Overview of Family Disputes

Familial disputes frequently arise from diverse emotional, financial, and interpersonal difficulties. These conflicts can arise in several forms, including divorce, child custody battles, inheritance problems, and issues pertaining to senior care. The intrinsic intimacy of familial relationships frequently exacerbates these issues, rendering resolution more difficult than conflicts among friends or acquaintances. Prevalent causes of familial conflicts encompass misunderstanding, financial strain, divergent parenting approaches, and substantial life alterations such as divorce or the demise of a family member. Family conflicts can be classified into several categories: domestic disputes, which may involve arguments that could escalate to violence; parenting disagreements, especially among divorced parents concerning discipline and child care; and financial disputes, which frequently emerge over inheritance or the financial obligations for elderly relatives. Disputes about inheritance distribution might result in extended court conflicts and strained sibling relationships. Moreover, disputes between in-laws are common, frequently arising from divergent expectations or customs at familial assemblies.[1]

Resolving these disagreements generally entails mediation, wherein an impartial third party assists in facilitating discussions to achieve a mutually agreeable resolution. This method is frequently favoured as it reduces antagonistic encounters and fosters cooperation among family members. Family courts are essential in resolving these issues, prioritising the welfare of children and promoting non-confrontational solutions. Ultimately, although conflict is an inherent aspect of family relations, proficient communication and mediation can facilitate the constructive management and resolution of these issues.

Mechanisms for Settlement

Conciliation and Counselling in Family Court

The institution of marriage and the family is under threat from evolving socio-economic pressures in society. The proliferation of urbanisation led to the disintegration of the joint family system, resulting in the emergence of a unitary system. The family dynamic altered, and new tensions emerged within familial relationships. In family disputes, counselling plays a significant role in reconciling the parties or facilitating acceptance of court rulings, whether interim or final, so providing justice to those involved. Social professionals, equipped with their skills, can significantly contribute to the counselling process in family courts. Conciliation refers to the process of achieving a rapprochement or resolution between parties. It is a procedure wherein a third person facilitates the resolution of disagreements between the involved parties through mutual agreement.[2] It is a settlement reached by compromise with the aid of a conciliator. This activity is regarded as advanced and necessitates superior expertise and high-level abilities, including the skill to effectively manage the situation and persuade the parties towards a resolution.

The counsellor requires persuasive skills and compassionate comprehension in this process. It is an alternate conflict resolution approach aimed at safeguarding the institution of marriage. According to the Family Courts Act, counsellors are mandated to conduct the conciliation procedure. The counsellors, adhering to the principles of objectivity, fairness, and justice, shall aid the parties in an independent and unbiased manner to achieve an amicable settlement, taking into account the rights and obligations of the parties. The counsellors are expected to propose resolutions for disagreements, grounded in the preferences expressed by the parties involved. They provide several options for dispute resolution. The conciliator must operate independently and impartially while fostering an agreeable resolution between the parties, ensuring impartiality, fairness, and justice, and giving appropriate respect to the rights and obligations of both parties.[3] Conciliation is the most effective method for resolving familial problems.

Litigation does not invariably yield a favourable outcome. It is costly in terms of both time and finances.[4] The detrimental nature does not alter the mindset of the parties, resulting in animosity. Conciliation and mediation are not only economical and time-efficient, but they also maintain the relationship between the parties by fostering communication and collaboration.[5] The preservation of peace and harmony is the foremost priority in addressing familial conflicts. The Indian family is robust, stable, cohesive, resilient, and enduring. Conciliation can aid in maintaining the essence of the Indian family while reforming and enhancing the formal dispute resolution process.[6] Conciliation and counselling are distinctive characteristics of the Family Courts Act of 1984. The Family Court Act mandates mediation primarily to ‘preserve the institution of marriage’ and ‘promote the welfare of children.’ The Act’s declaration of goals and reasons states: “Family courts shall be established for the resolution of family disputes, emphasising conciliation and the attainment of socially desirable outcomes.” The Act stipulates that “every effort shall be made to ensure that individuals dedicated to enhancing and safeguarding the institution of marriage and advancing the welfare of children are chosen.”[7]

Conciliation is a more individualised approach than adjudication. It is not impersonal or detached like the formal legal process.[8] It is essential that both parties involved in the disagreement feel at ease with the conciliation officer. Nevertheless, the official conciliation process does not allow for such considerations. The family court judge plays a crucial role; although he holds the same official position as other civil judges, his duty is to safeguard and uphold the interests of marriage and enhance the welfare of the children involved in disputes through conciliation and counselling, in collaboration with medical and social welfare agencies and other specialists.[9] Judges fulfil the combined roles of conciliator and adjudicator as stipulated in the Family Courts Act, when an individual in a position of authority, adhering to the Act’s requirements, is appointed to this capacity.[10]

The preamble to the Act explicitly mentions the advancement of conciliation. Section 9 (1) further substantiates this, stating that “in every suit or proceeding, the family court shall, in the first instance and where feasible in light of the case’s nature and circumstances, strive to assist and persuade the parties towards a settlement regarding the subject matter of the suit or proceeding. For this purpose, a family court may, subject to any rules established by the High Court, adopt such procedures as it considers appropriate.”[11] It seems there is a plausible chance of settlement between the parties for a duration deemed appropriate, which is essential for implementing the necessary procedures to achieve the settlement. These provisions unequivocally suggest conciliation.

Section 6 (1) stipulates that “the State Government shall, in consultation with the High Court, ascertain the number and categories of counsellors, officers, and other personnel necessary to assist a family court in fulfilling its functions and shall provide the family court with such counsellors, officers, and other personnel as deemed appropriate.” Consequently, the Act implicitly suggests the employment of counsellors. The Act does not stipulate the appointment of conciliators unless it is presumed that counselling encompasses conciliation and that the counsellors will undertake the conciliation duties. Similarly, it can be inferred that while counselling, as commonly defined, is conducted by counsellors, conciliation will be undertaken by the judges themselves.[12] The Act is unclear on this significant issue. It is ironic that the Act, while asserting one of its objectives is to promote conciliation in matrimonial and family disputes, does not even anticipate a role for conciliators,[13] even if it is presumed that the terms counsellors, officers, and other employees referenced in the Act encompass conciliators. The Act does not clearly differentiate between the functions of counsellors and conciliators.[14]

The Family Court Act does not establish institutionalised conciliations in either the public or private sector. In Japan, court-related conciliation is referred to as public sector conciliation. It comprises a conciliation committee consisting of a judge and two counsellors, one of whom is female. A private sector conciliation, conversely, is independent of the court system and is entirely voluntary, lacking any association with judicial proceedings. In the People’s Republic of China, conciliation units comprising three to five neighbours visit couples experiencing marital difficulties and endeavour to resolve their issues.

These units are characterised by voluntariness and possess no judicial authority. They signify the community’s care for the family’s welfare. Family courts in India do not consider institutionalised conciliation, whether affiliated with the court or outside of it. A critique of conciliation is that it provides insufficient support at a late stage, as the procedure commences after the marriage has nearly collapsed. To prevent this, a method should be established to encourage couples to promptly consult NGOs when issues arise in their relationship before it is too late.

The Family Court Act is founded on conciliation, prompt resolution, a non-adversarial attitude, a multidisciplinary method for addressing family conflicts, informal and straightforward procedural norms, and gender justice.[15] The entire framework of family courts is founded on the dual principles of counselling and conciliation. The counsellors must not only offer counselling but also facilitate reconciliation and amicable settlement wherever possible.[16] Section 23(2) of the Hindu Marriage Act, 1955 stipulates that prior to initiating any relief proceedings under this Act, it is the court’s obligation, whenever feasible and consistent with the case’s nature and circumstances, to make every effort to facilitate reconciliation between the parties.

[1] https://pollackpeacebuilding.com/blog/common-types-of-family-conflicts/

[2]Ashwine Kumar Bansal, Arbitration and ADR, Universal Law Publishing Co, Delhi, 2007, p. 19.

[3] Section 67, The Arbitration and Conciliation Act, 1996.

[4] The formal dispute resolution process is procedure oriented and therefore it consumes a lot of time and money.

[5]Vini Singh, “Compulsory Mediation for Family Disputes?”, The Indian Arbitrator, Vol 2, issue 9, Sept. 2010, http://arbitrationindia.com/htm/ publiocations.htm, Accessed on 22 December, 2024.

[6] Ibid

[7] Section 4(4)(a), The Family Court Act, 1984

[8] D. Nagasaila, “Family Courts: A Critique”, Economic and Political weekly, August 15, 1992, p. 1735.

[9] 3 K. Panduranga Rao, Commentary on the Family Courts Acts, 1984, reprint edition, Gogia Law Publications, Hyderabad, 2010, p. 56.

[10] D. Nagasaila, “Family Courts: A Critique”, Economic and Political weekly, Aug. 15, 1992, p. 1736.

[11] Section 9(1) The Family Courts Act, 1984

[12]Jamwal, N Have, Family courts lived up to expectations. Mains stream, Vol. XLVII, No. 12, March 7, 2009.

[13] B. Sivaramayya, “Family Courts: An Appraisal”, in Ratha Varma (Ed) Family Courts in

India: An Appraisal of strength and Limitation, Inter India publications, Delhi, 1997.p.33.

[14] Ibid

[15]Jamwal, N, “Have family courts lived up to expectations”, mainstream, vol XLVII No.12, March 7, 2009.

[16] Ibid