodology of the Muslim form of divorce, the
Quran lays down an specific four-step reconciliation procedure before the talaq is granted. As a
first step, when there is a marital discord, the Quran laws down that the husband should try and
talk out the differences (faizuhunna) with his wife. In the event the misunderstanding between the
parties persists, as a second step, the Quran recommends that the parties should be asked to stay
separately and keep any form of physical intimacy in abeyance (wahjuruhunna). Such measure has
been recommended so that temporary separation may help the parties to reunite.

In the event this procedure too fails, as a third step, the husband is instructed to discuss with his
wife again (wazribuhunna) about the seriousness of the situation in order to try and bring about
reconciliation. In pursuance of wazribuhunna, the husband shall try and explain to the wife that if
the differences are not resolved by the parties shortly, the dispute shall be taken beyond the
confines of the four walls of the home, which may be harmful to the interests of both the parties.
In the event the dispute still remains unresolved, as a fourth step, the Quran requires the dispute to
be placed before two arbitrators, one from the family of each spouse, for resolution.

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CHAPTER-2

Analysis and Relevant Provisions

Matrimonial Disputes:

Justice of the Delhi High Court has appealed to the state agencies and social workers to come
together and focus their attention on resolution of matrimonial disputes through reconciliation.
State agencies and voluntary organizations should discourage parties to the matrimonial discords
from resorting to legal action in a huff without exhausting the avenues of reconciliation 1. Numbers
of companies are providing services regarding matrimonial disputes by experienced and trained
legal experts, who can solve the problems.

Divorce is very painful arena for someone’s life as it disturbs the whole life of two partners, it is
even painful if one is having child. In addition, the children’s interests are often ignored when the
parents are engaged in bitter courtroom battles. One should know about the causes of matrimonial
disputes so that they can be avoided. So, in this paper, we have discussed numeral causes of
matrimonial disputes.

Introduction :

Due to unfulfilled needs and desires, matrimonial disputes occurs which can ruin the one’s life and
can’t be restored again very easily. It leaves very deep impact on life of people having matrimonial
disputes which leads to divorce. So, this paper will describe number of causes of matrimonial
disputes. Black’s Law Dictionary defines divorce as “the legal separation of man and wife.” The
New Brittanica - Webster Dictionary defines divorce as “a complete legal dissolution of a
marriage. “Interestingly, however, marriage has a much broader definition. Brittanica - Webster
defines marriage as “the institution whereby a man and a woman are joined in a special social and
legal relationship for the purpose of making a home and raising a family”. Thus, it is interesting
to see that marriage is viewed as a legal and social union of two people; however, divorce is merely
viewed as the legal termination of said marriage. These definitions in and of themselves highlight
one of the basic problems that occur when a couple chooses to divorce. Namely, although the legal

1
The Hindu, ePaper, August 2008, [Online] Available http://www.hindu.com/2008/08/10/stories/2008081059270400.
html.visited on 29/10/2017

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system is equipped to deal with the legal problems that the couple faces when divorcing, it does
not address nor is it equipped to deal with the social and emotional issues that confront the couple.
Once the emotional or social issues are dealt with, it makes the resolution of the legal issues that
much easier. Taking it a step further, what most people really are arguing about is not legal or
financial issues, but rather arguments fueled by their desire to get some form of revenge for a
perceived wrong by the other spouse. Once each of the participants is helped and supported to
resolve the emotional and social issues, however, they are in a much better position to deal
effectively with the legal and financial issues.2

Beginning in the 1960s, advocates of divorce reform called for the legal recognition of no-fault
divorce. Under this concept, a divorce may be granted on grounds such as incompatibility,
irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The court
examines the condition of the marriage rather than the question of whether either party is at fault.
This type of proceeding eliminates the need for one party to accuse the other of a traditional ground
for divorce, such as Adultery, cruelty, alcoholism, or drug addiction. By 1987, all fifty states had
adopted no-fault divorce, exclusively or as an option to traditional fault-grounded divorce. No-
fault divorce has become a quick and inexpensive means of ending a marriage, especially when a
couple has no children and moderate property assets. In fact, the ability to end a marriage using
no-fault procedures has led to criticism that divorce has become too easy to obtain, allowing
couples to abandon a marriage at the first sign of marital discord.

Mediation

Mediation, is a form of Alternative Dispute Resolution (ADR), aims to assist two (or more)
disputants in reaching an agreement. Whether an agreement results or not, and whatever the
content of that agreement, if any, the parties themselves determine — rather than accepting
something imposed by a third party. Mediators use appropriate techniques and/or skills to open
and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with

2
Legal Service India, “The Ways of Mediation in Matrimonial Disputes”, [Online] Available:
http://legalservicesindia. com/article/article/the-ways-of-mediation-in-matrimonialdisputes-1383-1.html, visited on
29/10/2017.

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concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial
3
.

Divorce by Mutual Consent

Divorce by Mutual Consent is as the name suggests is when both parties i.e. husband and wife
come to a mutual understanding that the marriage be dissolved amicably.

How does it work?

• A joint petition signed by both parties is filed in court.

• In the first motion statement of both parties are recorded and then signed on paper before the
Hon’ble Court.

• The 6 month period is given for reconciliation, (the hon’ble court gives a chance to the couple
to change their mind)

• 6 months after the first motion or at the end of reconcile period if both parties still don’t agree to
come together. Then the parties may appear for the second motion for the final hearing.

Finally Divorce decree will be granted as the Hon’ble Court may deem fit 4. While the number of
divorce petitions filed by mutual consent has risen by 50 per cent in the last 10 years in the Pune
District Family Court, the percentage of reconciliation after mutual consent divorces continues to
be little. The figures provided by the Family Court show that the number of divorce petitions by
mutual consent filed in 2002 was 320. In 2011, this rose to 713. “Most of the mutual consent
petitions are filed by couples who have been married for less than three years,” said a family court
official. “It is alarming trend chances of reconciliation for such couples are little,” said Rajendra
Tatar, counselor of family court 5.

3
Legal Service India, “The Ways of Mediation in Matrimonial Disputes”, [Online] Available:
http://legalservicesindia. com/article/article/the-ways-of-mediation-in-matrimonialdisputes-1383-1.html, visited on
29/10/2017
4
Legal Service India, “Mutual Consent Divorce”, [Online] Available: http://www.legalserviceindia.com/helpline/
mutual_consent_divorce.html, visited on 29/10/2017
5
Indian Express, “More couples seek divorce by mutual consent, few want to reconcile”, [Online] Available: http://
www.indianexpress.com/news/more-couples-seek-divorceby-mutual-consent-few-want-to-reconcile/933349, visited
on 29/10/2017.

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A suit relating to succession

Succession

The manner of distribution of a person’s property after his death is determined by the fact whether
the deceased has made a Will or not. All civilised societies have recognised the right of an
individual to acquire, hold and dispose of property. This right of disposal includes the right to
dispose properties in a manner so as to take effect after the death of a person. Such a right can be
exercised by making an instrument known as Will, during the lifetime of a person. Person making
a Will in such a case is known as 'testator’ and distribution taking place after death of the testator
as per his Will is known as 'Testamentary' succession.

In case of a person who dies without making a Will, the property passes by inheritance as per the
personal law of the deceased. Devolution of property of such a person after his death is known as
'Intestate’ succession. In India, laws governing such intestate succession are the Indian Succession
Act, 1925, (I.S. Act) Hindu Succession Act, 1956 and Mohammedan Law. These laws by and
large provide for the manner of devolution of the properties of the deceased who has died without
making a Will, amongst his legal heirs. They provide amongst other things, rules as to who are the
persons entitled to receive the estate of the deceased and in what proportion. They also lay down
the manner in which the estate of the deceased is to be administered.

Relevance of domicile/location of a property

For purposes of determining applicability of laws in case of a succession, it is necessary to


determine the domicile of the deceased. In case of an immovable property located in India, the
laws of succession prevailing in India would determine the successors of such property. In case of
movable properties, the laws governing the country of domicile of the deceased would determine
the successors of the property. Domicile is relevant for movable properties while location is
relevant for immovable property.

Intestate succession as per personal laws

Hindus/Jains/Buddhists/Sikhs
Hindu Succession Act, 1956, applies to persons following the above faiths. A distinction is made
between a male and a female for the purposes of deciding the manner of distribution of their estates.

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Heirs are defined as class I, class II, Agnates and Cognates for a male Hindu while for female they
are provided in S. 15 and S. 16 of the Act. S. 21 of the Special Marriage Act, 1954 provides that
any person whose marriage is solemnised under the Special Marriage Act, 1954, succession of
property of such person shall be regulated by the provisions of the IS Act. However, the Marriage
Laws (Amendment) Act, 1976, inserted S. 21A in the Special Marriage Act which provides that
where the marriage is solemnised under the Special Marriage Act of any person who professes the
Hindu, Buddhist, Sikh or Jain religion, with a person who professes the Hindu, Buddhist, Sikh or
Jain religion, S. 21 of the Special Marriage Act shall not apply. In conclusion, even in case of the
marriage of a Hindu, Buddhist, Sikh or Jain solemnised with another Hindu, Buddhist, Sikh or Jain
under the Special Marriage Act, such person's succession will be governed by the Hindu
Succession Act, and not by the IS Act.

Male : His property devolves upon his widow, children (including heirs of a predeceased child
through such child) and mother in equal shares – each taking one share. In case where none of
them are present, the property will pass to his father if he is alive and failing which to his brother,
sister and other relatives specified in class II.

Female : Her property devolves upon her husband and children (including children of a
predeceased child through such child) in equal shares — each taking one share. In case where none
of them are present, property will pass to heirs of her husband and failing them to her mother and
father, so however, a distinction is made in such a case between the properties received from the
parents of the female and those which are received from the husband and the father-in-law. The
latter property will pass to heirs of her husband while the former will pass upon the heirs of her
father.

Mohammedans – Property of a Mohammedan devolves on his or her successors as per his or her
personal law. However, estate of persons married under the Special Marriages Act, 1954, shall
devolve as per the provisions of the Indian Succession Act.

Others – Properties of persons following any faith other than the Hindus, Jains, Sikhs, Buddhists
and Mohammedans and Parsis shall devolve as per the provisions of the Indian Succession Act.

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CHAPTER-3

CASE STUDY AND VARIOUS OTHER MEASURES

In Sarda Sharma v. Santosh Sharma, 6. an ex parte divorce decree was granted to the husband
by the trial court without taking note of the fact that no proper summons were sent to the wife, and
further that no steps were taken to secure the presence of the wife to try conciliation. The decree
was set aside in appeal.

An ex parte decree of restitution without first trying reconciliation was remanded to trial court to
attempt reconciliation. 7 Promila Bhagat v. Ajit Rai Singh, 8 .was a case under s. 34(2)of the
Special Marriage Act where the trial court dissolved a marriage under s. 28 of the Act,viz., by
mutual consent, without reconciliatory efforts. On appeal by the wife the order was set aside and
the case remanded for fresh disposal. It was held that because of the non-compliance of the
mandatory provisions of sub-clause (2) of s. 34, the decree of the trial court suffered legal infirmity
and so was not maintainable.

Attempts for reconciliation can be made even at the appellate level9. While divorce on the ground
of conversion is explicitly excluded for purposes of mandatory reconciliatory efforts vide the
proviso to s. 23(2), yet according to the Kerala High Court in Bini v. Sundaran K.V.10.after the
coming into force of the Family Courts Act, 1984 even in excepted grounds, the Family Court is
bound to make an endeavour for reconciliation.11

A marriage which is void, however, cannot be rendered valid by reconciliation and therefore the
court is not obliged to try it in such cases.12 Failure to appear for reconciliation proceedings under
this section (s. 23 of the Hindu Marriage Act, 1955) was held to be no ground for striking down

6
AIR 2007 (NOC) 1407 (Chhat)
7
Subhadra Bai v. Harishankar Kachhi, (1989) 1 HLR 613 (MP)
8
AIR 1989 Pat 163.
9
Sushma Kumari v. Om Prakash, AIR 1993 (Pat)
10
AIR 2008 Ker 84.
11
S.K. Salam v. Sant Singh, AIR 1990 Cal 315.
12
Tanima Mishra v. Pradeep Patnaik, AIR 1992 Ori 178.

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the party’s defence in a divorce petition.13 Nor can a court pass a decree on the recommendations
of the conciliators or arbitrators.14

That courts take the issue of reconciliatory efforts with all seriousness is indicated by the recent
judgment of the Apex Court in Jagraj Singh v. Birpal Kaur15.A wife filed a divorce petition on
grounds of desertion and cruelty of the husband which was dismissed by the family court; the wife
thereupon filed an appeal against it. The husband, who was in Italy, appeared through special
power of attorney holder. He was directed to appear in person but made no appearance even on
subsequently adjourned dates whereupon the judge issued non-bailable warrants to be executed
through the Ministry of External Affairs. This was challenged before the Apex Court. It was argued
that personal appearance was not mandatory and that the court had no jurisdiction to issue non-
bailable warrants under the Act. The court examined the ambit of the court’s duty under s. 23(2)
of the Act and observed.16

The court granted interim stay against the warrants but since the husband’s counsel reiterated that
no such order could be passed the Supreme Court dismissed his appeal with following
observations.17 Conceding to the husband’s, plea, according to the court, would "virtually make
the benevolent provision nugatory, ineffective and unworkable, defeating the laudable object of
reconciliation in matrimonial disputes".

Mediation

Mediation is yet another method of dispute settlement in matrimonial causes. The parties attempt
to resolve their differences with the assistance of a neutral third party, and the mediator tries to
help the parties to reconcile their differences in an equitable and mutually acceptable manner. At
times, it is apprehended that through promises, pressures or threats, a mediator may create
conditions under which an unwilling party allows himself to be forced into an agreement and
unequal parties may ‘unwittingly trade off rights’. In the words of one scholar:18

13
Lav Kumar v. Sunita Puri, AIR 1997 P&H 189.
14
Raj Kumar Bansal v. Anjana Kumari, AIR 1995 P&H 19.
15
AIR 2007 SC 2083 : (2007) 2 SCC 564 (P&H).
16
Ibid, at 2086.
17
Ibid, at 2089.
18
Marylyn M. Mays, ‘Responsibility of the Law in Relation to Family Stability’, International & Comparative Law
Quarterly, Vol. 25, 1976, pp. 409, 421.

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In fact, the success of this process depends on the cooperation and willingness of the parties to
resolve their conflict. The mediator is only a facilitator and assists them in the mutual resolution
of their differences.

Though there is no institutionalised mediation forum for matrimonial dispute resolution in India,
the role played by various non-governmental organisations, agencies as also authorities set up
under the Legal Services Authorities Act, 1987, is in fact, mediatory. They mediate and try to bring
the parties around to come to an amicable settlement. The statutory duty cast on the matrimonial
judge to consider the possibilities of reconciliation between the parties is also mediatory in nature.
The judge holds a meeting with the parties in his chamber and acts as a mediator. Truly speaking,
a judge in an adversarial litigation is not the right person to mediate. In view of the authority he
wields in the entire process, there could be subtle pressures on the parties and they might feel
coerced. As aptly remarked by Eckhoff,19 ‘mediating one may weaken the normative basis for a
better judgment and perhaps also undermine confidence in one’s impartiality as a judge’.

Arbitration

Disputes resolution by arbitration is becoming very popular these days and it is one of the most
important methods for settlement of commercial disputes. In family proceedings, however, this is
not very common. Issues which affect the status of marriage and children are not favourably
viewed as arbitrable issues on the ground of public policy. Parties might be reluctant to entrust
their personal and critical decisions to a private adjudicator. They would prefer to resolve their
conflicts and issues pertaining to children by agreement or through the judicial process, where
judges can be expected to apply accepted standards and where a right of appeal exists.

Special Procedure

Litigation concerning or involving family matters requires a special approach in view of the serious
social, financial and emotional repercussions. For this sensitive area of personal relationship, the
ordinary court procedure is ill-suited. The adversary procedure is too technical, expensive and time

19
T. Eckhoff, ‘ The Mediator and the Judge’, in Aubert (edn.), The Society of Law, 1969, p. 170.

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consuming. The lawyers are engaged in a practical tug-of-war making the battle full of acrimony
and insults. As remarked by Seidelson:20

In fact, court procedure leads to such bitterness that ancillary and other post-divorce issues also
cannot be amicably settled. Hence, there is need for a procedure which is expeditious, simple,
informal and non-technical. Such need has been emphasised from time-to-time at various forums
and levels. The Law Commission, in its report as early as 1973,21. strongly recommended the need
for special handling of matters pertaining to marriage and divorce. It observed:22

The report further suggested that:23

(a) as far as possible, an integrated broad-based service to families in trouble should become a part
of the court system;

(b) the existing court structure should be so organised that one single court should deal with the
problems of preserving the families; and

(c) the conventional procedure dominated by the adversary system may not be appropriate for
disputes concerning the family.

Consequent to the recommendations of the Law Commission, O. 32A was incorporated in the
Code of Civil Procedure in 1976. This order ‘seeks to highlight the need for adopting a different
approach where matters concerning the family are at issue, including the need for efforts to bring
about an amicable settlement’.

The order applies to suits/proceedings for matrimonial relief, declaration as to legitimacy of any
person, guardianship, custody, maintenance, adoption, and inheritance in the family. There are
provisions for proceedings to be held in camera and also for assistance of welfare experts. For the
purposes of this Order, ‘family’, inter alia, means a man and his wife living together, any child or
children of theirs or of such man or such wife; and any children maintained by them. The clause
gives an extended meaning to the word ‘family’ by also including a man or woman and his or her
brother, sister, ancestor or lineal descendant living with him or her. Likewise Sec.89 provides for

20
David E. Seidelson, ‘Systematic Marriage Investigation and Counselling in Divorce Cases: Some Reflections on its
Constitutional Propriety and General Desirability’, George Washington Law Review, Vol. 36, 1967-68, pp. 60-61.
21
Fifty-Fourth Report on the Code of Civil Procedure, 1973.
22
Ibid.
23
Ibid.

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special proceedings for settlement of disputes outside the court. This provision was inserted in the
Code videAct 46 of 1999 which came into force with effect from 1 July, 2002, pursuant to
recommendations made by the Law Commission and the Malimath Committee. Under this section,
where a court feels that the dispute could be amicably settled, it may refer the same for arbitration,
conciliation, mediation or to the lok adalat. The provisions of the Arbitration and Conciliation Act,
1996 and the Legal Services Authorities Act, 1987, would apply in respect of such disputes.

Procedural delays are inherent in the ordinary court system. The purpose of family courts set up
under the Family Courts Act, 1984, is to provide for speedy relief to the parties. In the matrimonial
litigation, the whole purpose of relief is negated if it is delayed. Physically and emotionally, the
parties are wrecked with little or no chances of remarriage. The emphasis in the family courts is
on an informal and friendly procedure. The parties may seekin camerahearing. This would save
the embarrassment which they face in open mud-slinging in ordinary courts. Though the procedure
generally prescribed is the same as provided in the Code of Civil Procedure and Code of Criminal
Procedure, the family court is at liberty to lay down its own procedure, which would expedite or
facilitate settlement of disputes before it. Legal representation is not allowed as a matter of right
because it was felt that the presence of lawyers might not be conducive to the informal set-up of a
family court. There is, however, no complete bar either. If the court feels that it is in the interest
of justice, it may seek the assistance of a legal expert asamicus curiae. The lok adalats set
up/organised under the Legal Services Authorities Act, 1987, have also played a significant role
in expeditious disposal of cases.

Forums

The forums for settlement of matrimonial disputes can be conventional or modern, judicial or non-
judicial, governmental or non-governmental. Amongst the earlier dispute resolution agencies, and
which are respected and recognised in many villages and communities even today, are the
panchayats and village elders. When matters cannot be resolved within the family by the parents
and other family members, the same are referred to the elders of the community or panchayats,
which are local bodies consisting of persons nominated or elected by the people. These persons
are held in high esteem and their advice or order carries a lot of weight and respect. Besides, the
Hindu Marriage Act, 1955 protects customs, and a marriage dissolved under the customary law by

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the panchayat, village elders or any other authority, is legally recognised.24 Amongst communities
which have their recognised customary laws, parties primarily seek relief through these local
bodies only. Judicial adjudication, however, is the most common method for matrimonial conflict
resolution. In this, we have the ordinary civil courts, special family courts and lok adalats. The
Parsi Marriage and Divorce Act, 1936 provides for the setting up of special courts and the
appointment of delegates to hear cases under the Act.25

In order to provide swift and meaningful relief, family courts as an alternative to ordinary courts
for family/matrimonial litigation are fast coming up everywhere. The basic objectives behind the
specialised forum are:

(i) the need for exclusive forum with expertise in these matters;

(ii) the need for a mechanism for conciliation before adjudication;

(iii) simplicity, informality and flexibility of a procedure that is readily adjustable to the
circumstances of the case, without the technicalities of laws;

(iv) inexpensive and expeditious relief.

Australia, Japan, Canada and several other countries have a well-developed system of family
courts with conciliation proceedings with the help of trained counsellors and other welfare officers
preceding court adjudication.

In India, the Family Courts Act was passed in 1984 to ‘provide for the establishment of family
courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to
marriage and family affairs and matters connected therewith’. Matters which fall within the
jurisdiction of the family courts are suits between parties to a marriage for decree of nullity,
restitution of conjugal rights, judicial separation or dissolution of marriage, suits relating to
matrimonial property, declaration of legitimacy, maintenance, guardianship, custody or access to
any minor. The emphasis in the entire process in this court is on amicable settlement.

24
Hindu Marriage Act, 1955, s. 29.
25
Parsi Marriage and Divorce Act, 1936, ss. 18-27.

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Lok Adalats

The lok adalats, literally meaning the people’s courts, is another forum for speedy disposal of
cases.26 During the past few years, innumerable lok adalats have been organised in various parts
of the country for instant disposal of a large variety and number of cases. Infact lok adalats are
now periodically held to resolve all kinds of disputes. They help not only in reducing the burden
of the courts and arrears but also give an opportunity to the parties to amicably resolve their
problems without much expenditure, harassment and waste of time. If the parties reconcile and
there is rapprochement nothing like it; however, even if the difference are irreconciliable and they
do not agree to live together the lok adalats help in expediting the process and at the same time
assist in settlement of ancillary issues. The Lok Adalats however, have no jurisdiction to declare a
marriage null and void on the basis of joint statement of the parties.27

Family Counselling Centres

Another alternative of matrimonial conflict resolution is the marriage and family counselling
centres. Most of the states have set up such centres under the state legal services. These centres
provide legal aid and advice to parties in, inter alia, family disputes. In Delhi, prior to the present
Delhi Legal Services Authority, there was the Delhi Legal Aid and Advice Board which was
constituted in 1981 to provide free legal aid and advice to various sections of people, particularly
women and people below a certain income group. The family counselling centre was started in
1986 and in 1987 the Board was declared a department of the Delhi Administration. Pursuant to
the provisions of the Legal Services Authorities Act, 1987, the Delhi Legal Services Authority has
been constituted with various marriage and family counselling centres. Efforts are made by the
counsellors in these centres, to amicably resolve the conflicts between the parties. The emphasis
is on persuading couples to reunite and live a happy married life; however, when that is not
possible, parties are advised and motivated to amicably settle other allied issues like maintenance,
child custody, etc. and part gracefully by mutual consent.

26
See Chs. V and VIA of the Legal Services Authorities Act, 1987.
27
Siji Antony v. Saji John, (2010) II DMC 372 (Ker).

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Special Police Cells

Special police cells have also been established in the country to look into cases of harassment and
violence in the family. Such cells have been set up in various states. In Delhi, the special police
cell was set up in 1983, and was commonly referred to as the anti-dowry cell. The working of this
cell over a period of two years revealed that every problem in the family was attributed to dowry,
which was not true. Therefore, in 1985, the name of the cell was changed to Crimes Against
Women Cell. Though it entertains all cases of harassments to women, most of the cases that come
before it are those of matrimonial discord. The wife moves the cell by making a complaint of
harassment, cruelty, ill-treatment etc., against the husband and/or his family. Notice is given to the
opposite party to appear. After hearing both parties, the investigating officer and other staff discuss
the problem and try for a solution. Assistance of friends and relatives is also sought either to affect
a reconciliation or in the alternative, to resolve other issues like maintenance, custody, return of
properties etc. These cells have been successful to some extent in restoring stridhan to many
women, and also by providing some security to women against harassment and torture. Hasty and
irresponsible resort to the police cells however could aggravate discord.

Authorities under Domestic Violence Act

The Protection of Women from Domestic Violence Act, 2005, which has come into effect on 26
October, 2006, provides for appointment/setting up of various authorities for protection of women
who are victims of violence in,inter alia, marriage relationship. Such authorities are magistrates,
police officers, protection officers and non-governmental organisations registered as service
providers. Though these agencies are primarily meant to ensure protection to women of domestic
violence, the protection officers or service providers can also obtain an order for interim custody,
maintenance or residence for the aggrieved wife.

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CHAPTER-4

CONCLUSION & SUGGESTION

Growing dissatisfaction with the adversarial process for matrimonial dispute settlement through
ordinary courts with its high cost, incessant delay and escalation of conflict and bitterness impels
one to search for effective, expeditious and inexpensive procedures and forums for such cases.
Though one is quite clear that strict, technical and time-consuming procedures are definitely not
in the interest of parties, yet it is hard to come to definite conclusions as to the most effective
process and forum for these disputes. One thing, however, is clear, and that is that marriage
counselling plays an extremely significant role.

When a marriage is in trouble and parties are conciliation/reconciliation efforts before the case is
filed in the court. Going from a court or a lawyer to a counsellor is like putting the cart before the
horse. Ideally, marriage counselling should precede the marriage to educate couples on the various
types of problems that could arise in a relationship, and equip them to cope with different stresses
and situations in a marriage. Recourse to judicial process should be the last resort.

The family structure of India is extremely conservative and prefers not to take the disputes to
unknown experts and/or mediators. It is recommended that in this context, greater awareness is
generated about the usefulness of alternative dispute resolution mechanisms in the Indian society.
The advantages of the procedures may be explained in detail even in the remotest villages so that
a majority of the existing disputes are settled at the grassroot levels. It is further recommended that
the powers and scope of Family Courts be increased so that it reaches to the far corners of the
society at large. More family courts should be opened across the length and breadth of the country
in order to facilitate easier resolution in family disputes.

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BIBLIOGRAPHY
BOOKS

1. Takwani C.K., Civil Procedure with Limitation Act,1963, Eighth Edition, Eastern Book
Company Publication.
2. Prasad B M, Mulla The Code of Civil Procedure by Sir Dinshah Fardunji, Mulla, 18th
edition, Lexis Nexis Publication.

WEBSITES

1. http://www.lexisnexis.com
2. http://www.advocatekhoj.com/library/lawareas/suits/concerning.php?Title=Suits&STitle
=Suits%20Relating%20to%20Matters%20Concerning%20the%20Family
3. https://www.lakshmisri.com/News
4. http://www.scconline.com/
5. www.legalblog.in/2011/09/alternate-dispute-resolution-under.html
6. http://manupatra.com/

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