Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR): Transforming Indian Justice Delivery System for Achieving Gender Justice 9811610142, 9789811610141

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Neelam Tyagi

Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR) Transforming Indian Justice Delivery System for Achieving Gender Justice

Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR)

Neelam Tyagi

Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR) Transforming Indian Justice Delivery System for Achieving Gender Justice

Neelam Tyagi Campus Law Centre Faculty of Law University of Delhi New Delhi, India

ISBN 978-981-16-1014-1 ISBN 978-981-16-1015-8 (eBook) https://doi.org/10.1007/978-981-16-1015-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Preface

Change is the basis of society. Social changes affect everyone that includes family, society, and social institutions. They undergo regular revisions and evolve to keep pace with the changing social requirements. The family, centred on marriage, is the foundation of every society. Society and healthy families are interconnected, and dysfunctional families are often the root cause of numerous social problems. The state makes every effort to keep the marital ties intact for ensuring a healthy society at the macro-level and a healthy family at the micro-level. Breakdown of a marriage impacts society, parties to the marriage, and especially children. As an effect of social changes and education, there is a change in the psychology of people. Phenomena like industrialization, urbanization, globalization, and modernization have changed the outlook of people at large. With increased gender sensitization and awareness, women are responding to the oppression and atrocities committed against them by breaking the old shackles. As a result, there is a significant increase in the incidences of divorces and quantum of matrimonial disputes filed in the Courts. If we consider the Indian justice delivery system, it is grossly inadequate and suffers from huge pendencies and backlogs. The adversarial process of litigation followed by Indian Courts has failed to withstand the ‘docket explosion’. There is an influx of cases stressing the claimants of justice and the judicial machinery. Worldwide, this scenario has forced lawmakers to moot the idea of Alternative Dispute Resolution (hereinafter ADR). It is a novel concept that has significantly evolved to counter the failure of the legal machinery. The prime objective of the ADR process is to give pace to every justice delivery system. These ADR mechanisms are a consensual method of dispute resolution that is separate from the tedious, cumbersome procedural rules and process followed by the conventional Courts. These processes are voluntary and provide an opportunity for the disputing parties to amicably resolve disputes and their underlying cause. The ADR process offers many other advantages over the litigation system in terms of them being less timeconsuming, expeditious, flexible, cheaper, and providing a better solution. They avoid vexation and promote the ideals of ‘speedy justice’ and ‘access to justice’. ADRs are now globally regarded as an integral part of their respective judicial system. In India, various new provisions are introduced along with necessary amendments that provide for the ADR mechanism for an efficient settlement of disputes. ADR v

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is proving itself to be a better solution as statistics show a good number of cases successfully settled by the Indian Courts. These provisions give satisfaction to the litigants and help the overburdened Courts to deal with their caseloads. The matrimonial dispute is necessarily a private affair that entails strong emotions from both sides. These disputes, if referred for the Court hearing, are exhausting for both parties. During the Court proceedings, parties fight tooth and nail to ensure that the opposite party doesn’t get any benefit from the entire process. There are a series of allegations and counter-allegations levelled by both parties against each other, irrespective of their accuracy. It may escalate the bitterness between the parties. Thus, a large section of women’s group and gender-sensitized law enforcers believe that matrimonial disputes with all their peculiarities are not appropriate for reference to regular Courts. ADR is an apt means for resolving them. There is a growing reliance on the ADR mechanism for resolving disputes by bringing a paradigm shift in the matrimonial and other forms of conflict. With its focus on conciliation, the ADR has altered the interaction between the disputing parties as the stress is on sustaining communication, unlike Court proceedings that aggravate these disputes. Uniquely, the ADR process recognizes both the emotional and legal dimensions of family dissolution and facilitates a positive approach towards a variety of matrimonial disputes. Indian legislations have embodied many relevant provisions for the closure of the matrimonial dispute through ADR. With the above context in mind, this book explores the emergence, framework, work environment, and success of various ADR processes in general and more particularly for resolving matrimonial disputes. It comprehensively discusses the role of various ADR institutions and their prototypes. It evaluates the attitudes and perceptions of the ADR practitioners and the effect of their patriarchal cultural assumptions of appropriate feminine behaviour that leads to the marginalization of aggrieved woman’s issues during the process. It raises and deliberates on some pertinent questions concerning the performance of ADR, the role of the institutions and practitioners in engaging in unequal power dynamics within a marital relationship, and in dealing with their effect during the ADR process. This unique and first of its kind book deals with a topic that is current in the Indian and Asian context and traverses the dynamics between matrimonial disputes, the role of ADR, and gender justice perspective for fair access to justice. It analyses women participant experience during the ADR process and the vulnerability faced due to power asymmetries. This book lucidly examines and critiques the practice of ADR as it is today and if it preserves gender justice and human rights of women involved in matrimonial litigation. It offers constructive approaches to conducting the ADR process based on the case studies and interviews conducted to transform justice delivery to women. Broadly, the book probes into the worth and relevance of the ADR mechanisms in resolving delicate and sensitive matrimonial disputes from an aggrieved women’s perspective and with gender justice as the underlying theme. This in-depth study brings forth and legitimizes the battered women’s voice in the debate about the efficacy of ADR mechanisms for resolving matrimonial disputes.

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This informative book will be of extensive interest to anyone concerned with gender justice predominantly in the context of marital disputes. It is particularly worth reading for legal professionals, mediators, counsellors, judges, academicians, women rights activists, researchers in the field of gender and women studies, social work and law, ADR educators, policymakers in departments dealing with women issues, and the general readers inclined and interested in bringing a gender perspective to their area of work. This book has the potential of serving as a guide or training manual for sensitizing and capacity building among the people involved in the areas of ADR and gender justice. It is an essential book for the law, social science libraries, and research institutions that are actively engaged in advocacy and policy interventions towards promoting gender equality. New Delhi, India

Neelam Tyagi

Acknowledgements

This book is the outcome of a journey that I undertook as my Ph.D. thesis submitted to the Faculty of Law, Jamia Millia Islamia, New Delhi, India. The book draws a limited excerpt from my Ph.D. thesis. The dedicated effort has evolved into a scholarship crisply unfolding the dynamics between the ‘Matrimonial Disputes, ADR, and Gender Justice’. During this progression, a long list of people encouraged, motivated, and aided me in one form or the other. I wish to acknowledge profound gratitude towards my supervisor Prof. (Dr.) Kahkashan Y. Danyal, for her skilful guidance, helpful scrutiny, analytical wisdom, consistent involvement, encouragement and for sparing her valuable time throughout this journey. I am also thankful to Prof. V. K. Gupta, Ex-Faculty, Faculty of Law, Jamia Millia Islamia, for guiding and developing deep insight into empirical research and its nuances. Further, this study would not have been possible with the invaluable insight provided by all the mediators, counsellors, and judges during the pilot study and the course of data collection. I am deeply indebted to all those women respondents whom I have interviewed for this study. Their kind cooperation, views and opinions on the subject shared during the empirical research has enriched and made this study more meaningful. To complete this book, I received valuable material from many persons. I owe special thanks to the officials and staff of the libraries of Jamia Millia Islamia, Indian Law Institute, Indian Society for International Law, Law Commission of India, Amity Law School, Delhi, Indian Social Institute, and National Commission for Women for helping in locating and providing the relevant research material. Many friends, colleagues, seniors, and mentors provided me with their remarkable support on various aspects of this book. I wish to thank Prof. (Dr.) John Chathanatt, Prof. (Dr.) Mohammad Salim, Prof. (Dr.) Alka Chawla, Dr. Gaurav Varshney, Advocate Ms. Neelam Choudhary, and Advocate Mr. Arun Rathi for their faith in my work. I am thankful to my friends Ms. Parija Phatarphekar, Mr. Paul Jacob, Ms. Ishita Sharma, and Ms. Bhawana Chowdhary for their steadfast and kind cooperation during this journey. I am truly grateful to Ms. Nupoor Singh, Mr. Daniel Joseph Glarance, and the entire team of Springer Nature for their continuous support, kind cooperation and for seeing this book through to completion. I want to thank the anonymous reviewers ix

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of Springer Nature for their advice and comments that gave a tangible direction to this book. A special thanks to my husband, Mr. Sushil Kumar Tyagi, for his tremendous support, patience and moral strength during every trying phase. This book would never have been possible without the constant encouragement, appreciation, and unwavering love of my children, Sheen Tyagi and Ranvir Tyagi, who never complained about my involvement in this work and made this task a little easier. I owe them more than I can express. I want to express my deep respect and admiration towards my parents Mr. Bhoopal Singh Tyagi and Mrs. Hemlata Tyagi for their constant motivation. I am thankful to my sister Sujata Tyagi and brother Raman Tyagi for their affection and for taking pride in my work. Finally, I shall be failing in my duty if I do not put on record my gratitude towards various authors whose work was consulted, referred, or quoted in my research. Thank you all from the bottom of my heart! New Delhi, India January 2021

Dr. Neelam Tyagi Assistant Professor Campus Law Centre, Faculty of Law University of Delhi New Delhi, India

Contents

1 An Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Women, Matrimonial Litigation, and ADR . . . . . . . . . . . . . . . . . . . . . 1.2.1 Idea of a Family and Marriage in the Indian Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.2 Gender Discrimination and Patriarchy . . . . . . . . . . . . . . . . . . . 1.2.3 Matrimonial Litigation and Higher Incidence of Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.4 Courts Overburdened—Emergence of Alternative Dispute Resolution Mechanism (ADR) . . . . . . . . . . . . . . . . . . 1.2.5 Matrimonial Litigation and ADR . . . . . . . . . . . . . . . . . . . . . . . 1.2.6 Societal Prejudices: Its Effect on ADR Outcome . . . . . . . . . . 1.3 Focus of This Book and Its Importance . . . . . . . . . . . . . . . . . . . . . . . . 1.4 About the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Matrimonial Disputes and Scope and Benefits of ADR . . . . . . . . . . . . . 2.1 ‘Until Death Do Us Part’: A Myth . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 The Institution of Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 Changing Concept of Marriage . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.3 Higher Incidence of Matrimonial Disputes . . . . . . . . . . . . . . . 2.2 Reason Behind the Genesis of Matrimonial Disputes . . . . . . . . . . . . 2.2.1 Industrialization, Urbanization, and Westernization . . . . . . . 2.2.2 Nuclear Versus Joint Family: Changing Patterns of Family . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Role Reversal: Social Change and Equality of Sexes . . . . . . 2.2.4 Modernization and Dilution of Social Stigma Attached to Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.5 Other Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Peculiarity of Matrimonial Disputes and Unlocking the Potentiality of ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Indian Judiciary and Access to Justice . . . . . . . . . . . . . . . . . . .

1 1 3 3 5 6 7 9 10 16 18 19 21 21 21 29 33 36 37 38 40 41 42 44 44 xi

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2.3.2 Delays and Reasons Behind Insurmountable Arrears . . . . . . 2.3.3 Need and Emergence of ADR . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 ADR Approach and Benefits for Women Litigants . . . . . . . . . . . . . . . 2.4.1 Provides Reliable Setting to Aggrieved Women for Grievance Redressal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Provides a Platform for Amicable Resolution of Marital Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 Provides a Confidential and Informal Mechanism Unlike Formal Court Proceedings . . . . . . . . . . . . . . . . . . . . . . 2.4.4 Others Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

47 49 52 54 57 59 62 63 63

3 Matrimonial Litigation, Its Aftermath, and ADR Mechanisms in Focus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 3.1 Legal Provisions and Personal Laws Dealing with Marital Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 3.2 Range of Legal Proceedings Flowing from Matrimonial Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 3.2.1 Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 3.2.2 Return of Stridhan and Dowry . . . . . . . . . . . . . . . . . . . . . . . . . 76 3.2.3 Judicial Separation (JS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 3.2.4 Restitution of Conjugal Rights (RCR) . . . . . . . . . . . . . . . . . . . 80 3.2.5 Post-divorce Parenting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 3.2.6 Financial Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 3.2.7 Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 3.3 Aftermath of Matrimonial Disputes and Ensuring Healthy Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 3.3.1 Impact of Divorce on Society . . . . . . . . . . . . . . . . . . . . . . . . . . 89 3.3.2 Impact of Divorce on Children . . . . . . . . . . . . . . . . . . . . . . . . . 90 3.3.3 Impact of Divorce on Woman and Stress of Being a Single Parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 3.4 Locating the Significant ADR Mechanism for Resolving Matrimonial Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 3.4.1 Type of ADR—Primary Techniques and Hybrid ADR Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 3.4.2 ADR in Focus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 3.4.3 Indian Laws for Resolving Matrimonial Disputes Through ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 4 ADR Institutions, Role of ADR Practitioners, and Frequency of Resolution of Matrimonial Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 4.1 Existing ADR Institution and Prototype . . . . . . . . . . . . . . . . . . . . . . . . 117 4.1.1 Family Counselling Centres (FCCs) . . . . . . . . . . . . . . . . . . . . 118

Contents

4.1.2 Legal Services Authorities: Lok Adalat, Legal Aid Agencies, Delhi Legal Aid & Advice Board . . . . . . . . . . . . . . 4.1.3 Gram Nyayalaya or Village Courts or Mobile Courts, Panchayat and Nyaya Panchayats . . . . . . . . . . . . . . . . . . . . . . . 4.1.4 Role of Crimes Against Women Cell (CAWC)/Mahila Thana/Parivar Paramarsh Kendra . . . . . . . . . . . . . . . . . . . . . . . 4.1.5 Role of National Commission for Women (NCW)/Delhi State Commission for Women (DCW) . . . . . . 4.1.6 Role of Religion-Specific Institutions . . . . . . . . . . . . . . . . . . . 4.1.7 Others (Fast Track Courts, Mahila Adalats and Tribunals) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Family Courts and Mediation Centres as Harbinger of Peace and Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Family Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Mediation Centres . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Role of the ADR Practitioners in Settling Matrimonial Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Role of Mediators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Role of Counsellors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Role of Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 Role of Advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.5 Role of Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Frequency of Settlements/Disposals Attained Through ADR Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Stumbling Blocks in Battered Women Access to Justice: Gender Inequities, Violence, and Economic Marginalization . . . . . . . . 5.1 Deep-Seated Barrier Due to Gender Inequities . . . . . . . . . . . . . . . . . . 5.1.1 Patriarchy and Gender Discrimination . . . . . . . . . . . . . . . . . . . 5.1.2 Socialization, Gender Roles and Gender Stereotypes . . . . . . 5.1.3 Gender Subordination and Oppression . . . . . . . . . . . . . . . . . . 5.1.4 Role of Religion and Media in Reinforcing Traditional Gender Roles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Revolutionizing Gender Justice and Areas of Concern . . . . . . . . . . . 5.2.1 Gauging Gender Justice and Equality for Women . . . . . . . . . 5.2.2 Women Movement and the Impact of Reforms on Women Welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Women Empowerment Through Law: Current Scenario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 Non-representation of Women at the Policy Framing Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Women Vulnerability Due to Domestic Violence . . . . . . . . . . . . . . . . 5.3.1 Magnitude of Problem and Posed Challenges . . . . . . . . . . . .

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119 122 125 128 131 135 138 138 141 147 147 150 152 154 156 158 163 163 167 168 168 171 173 175 179 180 181 185 188 191 192

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5.3.2 Factors Perpetuating Domestic Violence . . . . . . . . . . . . . . . . . 5.3.3 Ignorance of Domestic Violence Laws . . . . . . . . . . . . . . . . . . 5.4 Economic Marginalization and Women Seeking Justice . . . . . . . . . . 5.4.1 Women, Lack of Education and Empowerment . . . . . . . . . . . 5.4.2 Women and Economic Disparities . . . . . . . . . . . . . . . . . . . . . . 5.4.3 Poor Community Support and Self-sacrificing Womanhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Understanding Attitude and Asymmetries, Final or Fair Settlements and Quest for Gender Justice Through ADR: Some Dilemmas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Key Challenges to ADR in Focus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.1 Factors Affecting Court-Annexed Counselling Process . . . . 6.1.2 Factors Affecting Court-Annexed Mediation Process . . . . . . 6.2 Apathetic Attitudes Towards Distressed Women . . . . . . . . . . . . . . . . 6.2.1 Paternalistic Attitudes and Neutrality . . . . . . . . . . . . . . . . . . . 6.2.2 Prejudicial Bias and Gender Role Ideologies . . . . . . . . . . . . . 6.2.3 Lack of Sensitive Redressal of Disputes . . . . . . . . . . . . . . . . . 6.3 Final Settlements and Underplay of Gender Justice: Do ADR Permit Equitable Negotiations? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 Power Imbalance and Complexities for Women . . . . . . . . . . 6.3.2 DV and Its Effects on Negotiation . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Final or Fair Settlements and Equitable Negotiations . . . . . . 6.4 Screening Cases of DV and Power Imbalance . . . . . . . . . . . . . . . . . . . 6.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 An Empirical Evaluation of ADR and Gender Justice for Women Facing Matrimonial Litigation—Evidence from Delhi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Interviews of Women, Counsellors, and Mediators . . . . . . . . . . . . . . 7.1.1 Family Courts and Mediation Centres in Delhi . . . . . . . . . . . 7.1.2 About the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.3 Interview Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.4 Focused Discussion with Judges Mediators and Counsellors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 Case Studies: Mediation (Ten) . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 Case Studies: Counselling (Ten) . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Summation of Empirical Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

194 196 198 199 200 210 213 214

217 217 218 225 230 231 235 238 241 242 243 246 250 253 254

259 259 259 260 262 283 291 291 297 301 304

Contents

8 Conclusion and Recommendations for Transforming Indian Justice Delivery System for Achieving Gender Justice . . . . . . . . . . . . . . 8.1 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Recommendations for Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 Recommendations: ADR Process . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 Recommendation: Role of ADR Practitioners . . . . . . . . . . . . 8.2.3 Recommendations: Gender Justice . . . . . . . . . . . . . . . . . . . . . 8.3 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xv

305 305 310 311 314 320 324 328

Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

About the Author

Dr. Neelam Tyagi is an assistant professor at the Campus Law Centre, Faculty of Law, University of Delhi. She completed her law degree from the prestigious Campus Law Centre, Faculty of Law, University of Delhi, New Delhi (India) after obtaining her B.A. in Psychology (Honours) from the same university. Though she has taught many law courses both at the postgraduate and undergraduate level, alternative dispute resolution (ADR) and women and law are her major areas of interest. She is a certified Mediator; and as an educator, is significantly involved in the propagation of the concept of ADR both at the college and community level. She has to her credit various research papers and chapters in the edited book on an entire range of topics dealing with gender justice and its related aspects including gender and labour laws and policies in India, women and personal laws in India, gender and sexuality in media and indecent representation of women, women and children as enslaved victims of human trafficking, the correlation between gender inequities and property laws and challenges to women’s economic empowerment, gender injustice and denials under marriage and divorce law, ensuring rights to surrogates, UNDG and inclusive growth for women, revision and reforms in the family laws through uniform civil code, the linkage between women empowerment and environment, laws for women’s safety and security and legal amendments, to name a few.

xvii

Abbreviations

$ % & A&C A.P. AC ADR AIHCC AILLR AIR ALD All ER ALL MR All. ALT Anr. Approx. Bom. Cal. CAWC CEDAW CILAS CLT Co. CPC Cr L J Cr. M.A. Cri. CrPC CSWI d/o

Dollar Percentage And Arbitration and Conciliation Act, 1996 Andhra Pradesh Appeal Cases Alternative Dispute Resolution All India High Court Cases All India Land Law Reporter All India Reporter Administrative Law Decisions All England Law Reports ALL Maharashtra Law Reporter Allahabad Australian Law Times Another Approximately Bombay Calcutta Crime against Women Cell Convention on the Elimination of all forms of Discrimination against Women, 1979 Committee for Implementing Legal Aid Scheme Calcutta Law Times Company Code of Civil Procedure, 1908 Criminal Law Journal Criminal Miscellaneous Application Criminal Code of Criminal Procedure, 1973 Committee on the Status of Women in India Daughter of xix

xx

DB DCW DEDAW Del. DEVAW DIR DLSA DLT DMC DMMA DPA DSLSA DV DVA ed. edn. eds. eg. EPW ER et al. etc. FC FCA FCC FIR FTC Gau. GDP GLR GOI Govt. GWA HAMA HC HLR HMA HMGA Hon’ble HSA i.e. IA Ibid. ICA ICCPR

Abbreviations

Double Bench Delhi Commission for Women Declaration on Elimination of Discrimination against Women, 1967 Delhi Declaration on Elimination of Violence against Women, 1944 Domestic Incident Report District Legal Service Authority Delhi Law Times Divorce and Maintenance Cases Dissolution of Muslim Marriage Act, 1939 Dowry Prohibition Act, 1961 Delhi State Legal Service Authority Domestic Violence Domestic Violence Act, 2005 Editor Edition Editors Example Economic and Political Weekly English Reports (UK) And others et cetera (and other things) (and so forth) Family Court Family Courts Act, 1984 Family Counselling Centres First Information Report Fast Track Courts Gauhati Gross domestic product Gujarat Law Reporter Government of India Government Guardians and Wards Act, 1890 Hindu Adoption and Maintenance Act, 1956 High Court Himachal Law Reporter Hindu Marriage Act, 1955 Hindu Minority and Guardianship Act, 1956 Honourable Hindu Succession Act, 1956 that is to say (Latin phrase) Indian Appeals Ibidem (in the same place), in the reference immediately cited Indian Contract Act, 1872 International Covenant on Civil and Political Rights, 1966

Abbreviations

ICESCR ICM Id. IDA IEA ILI ILR In re IPC JCC JILI JS JT K.L.J. Kar LJ Ker. KLT LJ LR LSA LSAA Ltd. LW Mad. MANU MCPC Mh LJ MIA misc. MLJ MOU MP MWPRD Mys. NALSA NCRB NCT NCW NGO NHRC No. Ors. P&D P&H

xxi

International Covenant on Economic, Social and Cultural Rights, 1966 Indian Christian Marriage Act, 1872 At the same Indian Divorce Act, 1869 Indian Evidence Act, 1872 Indian Law Institute Indian Law Report In the matter of Indian Penal Code, 1860 Journal of Criminal Cases Journal of the Indian Law Institution Judicial Separation Judgment Today Kerala Law Journal Karnataka Law Journal Kerala Kerala Law Times Law Journal Law Review Legal Service Authority Legal Service Authority Act, 1997 Limited Law Weekly Madras www.manupatra.com Mediation and Conciliation Project Committee Maharashtra Law Journal Moore’s Indian Appeals Miscellaneous Madras Law Journal Memorandum of Understanding Madhya Pradesh Muslim Women Protection of Rights on Divorce Act, 1986 Mysore National Legal Services Authority National Crime Records Bureau National Capital Territory of Delhi National Commission for Women Non-governmental organizations National Human Rights Commission Number Others Probate and Divorce Punjab and Haryana

xxii

p. Para. PC PIL PMDA PMLA PNDT PO pp. Pvt. PWDVA PWDVR RCR Rs. RTI S.C.R. s/o SC SCC SCR SCW SHO SLP SMA SP suo moto Supp. Supra UDHR UK UN UNCITRAL UOI UP US USA v. Viz. Vol. W.P. (Cr.) wef. wrt.

Abbreviations

Page Paragraph Privy Council Public Interest Litigation Parsi Marriage and Divorce Act, 1936 Parivarik Mahila Lok Adalats Pre-Natal Diagnostic Techniques Act, 2003 Protection Officer Pages Private Protection of Women from Domestic Violence Act, 2005 Protection of Women from Domestic Violence Rules, 2006 Restitution of Conjugal Rights Rupees (Indian Currency) Right to Information Supreme Court Reports Son of Supreme Court Supreme Court Cases Supreme Court Reporter Supreme Court Weekly Station House Officer Special Leave Petition Special Marriage Act, 1954 Service Provider On its own motion Supplementary Above or on an earlier page Universal Declaration of Human Rights, 1948 United Kingdom United Nations Charter, 1944 United Nations Commission on International Trade Law Union of India Uttar Pradesh United States United States of America Versus Videlicet (namely) Volume Writ Petition Criminal With effective from With respect to

List of Tables

Table 1.1 Table 3.1 Table 4.1 Table 4.2 Table 4.3 Table 4.4 Table 6.1 Table 7.1 Table 7.2 Table 7.3 Table 7.4 Table 7.5 Table 7.6 Table 7.7 Table 7.8

Comparison between Adjudication and ADR processs . . . . . . . . Comparison between Litigation and different Modes of ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Data of mediation centres compiled from general statistical reports of Delhi Mediation Centre . . . . . . . . . . . . . . . . . . . . . . . . . Data on cases settled through mediation by NALSA . . . . . . . . . . Disposal of cases in monthly Lok Adalat . . . . . . . . . . . . . . . . . . . Disposal of cases in permanent Lok Adalat . . . . . . . . . . . . . . . . . ADR and considerations for and against gender justice . . . . . . . . Profile of woman respondents . . . . . . . . . . . . . . . . . . . . . . . . . . . . Women respondents stereotypes, savings, and assets . . . . . . . . . . Women respondents opinion on matrimonial disputes, domestic violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Women respondents on access to justice and ADR . . . . . . . . . . . Women respondents opinion on mediation and counselling . . . . Response of mediator/counsellor on women, domestic violence, Courts, and ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Response of mediator/counsellor on working of ADR process, impediments to access to justice, and their role . . . . . . . Response of mediator/counsellor on the general functioning of mediation and counselling . . . . . . . . . . . . . . . . . . .

2 99 161 162 162 163 251 262 264 266 270 274 278 281 284

xxiii

List of Boxes

Box 1.1 Box 2.1 Box 2.2 Box 3.1 Box 3.2 Box 3.3 Box 3.4 Box 4.1 Box 4.2 Box 4.3 Box 5.1 Box 5.2 Box 5.3 Box 5.4

What is Alternative Dispute Resolution (ADR)? . . . . . . . . . . . . . . Hindu Marriage According to Scripture . . . . . . . . . . . . . . . . . . . . . Section 89 of the Civil Procedure Code, 1908 . . . . . . . . . . . . . . . . Classification of Legal Remedies Under Muslim Law . . . . . . . . . . Women’s Rights to Maintenance Provisions Under Various Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mediation Under Section 89 of the Code of Civil Procedure (Amendment) Act, 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendments to make Mediation Effective . . . . . . . . . . . . . . . . . . . The Mediation and Conciliation Project Committee (MCPC) . . . . Sample of Counselling Referral Order . . . . . . . . . . . . . . . . . . . . . . Sample Mediation Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Towards Equality, Report of the Committee on the Status of Women in India (1971–74) Government of India . . . . . . . . . . . . . . Women Under the Indian Constitution . . . . . . . . . . . . . . . . . . . . . . Women and Penal Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Five Types of Property Rights or Five Estates of Women Recognized Under the Hindu Laws . . . . . . . . . . . . . . . . . . . . . . . . .

3 24 51 69 73 103 105 142 145 146 183 185 186 202

xxv

Chapter 1

An Introduction

1.1 Background Who would be interested in fighting a lengthy legal battle in the Court of Law? If a young couple ends up wasting their prime years of youth in fighting a longlasting matrimonial dispute, it will lead to frustration in them. Rapid industrialization, globalization, and modernization have resulted in economic independence, social reforms, and dilution of the stigma attached to divorces. There is a significant increase in the number of matrimonial disputes being filed in the Courts. These matrimonial disputes encompass sensitive issues and emotions. If they are contested in the Court, they can be long-drawn and almost always lead to unnecessary and unwarranted allegations levelled by both parties against each other. Instead of waiting for the case to proceed through the protracted litigation process, a faster and efficient resolution of dispute is everyone’s preference. For this, consensual decision-making through ADR is required. ADR process has globally evolved in reaction to the failure of the traditional adversarial process. The Courts cannot withstand the immense increase in the volume of cases leading to the mounting pressure of arrears, case pendencies, and the phenomenon of ‘docket explosion’. ADR is a viable and potent option and an effective mean of dispute resolution. With its entire gamut of variants like counselling, mediation, conciliation, ADR is a statistically successful way of dispute resolution. The United Nations General Assembly Resolution 82 Session 44 declared the year 1994 as the International Year of the Family. Family is the basic, ancient social institution, and a sine qua non for the maintenance of peace in the society. Family and marriage are the two significant institutions of every society, and the breaking of these bonds has severe implications. Every community regards marriage as an imperative institution that binds the couple, their families, as community stabilizers. The majority of social problems arise due to dysfunctional family, so the state makes every effort towards its preservation. The result of divorce and separation is injurious

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8_1

1

2

1 An Introduction

Table 1.1 Comparison between Adjudication and ADR process Criterion

Adjudication

ADR

Process

Adjudicatory

Voluntary

Procedure

Formal, rigid and fixed procedure

Informal and flexible procedure

Time

Dilatory

Speedier

Binding

Binding decision

Non-binding till both parties consent to it

Cost

Costly

Inexpensive

Confidential

Non-confidential

Confidential

Decision

Judges decide

Parties decide

Advocates

Advocate/lawyers assist parties

Advocate/lawyers assistance not required

Presided by

Judges appointed by the state

Parties choose mediators, an arbitrator with expertise

Control

Parties lack control

Parties have a complete control

Discusses

Parties discuss past

Parties discuss future

Stress

Stressful process

Less stressful

Resolution

Contested disputes decided

Related disputes are creatively resolved

Focus

Focuses on issue

Focuses on maintaining a relationship

Remedy

Win-lose remedies

Win-win remedies

to both the spouses who suffer an extreme form of emotional clash and crisis. Additionally, if a woman is not financially independent, she faces monetary difficulties and impoverishment. Children of broken homes suffer the loss of parental affection, financial deprivation, illicit sexual activity, conflict, and delinquency (Table 1.1).

1.1 Background

3

Box 1.1: What is Alternative Dispute Resolution (ADR)? The concept of ADR originated in the USA and is globally an established practice today. It is a term used to describe a consensual and voluntary method of dispute resolution outside the conventional litigation process, usually entered voluntarily by willing parties to sort a dispute in an amicable and alternative way. ADR can be resorted at any time, even when a case is pending before a Court of law. It avoids vexation of cases and promotes the ideals of speedy justice and access to justice. Various ADR mechanisms are arbitration, negotiation, mediation, conciliation, Medola, Med-Arb, etc. Parties have complete control over the outcome of the dispute. The final settlement has greater compliance as parties voluntarily participate in the process, continue in the process as per their wish, and reduce the terms of agreement according to their choice and personal interests. The process tends to improve the relationship between and saves parties time, money, and efforts. It is thus considered a win-win situation for parties. The book focuses on these important aspects. It analyses the relevance and importance of ADR processes, especially in the context of matrimonial disputes with an emphasis on the rights of the aggrieved women who suffer various forms of challenges during the ADR process. It established the inter-link between the institution of marriage and the use of ADR for resolving marital disputes. It delves into the effectiveness of ADR, the existing broad trends in ADR towards resolving matrimonial disputes and if these trends provide equal opportunity to both the couple in terms of voicing their grievances and seeking justice. It probes the effect of paternalism, unconscious bias, role ideologies and mental stereotypes of the ADR practitioners on the battered women and the case decision. It analyses the effect of power imbalance and past domestic violence on the negotiating power of women. It discusses the measures to be undertaken to prevent the impact of the mixing of these ingredients on the outcome. The idea is to bridge the existing gaps in theory and practice for making the outcome of the ADR process in matrimonial disputes equitable, effective, and just.

1.2 Women, Matrimonial Litigation, and ADR 1.2.1 Idea of a Family and Marriage in the Indian Jurisprudence Family is one of the most basic units of society. It is an ancient social institution that is considered mandatory for maintaining peace and order in a society. Family means a

4

1 An Introduction

unit of two or more persons united by the ties of blood, marriage, adoption, or consensual unions, interacting and communicating with each other.1 A family provides financial and emotional security, love, and affection. In a family, each member is expected to respect each other’s status, privileges, and the tangible and intangible rights possessed by them. Sharing and caring remain central during all its dealings. Family is helpful for the generation of human capital resources and has the power to influence individual, household, and community behaviour.2 The members of the family cooperate and perform their respective roles as prescribed by the established social norms. India is proud of its ancient heritage of a united and stable family system. A gradual trend of change from extended families to nuclear families is however emerging due to growing urbanization and industrialization posing a challenge to the institution of the family.3 The inclination towards the extended families converting to nuclear families is up-and-coming. Growing modernization and urbanization have changed religious and cultural beliefs that is a threat to the institution of family, marriage, social construction, and traditions. If we look at the trends, they show a gradual but growing predominance of nuclear families and a reduced sphere of joint families. As per the census 2011, only one-fifth of the families in India are joint families.4 From time immemorial, marriage and family have remained a dominant theme of inquiry and an essential societal organization in India. Family is centred or revolves around stable marriages. Marriage or a matrimonial union is regarded as unending and premised on the firm belief of ‘till death does them separated’ holy and sacred. Unlike the west, marriages in India are considered perpetual and have an element of sacredness and divinity attached to them. Each marriage has its system of responsibilities and arrangements prescribed by the traditions, customs, and social order. But due to numerous contemporary developments and strains, the Indian family and marriage are gradually undergoing a transition. Growing disharmony is a matter of concern for social reformers, activists, and the law enforcing agencies.5 Modern marriages are a strange mix of customary, conservative norms, and western thoughts. There is a growing prominence of individualism, materialism, and preferring selfgratification over family well-being. ‘Social change’ has altered the organization and functioning of the social system. These distortions have changed the functioning of modern Indian families and marriages leading to several predicaments. Family frictions, feuds, disharmony, dissatisfaction, and dispute among married couples are indispensable after-effects of these trends. The crumbling joint families have created a deep void. Due to the lack of guidance from family elders, families are facing new types of struggles, changing role scenarios, and changing life patterns. Some families and marriage can withstand these pressures created by changed social patterns, while the rest just succumbs to it. 1 Desai

(1994, pp. 16–41). (1993, pp. 122–128). 3 James (1999). 4 Census of India, regularly conducted by the Indian Ministry of Home Affairs. 5 Sehgal (1997). 2 Sriram

1.2 Women, Matrimonial Litigation, and ADR

5

1.2.2 Gender Discrimination and Patriarchy The majority of the Indian Joint families are patriarchal.6 They have an unambiguous sexual division of labour, and women are subordinated. Gender relations are premised on the belief that men are more powerful, superior, and privileged in every domain.7 The male members possess the power to decide on behalf of the entire family. A male child is regarded as important for continuing the lineage, but a girl child is perceived as an encumbrance and responsibility.8 Since the beginning, a girl child is socialized to assume secondary and submissive roles in their later life.9 Women in such patriarchal household settings have lesser social synergies with the outside world, lack formal education, and have fewer life choices. They are thus unaware of their rights and entitlements and consequently become the victim of stereotypical behaviour and beliefs. Since childhood, the socialization process and its thrust on transforming children into social beings that take on particular norms and expected behaviour regarding sex and gender roles stop them from taking any step against these discriminations. Family, considered as a secure place, is not that secure for a woman, who is abused, tortured, and her rights are violated at every stage of her life. Due to long conditioning on these lines, gender discrimination and other cruel practices are not perceived as wrong by anyone including the women themselves.10 They either develop acceptance or a spirit of tolerance towards unequal treatment. Offences committed against women within the confines of the home are kept under wraps. For example, domestic violence (hereinafter DV) committed by a husband against his wife is recognized as their private affair, and let alone the outsiders even the immediate family members hesitate and show reluctance towards any intervention. The violence against women is the gravest form of human rights violation, but the traditional setup and poor decisional freedom about things concerning them make them remain stuck in their abusive situations. The perception that the family is the safest place for its members is confronted by the statistics on crime published by the Indian National Crime Records Bureau. The records show a huge number of complaints being filed by women apropos abuse and torture meted out on them in these private domains. The modern and better-educated women are now intolerant of these practices and are demanding legal rights for their emancipation and empowerment. Newer forms of women’s rights are now recognized in greater than before number. Legal provisions are being enacted to deal with a phenomenon like sex bias, gender injustice, violence, dowry, patriarchy, etc. But despite visible changes, discrimination against a woman continues unabated which is attributable to the general mindset of society. Practically, 6 Kapadia

(1982).

7 United Nations Development Fund for Women (2003) Say No to Gender Based Violence Responses

from South Asia. 8 Sonawat (2001, pp. 180–183). 9 United Nations Development Fund for Women (2003) Say No to Gender Based Violence Responses from South Asia. 10 Kaushal (2010).

6

1 An Introduction

various lacunae in the drafting of laws, the absence of legislation in certain important areas relating to women, and loopholes in the way the existing laws are implemented have restricted the flourishing of these women-centric and women favouring laws. Women’s empowerment and gender justice remain a mirage/myth due to the underachievement of women-related laws. Their enforcement by the implementing authorities is ineffective due to the stereotypical and patriarchal mindsets.

1.2.3 Matrimonial Litigation and Higher Incidence of Divorce Traditionally, the sacredness of marriage is recognized and established in India. However, this perception is facing challenges from every corner. The phenomenon of divorce has existed in the past as well. However, it was utilized only in extreme cases of unbearable cruelty, desertion, mental illness, and infertility. The situation is no longer so. The times have changed, so has the idea of divorce. The frequency of divorces in India is on the rise with underlying reasons for divorces assuming new proportions. There could be an entire range of factors that may give rise to matrimonial disputes affecting interpersonal relationships. Societal changes and transformation around are giving novel connotations to the causes that are at the base of marital discords. Among the young, conflicts due to incompatibility, low patience levels, and individual egos are mounting. Negative emotions like bitterness and temperamental differences escalate this.11 The Courts are supplying an expansive interpretation of the legal provisions concerning divorce. Society is also progressively tolerating the reality of the breakdown of the marriage. With increased gender sensitization and awareness, women are responding to the atrocities against them. Cumulatively, industrialization, globalization, modernization, westernization, economic independence, social reforms, and dilution of the stigma attached to divorce have led to an eruption of matrimonial disputes. The Annual Report of the Delhi Mediation Cell between the duration of 2005 to 2019 proves the fact of an increase in the number of cases filed on various reasons for marital disputes. Marital conflicts have negative consequences for spouses. It leads to disorganization of the family and affects the socialization and upbringing of the child. The dissolution of marriage has massive repercussions for the married couple as well, especially women who face destitution and deprivation. Women are the worst sufferers as they face societal stereotypes, develop a sense of discomfort, and become nervous in their social interactions. Apprehensions of being perceived as a home breaker and reduced confidence due to suspicious and questioning gazes make things further difficult for them.

11 Khanolkar

(2005).

1.2 Women, Matrimonial Litigation, and ADR

7

The matrimonial litigation and the visible high rate of divorces impact the community at large. For a child, the family is crucial for survival, health, education, development, and protection. Families provide emotional bonding and socialize a child. It provides stability and support in times of need and love, care, protection, and shelter during stress. After parental divorce, children face psychological and behavioural adjustment issues and high emotional tension due to the loss of parental affection and financial deprivation. As above stated, society and healthy families are interrelated, and a majority of social problems are born out of dysfunctional families, so for prospering community, the state efforts are directed towards the preservation of the marriage and the family unit. Besides, Indian culture considers marriage as a sacred institution that binds the couple and their families.

1.2.4 Courts Overburdened—Emergence of Alternative Dispute Resolution Mechanism (ADR) The well-known phrase ‘Justice delayed is justice denied’ is the current impression of the Indian legal system.12 The adversarial process of litigation is inadequate and suffers from huge pendencies resulting from an influx of a large number of cases. With around three Crores cases pending in various Courts, the Indian legal machinery is under stress. This has motivated the phenomenal growth of ADR in India. ADR implies a dispute resolution process that is an alternative to the process of Court decision pronounced after a trial. The objective of ADR is to speed up the justice delivery system. The concept of ADR is not new to India as since ancient times a long and established tradition of the encouragement of dispute resolution outside the formal legal system has existed. A very good example of this method is the Panchayat system that existed in ancient as well as modern India. In this system, a third party assists the disputing parties in sorting out their differences through an informal process that is somewhat similar to the ADR process of mediation and arbitration.13 The ADR process offers Several Advantages: • It can be used any time, even when a case is pending before a Court of law. • It can provide a better solution to the dispute, expeditiously and at less cost than litigation as it takes only a few days to arrive at a settlement. • It is flexible and not afflicted with rigours of rules of procedure. • The freedom of parties to litigation is not affected by them. • It can be conducted with or without a lawyer. • It helps in the reduction of the work-load of the Courts. • It is conducted by specialists in the subject—matter of dispute.14 12 Attributed

to William Edward Gladstone (1809–1898), the former prime minister of England. Training Manual of India, p. 3. 14 Rao in Rao and Sheffield (2002). 13 Mediation

8

1 An Introduction

• They are used apart and in addition to the conventional mode available under the Indian legal system for settling disputes. The larger goal of the ADR process is to promote the ideal of ‘speedy justice’15 and ‘access to justice’.16 ADR is now considered an integral part of our judicial system. These ADRs are institutionalized in the form of court-annexed mediation centres and counselling centres attached to Family Courts. Delhi mediation centre has opened its various centres in various district Courts complex, and High Court and Family Courts are conducting counselling at its various counselling centres attached to it. Though these ADRs promise to be a great success, most of the studies suggested that various factors are affecting/hindering the effectiveness of these mechanisms. The mediation and counselling provisions are criticized primarily because the redress of domestic violence tends to focus on Reconciliation between the perpetrator (who will not be punished for the offences committed by him) and the victim (women in the capacity of wife) within the judicial system. New legal provisions are enacted, and the existing laws are suitably amended to give space to the ADR process towards an efficient settlement of cases. It gives increasing satisfaction to litigants and inculcates a cooperative culture within Courts and helps them to deal with their caseloads.17 Some of the provision includes Code of Civil Procedure (Amendment) Act, 1999 (Section 80 and Section 89); Alternative Dispute Resolution and Mediation Rules, 2003; The Industrial Dispute Act, 1947; Legal Services Authorities Act, 1997; Indian Contract Act, 1872. Matrimonial litigation can be devastating for the family. Ordinary Court procedures can be long, expensive, and embarrassing and obstruct the amicable settlement of the ancillary issues like custody, maintenance, and matrimonial property. A marital dispute can be resolved by the following ADR provisions like Family Courts Act, 1984 (Preamble and Section 9); The Protection of the Women against the Domestic Violence Act, 2005 (Section 14); Hindu Marriage Act, 1955 (Section 14 and 23(2); Special Marriage Act, 1954 (Section 29 and 34). When applying these alternatives technique, services of professional’s, experts from various fields like psychology, sociology, social workers, judicial officers, counsellors, and mediators are taken. ADR is proving itself to be a better solution as Indian statistics show a good number 15 Hussainara Khatoon v. State of Bihar, AIR1980 SC 1819; Hindustan Sugar Mills v. State of Rajasthan, AIR 1981 SC 1681; Abdul Rehman Antuley v. R.S. Neryak, AIR 1992 SC 1701; P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856; Anil Rai v. State of Bihar (2001) 7 SCC 318; Brij Mohan Lal v. Union of India (2002) 5 SCC 1; All India Judge’s Association v. Union of India (2002) 4 SCC 247; Rupa Ashok Hurra v. Ashok Hurra and another, AIR 2002 SC 1771; Pradeep Kumar Verma v. State of Bihar, AIR 2007 SC 3057; Moti Lal Saraf v. State of Jammu and Kashmir, AIR 2007 SC 2977; Pankaj Kumar v. State of Maharashtra, AIR 2008 SC 3077; Union of India v. Rahul Rasgotra, AIR 1995 SC 2237. 16 Kaul (2006, p. 90). 17 Balakrishnan (2008).

1.2 Women, Matrimonial Litigation, and ADR

9

of cases successfully settled through them.18 It is giving increasing satisfaction to the litigants by providing swift justice. It is inculcating the spirit of cooperative dispute resolution and helping Courts to deal with their caseloads.

1.2.5 Matrimonial Litigation and ADR Conflicts are inherent in every society. They require resolution, maintaining peace and order, and the orderly development of society. The existing justice delivery system is flawed with its inherent weaknesses. ADR is regarded as a way out. There is a growing volume of matrimonial disputes pending across different Courts in India. Diverse matrimonial laws and remedies concerning the resolution of marital dispute are available under the law. There is an entire range of legal proceedings that may flow out of these conflicts including maintenance, recovery of women’s Stridhan (property given to a woman at the time of her marriage), child custody and support, and residence rights to name a few. Matrimonial disputes are private affairs that are not appropriate for reference to regular Courts. These disputes are full of strong emotions, and courtroom clashes can be tiring for both parties. ADR in the context of the matrimonial dispute is different from other varieties of dispute resolution process as they are believed to produce a qualitatively superior solution. To preserve the matrimonial bonds and to make the disputes resolution process smooth, the role of ADR mechanisms like counselling, mediation, and conciliation is gaining importance. In this context, counselling is a novel mechanism to address family disputes through the agency of counsellors who try to settle the issues among the disputing parties and provides justice speedily and at a low cost. Mediation, also known as assisted negotiation, is a discussion process in which the parties have the decisionmaking power. The third neutral person is known as the mediator, only facilitates the process and assists the parties in the negotiation process. Reconciliation with the help of a neutral person involves judging by him to help the parties to enter into a negotiation with each other to resolve their differences. With the constitution of mediation centres, Family Courts (hereinafter FC), and counselling centres, these ADR processes are formalized into court-annexed procedures. It is worth mentioning that in a court-annexed mediation programme, the Court provides the mediation services as part and parcel of the judicial system whereas, in court-referred mediation, the Court merely refers the matter to a mediator. Throughout these ADR processes, reconciliation is the prime agenda with negotiation remaining the key tool. ADR in the context of matrimonial litigation is extremely beneficial as unlike the courtroom setting, it does not lead to acrimony between parties resulting from unnecessary and unwarranted allegations levelled by them. ADR in marital disputes changes the way these legal conflicts are resolved. ADR process is highly confidential 18 See

Annual Report of DLSA, Sutradhar Newsletter of the Family Courts Delhi, and Biennial Report of High Court of Delhi.

10

1 An Introduction

and brings conciliation between parties by bridging the communication gap and saving the marriage without aggravating it. ADR focuses on the emotional and legal dimension of matrimonial disputes and facilitates a positive approach towards other related aspects. It results in a mutually acceptable outcome with the least expenses, within a shorter period and with expert’s assistance.19 The Indian legislations have made many relevant provisions for matrimonial dispute resolution through the ADR technique (detailed discussion in Chap. 3 of this book).

1.2.6 Societal Prejudices: Its Effect on ADR Outcome The patriarchal system and societal prejudices allocate a subordinate position to women in every domain. Women are perceived as lacking in the capacity to decide things for themselves. The content, implementation, and interpretation of laws are impacted by the poor socio-cultural and economic status of women and lack of awareness about ways to access their entitlements. The existing societal prejudices among the people responsible for law enforcement affect the laws and policies enacted for upholding the legal and constitutional rights of women. Studies and reports prove that often, the law enforcers and people in-charge of dispensing justice fail to respond, understand, and help women in attaining the benefits provided under them. Based on their patriarchal assumptions, they advise women about their role and responsibilities. The advice of tolerating and adjusting for family sake is tendered to women dismissing the wrongs committed against them. The fear of the authorities and dilatory legal system beats down their interest needs. They are reluctant till the end to initiate the legal process. The already susceptible women do not get any opportunity to voice their opinion and concerns under the formal judicial system. In such a situation, the need is to opt for an ADR process that is believed to be women friendly as they provide an informal, speedy, and economical remedy. ADR is proposed in a big way as a mean to achieve, speedy, private, confidential, informal, and economical justice without advocates’ assistance. But practically, these aspects make the process work against the interest of women. The past DV, poor educational attainment, and lack of economic capacity create severe power imbalance for women. In the majority of the relationships, they are the weaker party, and while negotiating with the batterer often a situation is created that makes them vulnerable and push them to compromise their needs and interest. It is feared that the privatization of the dispute under these informal systems may lead to coerced decisions due to the pressure exerted by the ADR practitioner. The psychological threat created by DV and power imbalance also makes them reluctant to bargain their legal dues. Despite wrongs and abuses, there is too much focus on reconciliation under the ADR process. This sort of imposed psychology and decisions adversely affects the physical and psychological well-being of the women and counteracts their legal entitlements. The gender role ideologies make society and ADR practitioner expect too much from 19 Fisher

et al. (1991, pp. 177–186).

1.2 Women, Matrimonial Litigation, and ADR

11

women. In such cases, we need to evaluate if the ADR process or litigation will be a better option for women. The book’s prime objective is to probe the efficacy of ADR for women facing marital disputes. Woman’s movements and some measures taken by the government give us a feeling of structural and cultural changes providing equality to women, but the fact is that these changes are only cosmetic and superficial, and in actual practice, due rights are denied to women due to attitudinal bias. In the context of DV, non-earning women are denied rights, and they are advised to stay in a bad marriage because society does not offer any alternative. The state tries to preserve marital relations by finding ways. Social institutions, womens’ role ideologies, norms of behaviour, and religious recommendation hamper the due implementation of women favouring legislations. Stereotypical thought and gender role expectations from women are expected despite special laws for women. Society does not offer any alternative to battered women and being financially dependent have negligible options. In such a scenario, the state authorities almost always stress reconciliation among the parties. Thus, a lot of things need to be done for the protection and promotion of equality for women who undergo ADR mechanisms. If ADR practitioners feel that a woman should reconcile with her husband in certain circumstances, it will be harmful to them. The literature suggests that societal prejudices and notions against women are present in these non-conventional ADR (counselling, mediation, and reconciliation) processes, which are hampering their effectiveness. It is important that where the Court directs the parties to attend counselling or recommends conciliation, it shall take into account any allegations of violence or reluctance of a party to attend because of violence and the need to ensure the protection of the party against violence. There is a paucity of data directly related to the interrelation between societal prejudices, their impact on the psychology of the ADR practitioner and women, and their effect on the ADR outcomes. A few studies indirectly and peripherally related to the theme of the book exists that probes dynamics between marital conflict, ADR techniques, women’s justice, and equality concerns. Going through the existing literature on the issues gave insight for further research and helped to come closer to the causes, consequences, and current state of situation of the topic of the book. Carrie Menkel-Meadow,20 critiques the adversary system, the essay argues that our epistemology has changed in this era of post-structural, post-modern knowledge so that we need to reexamine the attributes of the adversary system as the ‘ideal type’ of a legal system and also reexamine the practice based on the premises of that system. Discussing the pitfalls of adversarial/binary thinking in a post-modern world, he states that we should contemplate a variety of different ways to structure process and the alternative models of legal process and ethics that will better meet the needs of more complex multi-cultural disputes and issues. Arun Mohan21 has based his book on detailed interviews and discussions with people who are a part of the judicial system such as judges, lawyers, and litigants. It briefly analyses the root causes behind 20 Carrie

(1996). (2009).

21 Mohan

12

1 An Introduction

Court delays in the disposal of cases from the district level to the Supreme Court level and provides the possible practical and affordable solutions for minimizing it. Madabhushi Sridhar22 comprehensively details various ADR mechanisms, their scope and evolution in India and other countries. P. C. Rao23 suggests that litigation in India and other parts of the country have become time consuming and expensive. ADR is a growing, valuable field of interest among all. As the number of cases has increased, the pace of administration of dispute has became time-consuming leading to the search for a complementary mechanism to the Court process. Though ADR is encouraged, the effort should be directed towards developing this culture. Garth Bryant G. and Cappelletti Mauro24 gave a detailed exposition of the concept and long historical struggle reflected in modern legal systems for ‘access to justice’. It evaluates the meaning of a right to effective access and the barriers to be overcome. Rifkin Janet25 briefly delves into the articulation of some of the questions basic to an understanding of the relationship between law, mediation, and feminist inquiry. It raises questions in the context of ADR, feminist analysis of law and conflict resolution, and whether in theory and practice mediation challenges or reinforces gender inequality in contemporary society. Justice R. C. Lahoti,26 the Chief justice of India, strongly endorsed the view that there are inherent weaknesses in the existing justice delivery system which calls for effective measures. He also stressed upon the importance of the ADR mechanisms which could play a major role in dispute settlement saving the time, energy, and money of the litigant. To resolve the family dispute by applying alternative technique, services of professional experts from various fields like psychology, sociology, social workers, judicial officers, counsellors, and mediators are taken. Mediation centres are doing a good job as the annual reports of mediation centres are showing a high success rate. Where it appears to the Court that element of settlement exist and that will be acceptable to the parties, then Court can refer the dispute to the ADR mechanism. After a successful mediation, followed by a decree, the plaintiff is entitled to (and is given) a full refund of Court fees. Lizzy James27 has tried to throw light on the psycho-dynamics involved in the families that seek services of the counselling centres of the Family Court. D. Nagasila28 suggests that counselling and consultancy services are staffed by qualified family consultants with special knowledge and expertise in working with children and families experiencing relationship difficulties after separation. Family consultants are also experienced ADR practitioners. The reconciliation proceedings are conducted by the judicial officers. Parties usually show their initial unwillingness

22 Sridhar

(2011). in Rao and Sheffield (2002). 24 Garth and Cappelletti (1978). 25 Rifkin (1984). 26 Jayakumar (2005). 27 James (1999). 28 Nagasila (1992). 23 Rao

1.2 Women, Matrimonial Litigation, and ADR

13

and retaliation when referred to reconciliation. As per Justice Manju Goel,29 law as well as the social obligation of the judge calls for an earnest attempt to make reconciliation. Such matrimonial counselling yields better results when attempted before litigation since polarization has yet not taken place. The counsellors as well as the mediator tries to bring reconciliation between the parties to the matrimonial dispute. Kamla Bhasin30 dealing with the various aspects of patriarchy suggests that it is within the family where the woman learns the first lesson of hierarchy, i.e. subordination and discrimination. Not only the religious laws justify the use of violence against women but even the legal system of most countries is patriarchal and bourgeoisies. System of jurisprudence, the judiciary, judges, and lawyers are suggested for the most part to be patriarchal in their attitude and their interpretation of the laws. Violence and the use of control and subjugation of women are considered legitimate. DV in India a summary report of three studies31 suggested that given the limited options for Indian women outside of the marriage, the NGO community has often placed greater emphasis on reconciliation when addressing the needs of women experiencing abuse. Viable alternatives for long-term shelter and strengthening individual economic capacity are still limited. Most of the state responses seek to mediate solutions to the problem of DV in a manner that does not lead to the breakdown of marital relations. This is true for community-policing, Mahila Dakshata Samiti (women’s advisory boards), Police Counselling Cells, All Women Police Stations, Family Courts, and Legal Aid Boards. Their overriding concern is to identify and work out a solution that mediates the matrimonial conflicts. This tendency has grown due to the field reality that many women may not necessarily opt to break a marriage and state too support the idea of marriage being eternal that must be preserved. On the prevalence of DV against women, Leela Visaria32 indicated some of the possible links between the gender division of labour within the household and incidents of violence. Jamwal33 slams FCs for their failure to deal with gender bias and its non-gender attitudes and approaches. Pin-Hsein-Wu34 has reported that women tend not to take DV as a problematic phenomenon. Concerns like social stigma, domestic affairs as private corners, and gender inequality hold women back from taking legal action. It suggests that before checking the fault under the law, the tendency that women prefer ‘not to take legal action’ should be regarded as one phenomenon of failure of implementation of the DV Act. We need to probe the reasons behind this trend. Heise, Pintanguy, and 29 See: Goel Manju, ‘Successful Mediation in Matrimonial Disputes: Approaches, Resources, Strategies and Management’ Paper presented at First Advanced Course on ADR Methods, Organized by National Judicial Academy, Bhopal, on March 2005. 30 Bhasin (1993). 31 Domestic Violence in India: A Summary Report of Three Studies (1999, p. 21). 32 Domestic Violence in India: A Summary Report of Three Studies (1999, p. 6). 33 Jamwal (2009). 34 Wu (2009, p. 4).

14

1 An Introduction

Germaine35 argued that hierarchical gender relations, perpetuated through gender socialization and socio-economic disparity, are the root cause of violence against women. The Third Monitoring and Evaluation Report, 2009, by Lawyers Collective presented data on the attitude of the police, judiciary, and protection officers towards the DV Act and gender issues. According to this study, some magistrates still believe that the welfare of the family should come before the rights of women and ‘men need to discipline wife and too much fuss is made about DV’.36 The experience with counselling is also not very encouraging. Stereotypical notions prevailed as far as the role expectations from women were concerned. The study found that the onus of settlement or keeping the family together, despite violence, could be imposed on women, and counselling or mediation with this objective will do more harm to women. It defeats the purpose for which the law had been enacted by continuing to retain an archaic notion of DV being a family affair.37 A study of Family Court in Varanasi38 suggests that supportive services like NGO, Mahila Thanas (women police stations), counselling centres, short-stay homes, and women cell that assist FC are not completely utilized due to lack of coordination among them and FC. Various researches by Lawyers Collective suggest that Section 14, which prescribes mandatory counselling for the parties, delays proceedings for up to two months is unreasonable. Redress of DV focuses on conciliation between the perpetrator and victim. This provision rests on the perception that the family unit must be preserved even if it endangers the interests of women who is an invariable victim of DV. The legal faith in Section 14 without any internal check and balance mechanism can be counterproductive as it might hamper the speedy disposal of the cases and may end up convincing the battered women to carry on with the relationship and the situation without seeking intervention.39 Justice Mamta Sehgal,40 in her striking amalgamation of application of psychology to legal problems, appraises us about the practical aspect of transition evident in family setups but is an inventory on the diagnostic and remedial measures. It deals with all the possible aspects affecting the family life, reasons behind the marital disputes and how counselling can be helpful in this direction. Flavia Agnes, Sudhir Chandra, and Monmayee Basu,41 dealing with the issues of gender, equality before law, women’s rights, social justice, and empowerment, critically evaluate the undercurrents of gender equality in the codification of laws and acts with special reference to personal laws of different religious communities. It gives an in-depth account of the development and changes in the Hindu marriage laws, by analysing women’s position in society. The structural context of law reform, the role of public 35 Heise

et al. (1994, p. 29). Third Monitoring and Evaluation Report (2009, p. 26). 37 Third Monitoring and Evaluation Report (2009, p. 154). 38 Family Court in Varanasi: A Case Study (2007, p. 40). 39 Ghosh (2004, p. 54). 40 Sehgal (1997). 41 Agnes et al. (2004). 36

1.2 Women, Matrimonial Litigation, and ADR

15

opinion, parliament, law reform commissions, and women’s movements are analysed which were crucial in generating change in these laws. It brings to the front that despite legislation, even today, very few women avail of this law and the rights provided under them. Issues of dowry and divorce are still nagging. It argues that even the most progressive laws are being implemented in a limited manner without bringing equality. Shobha Saxena42 argues that despite the constitutional rights of justice, crimes and abuse against women are ravaging the lives of millions of women who remain prey in society. This book scans in detail the issues and laws concerning women like rape, molestation, bride-burning, wife-beating, prostitution, abduction, cruelty, offences against marriage, etc. The author attributes this psyche of suffering, to the sense of realization by women that the law cannot put an end to the evil that is endemic in the social structure. In the present setup, there is no place where the women can go for help; no support structure can enable her to escape from her demanding in-laws or the violent and alcoholic husband. The inadequate laws and overburdened judiciary contribute to the helplessness and frustration of victimized women. The author has tried to highlight the ineffectiveness of the existing laws with a critical analysis of the relevant laws in the Indian Penal Code, Criminal Procedure Code, and Evidence Act. The author concludes that all laws, whether protective or general, in practice, fall flat when pitted against the social realities. As a mitigating solution, she suggests that a cooperative effort on the part of all, i.e. police force, social scientists, jurists, social workers, and judges, is the need of the hour to achieve fair and speedy justice for women. Indira Jaising,43 in this book, studies the phenomenon of domestic violence and its impact. It brings forth the alarming statistics and finding regarding the reason behind women not immediately taking recourse to the Courts of law. It provides a multi-level approach to the campaign against domestic violence. The main concern in the book for the implementation and enforcement of the Domestic Violence Act. A provision such as Section 14 can be counterproductive in two ways: firstly, it might jeopardize the speedy disposal of the case, and secondly, it may also convince the aggrieved to continue in that situation without taking any further action. R. K. Tandon44 attempts to trace the pattern of change in women’s lives starting from the nineteenth century onwards till modern times. It examines how the concept of the ‘perfect wife’ was being redefined due to modification in the activities for a female, expansion of arena for female action, and approval of individualism. It also examines how women’s status is affected by their economic position, the lack of which is the reason why Indian women are not equals to Indian men. It comprehensively covers the role of various women’s organizations that became active against patriarchal state and family and condemned tradition and religion for change in the society. It brings forth the overview of violence and injustice against women.

42 Sehgal

(1997). (2007). 44 Tandon (1998). 43 Jaising

16

1 An Introduction

P. D. Kaushik45 observes that discrimination against women, and their oppression is a universal phenomenon. Due to poverty and other contributing factors, the structural framework of women’s subordination has remained unchanged in India. They are denied their basic human rights and access to justice. It is suggested that lack of legal literacy, insensitive, and male-dominated enforcement agencies and judiciary continues to act as major impediments in accessing justice for women. Complexities of law and procedures build an inherent bias against women in accessing justice. The book concludes that justice is slow in the conventional justice delivery system. As per Justice Manju Goel,46 the process of mediation for resolving the matrimonial disputes is different but preferred in its form and content due to factors like motivation, sentiments, social compulsions, and personal liabilities that produce qualitatively superior solutions. Most of the literature and studies recommends improvement of our quality and content of counselling, mediation, reconciliation, and conflict resolution as weand conflict resolution as we have huge pendencies but a relatively fewer number of Courts. Therefore, ADR techniques are promising in terms of the statistics that promote them as a great success. However, studies and literature recommend an improvement in their quality and content. ADR still suffers from various limitations that are obstructing the realization of its full potential. Hopefully, these precincts will be identified, and the ADR will then play a major role in lessening the burden of the legal system and for justice to battered women litigants. The women’s groups are also vocal about these injustices and mobilizing their fight in this regard. The discourse on lack of sensitivity among the law-making and enforcement agencies regarding the crimes against women is gathering strength.47 Flavia Agnes48 criticizes the FC process as pro-family and anti-women. The lacuna in procedural and substantive law requires changes to make them effective. She states that for dealing with unequal power balance, these Courts should be like labour Courts. The aim of these mechanisms ought to have been ‘to be free from subconscious pressure of the preconceived notions and tyranny of dogmas and adopt a realistic, rational and pragmatic approach’.49

1.3 Focus of This Book and Its Importance While dealing with the ADR process, core concepts like disputant’s autonomy, neutralist versus interventionist styles of the mediator, history of spousal abuse, and 45 Kaushik

(2007).

46 Goel Manju, ‘Successful Mediation in Matrimonial Disputes: Approaches, Resources, Strategies

and Management’ Paper presented at First Advanced Course on Alternative Dispute Resolution Methods, Organized by National Judicial Academy, Bhopal, on March 2005. 47 Dhanda (1999, p. 351). 48 Agnes (1996). 49 Agnes (1990, p. 272).

1.3 Focus of This Book and Its Importance

17

power imbalance create controversies. They are a subject matter of constant inquiry and deliberation in matrimonial mediation and counselling. There is a gap in the understanding and interplay of these phenomena due to the unavailability of reliable data about their precise nature. In the Indian context, relatively negligent organized data are drawn together to get an accurate picture of the functioning of the ADR process and the techniques of the ADR practitioners, especially in the context of gender and matrimonial disputes. There is a gap in the knowledge about the patterns followed by ADR practitioners to deal with these sensitive and contentious issues. It is unknown if the stereotypes, paternalism, role ideologies, power imbalance, etc., compromise the ability of the women to stand for their rights and interests during the ADR negotiations. With the above backdrop, the book tests the functioning of various ADR process, particularly in connection to marital dispute debates and gender justice statutes and jurisprudence. It deliberates on if undue stress on reconciliation and preservation of marriage despite abuse and DV negates the statutory and legally granted rights of battered women. Further, when resolving matrimonial disputes through ADR if the patriarchal mindset and biases of ADR practitioner neutralise the legal rights of aggrieved women. The book explores the traditional litigation process and the philosophical causes behind the emergence and growth of ADR. It generally explores the socio-legal framework, work environment, and success rate of various ADR mechanisms and in particular for resolving matrimonial disputes. It critically analyses the impacts, implications, and effectiveness of ADR in the present legal structure with a special reference to counselling, mediation, and reconciliation. It gives an insight into the conceptual connection between the Indian culture, matrimonial disputes, and the ADR variant’s in practice when applied to settle sensitive family matters. It analyses the approach regarding the interpretation and construction of the provisions concerning ADR and the magnitude of reconciliation. Besides, it surveys the role of people conducting the ADR processes including the judges, lawyers, mediators, and counsellors, their unconscious attitudes, prejudice, and perceptions regarding the importance of preserving the family unit, even to the jeopardy of an aggrieved woman. It determines the experience, accessibility, vulnerability, level of satisfaction, and challenges faced by aggrieved women. It delves into probing the ways of conducting the ADR process and if the decision arrived through them is informed and voluntary. The book probes how well heard and understood the woman feels and if she is provided with an equal opportunity at every stage by the law enforcers and ADR practitioners. The book discusses the alternative ways of conducting the ADR process that preserves the notion of gender justice and human rights of women involved in matrimonial litigation. It highlights the effect of various factors that impacts the ADR mechanisms and suggest structural changes in its functioning. It evaluates the success rate of the ADR and the grey areas that need improvement for making these processes a great success. Lastly, from aggrieved women’s perspective, it deals with the dynamics between matrimonial litigation, ADR, and gender justice aspect. The book ties information from distinct fields of expertise. It blends the theory and practice of ADR, especially mediation and counselling, family law in India, and

18

1 An Introduction

gender justice. It is a helpful guide for the disputing parties to acknowledge ADR as a more civilized way of closure of a marital dispute. It is an excellent information source for those who will be assisting battered women during their divorce and separation phases. The book gives a new insight in knowing about the efficacy of ADR mechanisms, especially for resolving matrimonial disputes with gender interests as a key component by bringing in the voice of a frequently unrepresented battered woman.

1.4 About the Book The book explores the above-stated themes with the help of the existing data and by theorizing the data collected through empirical research. Accordingly, the entire book is divided into eight chapters. Chapter one introduces the focal point of this book. The second chapter introduces the need to evaluate the institution of ADR in the context of marriage. It discusses the reasons behind the genesis of sensitive matrimonial disputes and the scope and potential of ADR in resolving and reducing their escalation. It highlights the benefits offered by the ADR process to women litigants. The third chapter discusses various matrimonial laws in India and the range of legal proceedings flowing from marital conflicts. This chapter is useful in understanding the impact of divorce on the separating couple, children, and society. In the context of matrimonial disputes, it gives a comprehensive exposition of the concept of three ADR processes, viz. counselling, mediation, and reconciliation, specifically employed to resolve a marital dispute. Chapter four evaluates the existing ADR institutions and their prototypes. It examines the recent emergence of court-annexed FC and mediation centres and their appropriateness and effectiveness in dealing with matrimonial disputes. It further highlights the role of various ADR practitioners involved in conducting these processes. It segregates the existing secondary data to determine the frequency of settlements and disposals reached through ADR. Chapter five begins with an analysis of the factors that are responsible for the subordination of women, viz. patriarchal social structure, gender stereotypes, socialization, and role assignment. The chapter examines the various legal, professional, structural, financial constraints, societal biases, and patriarchal approaches against women in Indian society and their effect on women’s access to justice. Chapter six assesses the factors affecting counselling, mediation, and reconciliation when used for resolving matrimonial disputes. It analyses the effect of various challenges in the ADR process like paternalism, gender role ideologies, attitudinal biases of the practitioners and if that reinforces the position of powerlessness in women while realizing their rights. This chapter delves into finding if the final settlements are voluntarily accepted and whether the asymmetrical power relations make it difficult for a woman to bargain well, compromise her stakes, and tolerate injustice.

1.4 About the Book

19

Chapter seven is an empirical evaluation of the ADR and gender justice aspect in matrimonial litigation. Several case studies and interviews of women, counsellors, and mediators conducted over a while highlight crucial findings that are persuasive to the topic of the book. It emphasizes the need to make a concerted and honest effort for changing the patriarchal stereotyped attitudes. These issues are evaluated to know how far the objective of protection and promotion of gender equality for women is achieved through the ADR process. Chapter eight effectively concludes the book on a note that ADR is undoubtedly an efficacious mode of dispute resolution. However, challenges still exist that impinge upon their potential. The book proposes pertinent suggestions/recommendations in terms of institutional, policy, and legal framework for improving the efficiency of ADR mechanisms for resolving marital disputes with gender justice remaining central.

References Agnes, F. (1990). Family courts: From the frying pan into the fire? The Lawyers, 4. Reprinted in John, M. E. (Ed.). Women’s studies in India: A reader. Penguin Books. Agnes, F. (1996). FC’s: From the frying pan into the fire. In I. Jaisingh (Ed.), Justice for women— Personal laws, women’s rights and law reforms. The Other India Press. Agnes, F., et al. (2004). Women and law in India—An omnibus. Oxford University Press. Balakrishnan, K. G. (2008). Mediation and conflict resolution. Nyaya Deep, 9(2) (4). Bhasin, K. (1993). What is patriarchy?. Kali for Women. Carrie, M.-M. (1996). The trouble with the adversary system in a postmodern, multicultural world. William & Mary Law Review, 38(5). Desai, M. (1994). Concept and conceptual frameworks for understanding family, enhancing the role of the family as an agency for social and economic development. TISS. Dhanda, A., & Archana, P. (Eds.). (1999). Engendering: Essay in honour of Lotika Sarkar. Eastern Book Co. Fisher, R., et al. (1991). Getting to yes: Negotiating agreement without giving in (2nd ed.) Penguin Books. Garth, B. G., & Cappelletti, M. (1978). Access to justice: The newest wave in the worldwide movement to make rights effective. Buffalo Law Review, 27. Ghosh, S. B. (2004). Contextualizing domestic violence. In R. Bhattacharya (Ed.), Behind closed doors: Domestic violence in India. Sage. Heise, L. L., Pitanguy, J., & Germain, A. (1994). 255 world bank discussion papers violence against women: The hidden health burden. The World Bank. International Center for Research on Women. (1999). Domestic violence in India: A summary report of three studies. Washington, DC. Jaising, I. (2007). Law of domestic violence (2nd ed.). Universal Publication Co. James, L. (1999). Family counselling in family court: An analysis of psycho-social dynamics of families of litigants. (Thrissur Family Court) Discussion Paper No. 13, Kerala Research Programme on Local Level Development, Centre for Development Studies, Thiruvananthapuram. Jamwal, N. S. (2009). Have family courts live up to expectations? Mainstream, XLVII (12). Jayakumar, Y. F. (2005). Conciliation and family dispute resolution in Indian legal system. The IUP Journal of ADR. Kapadia, K. M. (1982). Marriage and family in India. Oxford University Press. Kaul, S. K. (2006), Access to justice. Nyaya Deep, VII(4).

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1 An Introduction

Kaushal, R. (2010). Protection of women from domestic violence act 2005—An appraisal. Mainstream, XLVIII(11). Kaushik, P. D. (2007). Women rights. Bookwell. Khanolkar, R. S. (2005). Mediation—The best means for family dispute resolution. AIR Journal. Mediation and Conciliation Project Committee. Mediation training manual of India. Supreme Court of India, Delhi. Mohan, A. (2009). Justice courts and delays (Vol. 1 and 2). Universal Law Publishing Co. Pvt. Ltd. Nagasila, D. (1992). Family courts: A critique. EPW, 27(33). National Institute of Public Cooperation and Child Development. (2007). Family court in Varanasi: A case study. New Delhi. Rao, P. C., & Sheffield, W. (Eds.). (2002). Alternative dispute resolution—What it is and how it works. The International Centre for Alternative Dispute Resolution, Universal Law Publishing Co., Pvt. Ltd. Rifkin, J. (1984). Mediation from a feminist perspective: Promise and problems, law and inequality. A Journal of Theory and Practice, 2(1). Sehgal, M., & Sherjung, N. (Ed.). (1997). Marital disputes and counselling (Vol. I and II). APH Publishing Corporation. Sonawat, R. (2001). Understanding families in India: A reflection of societal changes. Psicologia: Teoria e Pesquisa, 17(2). Sridhar, M. (2011). Alternative dispute resolution—Negotiation and mediation. Lexis Nexis Butterworths Wadhwa. Sriram, R. (1993). Family studies in India: Appraisal and new directions. In T. S. Saraswati & B. Kaur (Eds.), Human development and family studies in India: An agenda for research and policy New Delhi. Sage Publishers. Tandon, R. K. (1998). Women in modern India. Indian Publishers Distributors. Third Monitoring and Evaluation Report 2009 on the Protection of Women from Domestic Violence Act, 2005. UN Trust Fund to End Violence against Women. Lawyers Collective. Women’s Rights Initiative in collaboration with The International Center Lawyers Collective Women’s Rights Initiative. Wu, P.-H. (2009). Reviewing the implementation of domestic violence act. Report Based on Interviews of Women Who Had Suffered from Domestic Violence.

Chapter 2

Matrimonial Disputes and Scope and Benefits of ADR

2.1 ‘Until Death Do Us Part’: A Myth 2.1.1 The Institution of Marriage Family and marriage are the two of the most important, oldest, and fundamental institutions on which any society rests for its existence and sustenance. Marriage is engrained in the family rather than the family in marriage.1 Various definitions are proposed by writers to bring out the concept and idea of marriage. The common understanding is that it is an approved social pattern whereby two or more persons establish a family. It is also a societal and legally sanctioned durable bond that permits sexual intercourse between two people of the opposite sex for parenthood. It is a way to regulate human life, a durable connection, and a mechanism to give the child a legitimate position in society.2 The Black Laws Dictionary defines marriage as ‘legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex’.3 As per Lord Penzance, marriage is legally a voluntary union between a man and a woman that has certain special features and purposes to fulfil.4 The institution of marriage means an exclusive union between men and women that bring harmony and integration into the social fabric, and thus, due recognition should be accorded to it for better social integration.5 With its own set of rules and regulations, the marriage institution classifies the rights, duties, and privileges of both the parties for each 1 Mitchell

(1979, p. 119). (2007, p. 327). 3 See Black’s Law Dictionary (6th ed.) (1990, p. 972). 4 Hyde v. Hyde (1866) LR 1 IP & D 130. 5 Tripathi and Arora (2012, p. 170). 2 Rao

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8_2

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2 Matrimonial Disputes and Scope and Benefits of ADR

other including the mutual monopoly of sexuality and property.6 It is a junction of three duties, i.e. social, religious, and spiritual.7 The foundation of every marriage is rooted in the religion that has its connotation, perceptive, and concepts of marriage. Marriage is viewed as ‘the true social building blocks of society’.8 India is a multicultural and pluralistic society. There are five major religious communities (Hindus, Muslims, Christians, Parsis, and Jews) in India, and each one of them is guided by their laws rooted in their religious scriptures, customs, and traditions. The Constitution of India in Entry 5 (List III of the VII Schedule) defines personal laws or civil code to govern each community by controlling, covering, and directing their issues concerning marriage, divorce, maintenance rights, guardianship of young children, rules and conditions for adoption, principles of succession and inheritance and rights relating to property, etc. In the context of marriage, personal laws determine and regulate the specific condition concerning valid marriage, the rites, and rituals for its solemnization, moral duties of both the parties, social code of conduct to practice, and other prescripts. Thus, the personal laws regulate social relations in the family domain and the relationship between men and women based on their religion. To completely appreciate the permanency aspect of a marriage and the position of women under them, a brief survey of the marriage institution in India as prescribed under the various personal laws is necessary.

2.1.1.1

Hindu Marriages

As per the Hindu Vedic philosophy, marriage is an important institution based on religious rites and ceremonies. Marriage is regarded as one of the sixteen most important ‘Samskaras’ or sacraments essential during one’s lifetime that is indissoluble.9 It is a union by which ‘bones with bones, flesh with flesh and skin with skin, the husband and wife become as if they were one person’.10 Matrimony was necessary for the performance of religious duties and was made obligatory upon every Hindu. Without a wife, an unmarried man was not allowed to perform religious ceremonies like ‘Yajna’.11 Greater emphasis was on the marriage of Hindu women as Narada (an ancient jurist) said that an unmarried woman if not sanctified by the rites of marriage and if she dies without begetting a son she will not attain Moksha.12 It was thus necessary for every man and woman to marry and receive this sacrament. Marriage was believed to fulfill the four great objectives of life—Kama, Artha, Dharma, and Moksha. The Vedic Hindu laws from among the four major ashrams (phase or stages of growth) or Asrama-Vyasvastha (scheme for the organization of 6 Narayan

et al. (2015). Jayachandra v. Aneel Kaur, AIR 2005 SC 534. 8 Thornton (2005, p. 4). 9 Gandhi (2012, p. 80). 10 Sarkar (1972, p. 191); Subndari Bai v. Shivnarayan, ILR Bom 81. 11 Kane (1975, p. 193). 12 See Footnote 11. 7A

2.1 ‘Until Death Do Us Part’: A Myth

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the life of an individual’s life) that divides the life of a human; marriage or ‘Grihastha Ashram’ (married life) was the second important phase. Others being Brahmacharya (student life), Vanaprastha (contemplation and withdrawal) and Sannyasa (renunciation). Hindu scriptures regarded marriage as the basis of all religious activities, necessary to fulfil religious duties and a form of ‘Dharma’ (obligation).13 The other purposes that this sacred union fulfilled were the procreation of children, continuation of family lineage, and as a social institution regulated the proper relationship between the sexes.14 Marriage was regarded as an eternal bond by which parties become united with each other in the current life and the life to come. It was believed that marriages are made in heaven and celebrated on earth. As a strong and sacred bond, it will not only last in this life but across seven or more live.15 Menski equated marriage to cosmic forces and opined that ‘their permanent timeless unity, their visible and invisible linkages, and the atmosphere of symbiotic mutual support all serve as blueprints for an everlasting human marriage’.16 The common notion that marriages are made in heaven and only death is the escape route from this holy tie was firmly rooted.17 There was no place for divorce or remarriage.18 Though writers like Kautilya were liberal in matters concerning marriage and divorce. Remarriage of a woman was approved in cases when her husband was abroad for a long time, if he was suffering from an incurable ailment, if he was sterile, an outcast, a bad character, guilty of high treason, or was dangerous to her life. The husband had the right to divorce his wife if she is infertile or failed to give birth to sons. Divorce by mutual consent was also possible on the ground of ill-feeling and if both the parties agree.19 The ancient text Parasara IV (30) and Narada XII (37) permitted remarriage of a woman in case of five calamities, Viz: if her husband is dead, is lost, is impotent, has become a Sanyasi (hermit), or has fallen (committed a sin resulting in his excommunication). Thus, divorces were accepted with high occurrence in certain caste groups but not as a matter of regular practice.20

13 Bhatia

(2010, p. 168). (2003, p. 335). 15 Sardar (1997, p. 2). 16 Menski in Julia (1991, p. 52). 17 Diwan (2002, p. 21). 18 Murthy (2006, p. 126). 19 Murthy (2006, p. 128). 20 Holden (2008). 14 Saxena

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Box 2.1: Hindu Marriage According to Scripture (A) Dharmya (An approved form of Marriage) Brahma marriage: In this form of marriage, the girl, decorated with clothes and ornaments, is given in marriage to a learned and gentle bridegroom. Today, this is the prevalent form of marriage in Hindu society. Daiva Marriage: In this form of marriage, the girl, decorated with ornaments and clothes, was offered to the person who conducted the function of a Purohit in the Yajna. Aarsh marriage: In this form of marriage, a Rishi accepts a girl in marriage after giving a cow or bull and some clothes to girls parents. These articles were not the price of the bride but indicated the resolve of the Rishi to lead a household life. Prajapati marriage: In this form of marriage, the daughter is offered to the bridegroom by blessing them with the enjoyment of marital bliss and fulfilment of Dharma. (B) Adharmya (An unapproved form of Marriage) Asura marriage: In this form of marriage, the bridegroom gets the bride in exchange for some money or articles given to bride’s family member. Gandharva marriage: It is a result of mutual love and affection between the couple and ceremonies performed after a sexual relationship between the bride and the bridegroom. Rakshas marriage: A primitive form of Hindu marriage in which the bridegroom takes away the bride from her house forcibly after killing and injuring her relatives. Paisacha marriage: The most condemnable and sinful form of marriage in which a man seduces a woman in the state of sleep, intoxication, or mental disorder, and out of shame, the girl is married to him. The parents were put under the sacred duty of marrying off their children.21 Hindu marriage prescribed a set of rites and rituals; the performance of them made the marriage complete. This included: Kanya Dana, home (offering in the sacred fire), Panigrahana (taking the hand of the bride), Agni Parinayana and Saptapadi (taking of seven steps by the bride and groom together) properly.22 Hindu scriptures prescribed eight types of Hindu marriages. Among them, the first four were approved (Dharmya) or proper (Brahma, Daiva, Arsa, and Prajapatya) and the other four were unapproved (Adharmya) or improper (Asura, Gandharva, Rakshasa, and Paisacha).23 Presently,

21 Karve

(1965). (1994, pp. 4–5). 23 Chatterjee (1972, p. 44). 22 Mishra

2.1 ‘Until Death Do Us Part’: A Myth

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only the marriages solemnized according to the Hindu Marriage Act, 1955 (hereinafter HMA) are recognized as a valid marriage. The conventional Hindu marriage was and is still to a larger extent premised on mainstream conservative rules like the practice of monogamy, chaste unmarried girl, a marriage is for seven lives, unthinkable divorces, and no widow remarriage. It was considered important for a true wife to preserve her chastity before and after her husband’s death.24 The Hindu personal laws are now codified under the four major modern Acts, Viz. the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Adoption and Maintenance Act, 1956; and the Hindu Minority and Guardianship Act, 1956 to govern Hindus in various matters. These codified laws apply to Hindus, Buddhists, Jains, or Sikhs, any person who is born to Hindu parents and any person who is not a Muslim Christian, Parsi, or Jew, and who is not governed by any other law. Section 2 of the HMA defines Hindu to mean Vaishaiva, Lingayat, or a follower of the Brahmo, Prarthana, Arya Samaj, and to any person who is a Sikh, Buddhist, or Jain by religion. The codified modern Hindu laws are way different from the customary Hindu laws in matters concerning marriage and divorce. The HMA does not define marriage but only prescribes conditions and ceremonies for marriage under Section 5 and Section 7. Section 8 provides for the registration of marriage. A Hindu marriage can be solemnized as per the customary rites and ceremonies of either the boy’s caste or the girl’s caste (if it is an inter-caste Hindu marriage).25 The HMA details the grounds for separation, nullity of marriage, and divorce under its provision. The marriage that was previously a sacrament, a union for the performance of religious and spiritual duties eternal, indissoluble, and sacred bond that unites couples forever and ever in this world and beyond are only notional now.26 The practice of polygamy prevailed in Hindu society but after the codification of Hindu laws, the rule of monogamy is now enforced. Marrying again during the lifetime of the spouse now constitutes an offence of bigamy. Section 5(i) prohibits bigamy, Section 11 makes a bigamous marriage void, and Section 17 makes it a penal offence under Sections 494 and 495 of Indian Penal Code, 1860 (hereinafter IPC). But due to the absence of cogent documentary proofs and evidence required to prove the solemnisation of a second marriage, for Indian women, it remains a challenge to prove their claims.27

2.1.1.2

Islamic Marriages

In Islam, except for protecting certain rights of Muslim women’s on the topic of maintenance rights and to regulate the grounds for divorce, by large the Islamic laws have remained unchanged. Two codified laws are passed in India to govern the Muslim Personal Laws. These are the Dissolution of Muslim Marriages Act, 1939 (hereinafter DMMA), and the Muslim Women (Protection of Rights on Divorce) Act, 24 Kapadia

(1966, p. 169). Chandra Bhagat v. the State of Jharkhand (2013) 1 SCC 562. 26 Kumar (2010, p. 6). 27 Priya v. Suresh, 1971 AIR 1153. 25 Ram

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1986 (hereinafter MWPRD). Marriage between two Muslims is known as ‘Nikah’. A Muslim marriage is non-ceremonial28 and often its true nature is debated. Different writers have given different opinion on the nature of Muslim marriage. There is a diversity of opinion on it being a purely civil contract to it being a religious sacrament or a religious duty, i.e. Sunnat. Judicial verdicts have adjudicated on this issue through its various pronouncements. In the case of Abdul Rahim v. Salima,29 Justice Mahmood opined that Muslim marriage is not a sacrament but purely a civil contract. Later in Anis Begum v. Mohammad Istafa Wali Khan,30 it was observed that a Muslim marriage have aspects of a civil contract but it is not a pure contract. It is an ‘Ibadat’ (devotional acts) and has a religious aspect to it. The modern writers defer from the previous understanding of the concept of marriage. They harmonize the conflict by stating that Muslim marriage is an institution of Ibadat, clothed in the legal form of contract regulating sexual intercourse whose continuance is dependent upon the maintenance of conjugal affection.31 Once a marriage comes into existence, it is treated as a sacred covenant (mithag-i-ghalid) which in law takes the form of a contract or Aqd. The contractual element is justified based on protecting the mutual benefit of the parties to the marriage. It is now believed that Muslim marriage is like Ibadat and Muamlat (dealing among men or worldly).32 It is a contract between a Muslim man and a woman which has for its object procreation legitimization of children (Section 20).33 Further, Muslim personal laws do not recognize the concept of marriage being an eternal, indissoluble union. There are varieties of divorces that are practiced for a long. To date, the tenets of Islamic laws permit polygamy by allowing that a Muslim male may have four wives. If a Muslim male marries a fifth time, this marriage will not be void but irregular that can be rectified by divorcing any one of the other wives at a date later than the performance of the fifth ceremony (The Quran, IV: 3). In this sense, the Muslim laws are discriminatory towards a Muslim woman who is not permitted to marry more than one man at a time. In case she contracts a second marriage, she will even be guilty of bigamy under Section 494 of the IPC and will face criminal action. Again, a Shia male can contract a Muta marriage (a temporary marriage or marriage for an agreed period)34 with any number of females, but this liberty is not available to Muslim women showing the unequal treatment towards them under the Islamic ideologies. If we look at the conditions prescribed for a valid (Sahih) Muslim marriage parties must have the capacity to marry, there should be no legal impediment, parties must give their free consent, there should be a proposal (Ijab), acceptance (Qubool), consideration (Dower or Mehr) and conducted in the presence

28 Mahmood

(2002, pp. 53–55). 1886 8 ALL 149. 30 AIR1933 All 634. 31 Ahmed (2012). 32 Fyzee (1999). 33 Mulla (1977). 34 Ahmed (2012, p. 140). 29 ILR

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of sufficient witnesses only in Sunni Law.35 In case any Muslim marriage is performed without the party’s free consent, it is not valid.36 Thus, Muslim marriage is akin to the terms of the contract provided under the Indian Contract Act, 1872 (hereinafter ICA). Muslim marriage contains all the essential ingredients of a contract (like Proposal, Acceptance, Consideration, and Free Consent). At the time of Muslim marriage, a contract known as Nikahnama is prepared that outlines the right and responsibilities of both the parties to the marriage. All these points prove that Muslim marriage is not based on the notion of it being a permanent indissoluble union.

2.1.1.3

Christian Marriages

As per the Hyde v. Hyde,37 case marriage in Christendom may be defined as the voluntary union for life of one man with one woman to the exclusion of all others. Holy Bible (Mathew 19:6) states ‘Therefore what God has joined together, let no one separate’. Jesus underscored the importance and sacredness of lifelong marriage in his teachings.38 The Holy Scriptures and Canon law of Christianity recognize marriage as a sacramental union. Once entered, it becomes an indissoluble union essential for the procreation of children that has consent and consummation as its essentials.39 Under Christianity, the two denominations, Catholics and the Protestants, have separate notions of marriage and divorce. Christian marriage is a solemn and public covenant between a man and a woman in the presence of God.40 The judicial divorces were originally recognized in 1866 under the Matrimonial Causes Act, 1857. Now, the Christian laws relating to marriage and divorce are contained in the Indian Christian Marriage Act, 1872 (hereinafter ICMA), and the Indian Divorce Act, 1869 (hereinafter IDA), respectively. As per Section 3 of ICMA, Indian Christian means original inhabitants of Bharat who by conversion adopted Christian religion or those though not baptized profess the Christian religion. Further Section 2(d) of The Indian Succession Act, 1925, Indian Christian means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion. The ICMA and IDA prescribe the conditions of a valid Christian marriage, Viz. age, free consent of parties, and nonpermissible polygamy. Every Christian marriage has three essentials to it; parties are unmarried at the time of marriage, they are capable of sexual intercourse, and they know the nature of the contract that they freely undertake.41 Section 4 of the ICMA

35 Chapter 3: Essential of Marriage (Sections 17 to 69). Compendium of Islamic Laws (2001, pp. 14–33). 36 Mohiuddin v. Khatijabibi, 41 Bom L.R. 1020. 37 (1866) LR 1 P&D 130. 38 Rao (1991, p. 2). 39 The Report of the Royal Commission on Capital Punishment (1949–53, p. 80). 40 The Book of Common Prayer (1979, p. 422). 41 Gilby (1952, pp. 18–19).

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states that every marriage to be solemnized according to this Act and its provisions else it shall be void. Section 5 lists the persons by whom marriage may be solemnized. This section brings out the sacramental aspect of Christian marriage in India. A Christian marriage can only be performed by licensed religious leaders that include a Minister who has received Episcopal ordination, by any Clergyman of the Church, by any Minister of Religion licensed under this Act. Under the Act, an appointed Marriage Registrar and licensed person has the authority to perform and issue certificates of marriage between Indian Christians. The Act prescribes penalties under Section 69 for the violation of these conditions. Part II of the Act lays down the detailed guidelines about the time and place at which marriages may be solemnized. Section 60 prescribes essential conditions related to marriages of Indian Christians for granting certificates. Thus, the certification part of the Christian shows the contractual aspect of the marriage but the way the marriage ought to be performed points at its sacramental aspect. The IDA recognizes certain grounds on which divorce to end the marriage can be sought. The discriminatory divorce grounds in IDA are now repealed after huge demand for changing these unequal provisions was made.

2.1.1.4

Parsi, Jews, and Civil Marriage

Though the Parsi marriage is regarded as a contract, it has a sacramental flavour to it. The Parsi Marriage and Divorce Act, 1936 (hereinafter PMDA) deals with matters concerning Parsi marriage and divorce. Section 2(7) of this Act applies to Parsi who is a Zoroastrian Parsi and professes the Zoroastrian religion. The PMDA governs the solemnization and obligatory condition of marriages between Parsis only. Section 3(1) (c) prescribes the age for marriage (21 years for the boy and 18 years for the girl). Section 3 lays down the sacramental aspect by including the performance of a religious ceremony called Ashirvad (blessing, prayer) by the priest in the presence of two witnesses as an essential requisite for marriage. The law further states that every Parsi marriage and divorce is required to be registered according to the procedure prescribed in the Act, though non-fulfilment of these requirements does not make the marriage invalid (Section 6, 10). The Parsi marriage has a semblance of both sacramental and contractual aspect. The Act provides only for monogamy and to follows the policy of monogamous marriage. Section 5 of the Act declares bigamy a punishable offence under Section 494 and Section 495 of the IPC. The Act prescribes grounds for seeking a divorce. The Parsi law is egalitarian and gives equal treatment in terms of rights and remedies to both the sexes. The Jew’s matrimonial laws in India are un-codified, and they continue to be governed by their religious laws. Marriage is not a civil contract, but a relation between two person involving very sacred duties. Marriages are monogamous. Lastly, the Special Marriage Act, 1954 (hereinafter SMA) provides for an unceremonious and non-religious marriage. It is a registered marriage among both inter-caste and intra-caste parties and is not based on the concept of it being a permanent union.

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A brief survey of the marital laws of different communities brings forth that they are religious in nature and premised on age-old traditional beliefs. Marriage is considered to be a sacred union for Hindus and a sacramental contract for Christians, Parsi, Jews but more of a contract for Muslims. Though both Christian and Muslim marriage is civil contracts, Christian marriage is different from a Muslim marriage as it is a monogamous institution for both husband and wife.42 Islam and Hinduism support the idea that marriage is a religious duty. In recent times, each of these matrimonial laws has introduced wide and sweeping changes through modern legal provisions. Now with the recognition of the various divorce grounds, the notion of permanency and indissolubility of marriage is largely diluted. The modern codified personal laws of each community in India provide for divorce on certain conditions and grounds, thus breaking the myth of ‘Until Death Do Us Part’. At the same time, it is worth mentioning that these personal laws give a secondary, subordinate, or inferior position to women with limited choices to opt-out of bad and abusive marriage at their free will and choice. Under the institution of marriage, the personal laws subject women to all kinds of inequality, indignity, and unfairness.43 Constitution of India aims to prevent these adverse and discriminatory practices against women by guaranteeing equality of status under Articles 14, 15(2), and (3) and 16. Despite these constitutional directives for sex equality, women face neglect under personal laws. They must be declared unconstitutional but remains untouched and sanctified as the right to freedom of religion under Article 25 of the Constitution of India.44 These personal laws are derived not from the Constitution but the religious scriptures, conferring inferior status to women is anathema to their right to equality.45

2.1.2 Changing Concept of Marriage It is a well-known fact that the only thing that is constant in this world is change itself. Change is the universal and most basic nature of every society. A social change is a continuous process that involves the change in the structure and functioning of a particular social system and its traditional customs.46 It implies variation, modification in any social process or pattern, or interaction within a social organization and structure.47 Law is an important component of social changes that bring and gives the right direction to the changes. If we look at Indian society, it is also undergoing incredible changes, especially in the areas of marriage and the rights of women. Hindu marriages premised on Vedic text, scriptures, and other religious texts are confronted by Western culture and values. The traditional concept of marriage is 42 Hyde

v. Hyde (1866) L I P & D 130. Krishnan v. State of Bihar (1956) 5 SCC 148. 44 Narsingh Pratap Deo v. State of Orissa, AIR 1964 SC 1793. 45 Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996) 8 SCC 525. 46 Kuppuswamy (1979, p. 43). 47 Davis (1960, p. 622). 43 Madhu

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revolutionized due to tremendous change in the general understanding of the notion and attached values of marriage which is now viewed differently from its previous perceptive. There is a shift from the old concept to marriage being a pursuit for seeking perfection, completeness, harmony, happiness, and contentment in life with its physical, mental, intellectual, and spiritual dimensions. Modern marriage is an arrangement of lasting friendship, partnership, mutual complementarities, affection, support, caring, and sharing between two adult equal partners of different sex.48 The marriage laws of Hindus, the majority community in India has witnessed various radical changes. Marriage is no longer based on the concept of Dharma or is essential for the performance of religious and spiritual duties. It is now viewed as a form of companionship. The stability of Hindu marriage is under stress. It is no longer an indissoluble, permanent, and eternal union as divorce grounds are recognized under the codified laws. Divorces that were once unimaginable and non-existent are replaced by various divorce provisions under the Hindu personal laws.49 However, as per Act, it must be preceded with a sincere effort to prevent any marriage dissolution. Provisions under HMA such as Section 14 (no petition can be presented for divorce within one year of marriage), restitution of conjugal rights under Section 9, and judicial separation under Section 10 and Section 23 (Decree in Proceedings) aim to protect every Hindu marriage. At the time of solemnization of a marriage, the reformed Hindu laws do not stress on the performance of the detailed nuptial ceremonies except as provided under Section 5 and Section 7 of HMA. The practice of marrying a young girl under the pretext of safeguarding family pride, her chastity, and purity are confronted by the codified Hindu laws. It prescribes a minimum age of marriage for both the sexes (18 years for the girl and 21 years for the boy) making the flouting of these clauses an offence. The different ages of marriage prescribed for boys and girls show the discriminatory highlights of the law. Even though Child marriages are considered illegal under the Child Marriage Restraint Act 1929 (hereinafter CMR), bit under HMA they remain legally valid. So, the traditional notion of marriage is influenced by Western culture and modern education and has undergone considerable changes.50 Getting married and begetting a son is now no longer mandatory. Hindu marriages are no longer guided by religious texts, and various relations like marriage are recognized through precedents (homosexual and live-in relationships); widows can remarry. Despite all these far-reaching changes, Hindu marriage continues to be a sacrament and based on traditional values; for example, as per Section 7 of HMA, religious rites like Saptapadi (taking seven steps before the sacred fire) are essential for the solemnization of a Hindu marriage. As stated, there are only two codified laws in India that pertain to Muslim marriage and divorce (DMMA and MWPRD). There are not many changes introduced in the 48 Aboobackar

C.K. v. Rahiyanath and Another 2008(3) KLT 482.

49 Hindu Marriage Act, 1955-Section 11 (nullity); Section 13 (grounds of divorce); 13(1) and 13(1-

A) (Grounds of Divorce); 13(2) (Wife’s special grounds for Divorce); 13A (Alternate Relief in Divorce Proceedings) and 13B (Divorce by mutual consent). 50 Ramachandrappa (2012, pp. 7–8).

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Muslim Personal Laws. It still functions on the outmoded principles of Sharia law with the continued superiority of men. Hasty divorces and polygamy continue in practice making women vulnerable. Talaq or divorce under Muslim law means release from a marriage tie. Islam considers it as reprehensible and Prophet denounced it, but unilateral divorce continues to be an accepted practice. A Muslim husband can pronounce Talaq three times, without any cause, or assigning of any reason and even without recourse to the Court. Even the divorces pronounced in haste, under intoxication or involuntarily will be regarded as effective, binding, and irrecoverable. Later on, if the parties wish to remarry, the wife has to undergo the Halala under which the divorced wife should marry another person and such marriage must be consummated. It is only after divorce from her second husband that she can remarry her first husband. The provision for Halala made to protect women against hasty divorces is a form of grave injustice towards her dignity. After the codification of the above Acts, to some extents, the condition of Muslim women has become better. The DMMA allows a Muslim wife to ask for a divorce on restricted grounds. She can repudiate her marriage under the classic mode of divorce (Khula, Faskh) or seek unilateral divorce under Section 2 (i-ix) of the DMMA on establishing certain conditions. Recently, the Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed on 31 July 2019 that declared the practice of Triple Talaq as illegal, unconstitutional, and made it a punishable act. Christianity regarded marriage as an indissoluble union (the Protestants considered marriage as a dissoluble union). On the other hand, after the Roman Church became the supreme eclectic authority governing matrimonial matters, the ecclesiastic Courts recognized the right to separation.51 Comparatively the Christian laws are quite reformed except regarding divorce. In modern times, IDA provides divorce on the grounds of desertion, insanity, and cruelty. The law was originally discriminatory and prescribed that the husband can seek dissolution of marriage from his wife on grounds of her adultery. As against it, the wife ought to prove two matrimonial offences, i.e. adultery aggravated with some other offence such as bigamy, cruelty, etc., thus discriminating against women (Section 10).52 But, in 2001, the IDA was amended to do away with this discrimination. Now, women have the right to divorce on a single count of adultery or cruelty and some additional grounds for divorce, Viz. rape, sodomy, and bestiality. These additional grounds granted to a woman for claiming divorce were challenged as discriminatory towards men.53 But, upholding them the Court held that women require special protection and thus the grounds are valid. The PMDA is also quite comprehensive and modern in its approach. Section 5 of this Act prohibits bigamy and declares it a punishable offence under Section 494 and Section 495 of the IPC. Also, the SMA provides uniform laws for Indian citizens to marry with minimal formalities. This egalitarian law permits marriage between people belonging to different castes. Even though such inter-caste marriage might 51 Molly

Joseph alias Nish v. George Sebastian alias Joy (1996) 6 SCC 337. Kumar v. Union of India and Anr. (1994) 5 SCC 704. 53 Anil Kumar Mhasi v. Union of India (1994) 5 SCC 704. 52 Anil

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not be socially encouraged, there is no restriction on the performance of the same. Young people now marry late when they are financially independent and stable. Today, there is increasing stress by the parents and the society on educating their children. The young and educated people are utilizing their wisdom and discretion in matters concerning marriage. Apart from the above shifts in marriage concept, the pre-marital sex relationships, extra-marital sexes, and homosexual relationships are an affront to the institutional nature of traditional marriages. A variety of family and marital relationships and nonnormative intimate relationships exists that can be bigamous, adulterous, or homogenous relationships and represent the changing face of the concept of marriage. Such relationships are often discouraged by society at large; yet, with the continued efforts of various groups that work towards ensuring life with dignity, some of these relationships and their related pecularities are now granted legal protection. For example, the Supreme Court of India (hereinafter SC) has now decriminalized homosexuality and efforts are directed towards getting the right to marry for homosexual couples.54 While interpreting the term ‘wife’, the Court has extended the right to maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter CrPC) to live-in female partners to ensure social justice and uphold their dignity. The live-in relationships are validated by raising the presumption of marriage in favour of the parties who stay together for a long period.55 Even if no valid marriage is solemnized as per law, this presumption can only be rebutted by persuasive pieces of evidence.56 When partners lived together for a long spell as husband and wife, a presumption would arise in favour of valid wedlock.57 The property of a Hindu male will devolve on the woman who was in a live-in relationship with him.58 Raising the presumption of marriage, the live-in relationship for a long time is comparable to a valid marital relationship and the children born out of this relationship will be regarded as legitimate children who will be entitled to property rights excluding ‘Coparcenary’ property.59 Thus, with the reformed enactments about marriage and divorce, the changing concept of marriage in India is evident. Divorce which is a legal cessation of the matrimonial bond is defying the permanency of marriage. The enactment of divorce laws by religious communities has opened the gates for ending an unhappy marriage. Increased interventions by lawmakers have reformed the traditional norms to make them more egalitarian.

54 See

Naz Foundation v.Government of NCT of Delhi and Others (2009); National Legal Services Authority (NALSA) v. Union of India & Ors (2014): Navtej Singh Johar v. Union of India (2018); Shakti Vahini v. Union of India and others (2018). 55 D Veluswamy v. D Patchaiamma (2010) 10 SCC 469. 56 Tulsa v. Durghatiya (2008) 4 SCC 520. 57 Chanmuniya v. Chanmuniya Virendra Kumar Singh Kushwaha and Anr (2011) 1SCC141. 58 Revanasiddappa v. Mallikarjun (2011) 11 SCC1. 59 Madan Mohan Singh & Ors v. Rajni Kant & Anr., AIR 2010 SC 2933.

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2.1.3 Higher Incidence of Matrimonial Disputes In every society, irrespective of its geographic, ethnic, or religious origin, conflicts among humans are intrinsic. The Webster’s dictionary defines conflict as, clash, competition, or mutual interference of opposing or incompatible forces or qualities. It is difficult to imagine a human society without conflict of interests.60 Matrimonial conflicts hurt relationships and feelings that could be due to several reasons and can have several reactions. It can be of fight or avoidance, but the effects are frequently harmful and destructive.61 The new strains and changing lifestyles have thrown new trials for young people who are reeling under instability. They have changed attitudes regarding the roles of husband and wife. The fast life has made them individualistic, materialistic, and self-oriented. Married couples prefer self over family resulting in a lack of harmony.62 A matrimonial dispute can arise due to problems like finances, social, cultural, sexual, parental, and in-law difficulties.63 Most often, it is a multifaceted combination. It usually arises when the communication breaks and feelings are hurt, leading to misunderstanding and bitterness.64 Impulsive marriage and the growing independence of women are other reasons behind this growing trend.65 Young couples prefer to break such marriages. Therefore, there is a sharp increase in the number of cases filed in the Courts. The increasing divorce rates point at decreasing influence of the family, marital tensions, and their psychoneurotic and psychosomatic ramifications.66 To survey the divorce rates in India, available statistics and several studies conducted to gauge its pervasiveness are scrutinized. A study conducted on the working of the Family Courts in India indicates that the divorce rates are high. The divorce by mutual consent, within a year of marriage, has risen by 30% since 2000 with temperamental and sexual incompatibilities accounting for 75% of young divorces.67 In yet another study, in Mumbai, 2055 divorce petitions were filed in 1995 as against 3400 in 2004; for Delhi, an average of 25 divorce petitions was filed every day in 2004. There was a step increase in the number of divorce cases filed in Bangalore with 653 in 1988 to 1861 in 2002; similarly, in the case of Kolkata, it was

60 Singh

(2009, p. 508). (1997, p. 10). 62 Jamwal (2009, p. 84). 63 Mudd et al. (1958, p. 59). 64 Rutledge in Ard Ben and Ard Constance (1968, p. 5). 65 Available at: https://www.hindustantimes.com/sex-and-relationships/how-and-why-numberof-young-indian-couples-getting-divorced-has-risen-sharply/story-mEuaEoviW40d6slLZbGu6J. html (Accessed on March 02, 2020). 66 Wadhwa in Sehgal and Sherjung (1997, p. 2). 67 New lifestyles, attitudes pushing young divorces but new beginning. Available at: https://www. indiatoday.in/magazine/cover-story/story/20050228-new-lifestyles-attitudes-pushing-young-div orces-but-new-beginning-788155-2005-02-28 (Accessed May 07, 2020). 61 Parkinson

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1633 in 1966 that increased to 2388 in 2003. It was found that around 70% of these divorces were filed by the people representing the 25–35 age group.68 A decade back in Delhi, the capital of India, there was only one Court of an Additional District Judge dealing with about 10 to 15 matrimonial cases every day, but now a good number of matrimonial Courts are dealing with thousands of such cases. This number is apart from the cases which are filed for maintenance.69 A 2016 Report by Vidhi Centre for Legal Policy on the mediation regime in India revealed that approximately 41,503 cases out of a total of 46,000 cases of court-annexed mediation were family disputes (the report collects this data from the Mumbai High Court and SC). Over five years (2011–2015), more than 25,000 family law cases were referred by different Courts across India for the mediation process. This was almost 80% of the total cases referred to mediation in the said time frame. The references included cases under the Dowry Prohibition Act, 1961 (hereinafter DPA), maintenance application cases under Section 125 of CrPC, the Protection of Women from Domestic Violence Act, 2005 (hereinafter PWDV), the Guardians and the Wards Act, 1890 (hereinafter GWA), and other divorce matters. In the Indian scenario, the divorce rates are increasing, especially in metropolitan areas like Delhi, Mumbai, and Bangalore where it is more than 30%.70 One more study on divorce rates in Haryana (Gurugram) revealed that around 25 cases are filed in Court every month out of which 10 are divorce petitions. Among these petitions, 70% of divorce petitions are filed by husbands and two divorces are granted every month.71 Divorce pleas are constantly rising from 3122 in 2019 (an increase of 174 cases from the previous year). It was 2948 in 2018 and 2576 in 2017. On average, 10 divorce-related cases are filed everyday in the Kerala (Kochi) Family Court for separation, guardianship of children, and return of property.72 Yet another study shows an increase in divorce cases; for example, in Kolkata, it increased by 350% between 2003 and 2011, and in Mumbai, between 2010 and 2014, it just doubled.73 An additional report on divorce rates examined data between the year 2001 and 2011 suggests that around 1.36 million people are divorced in India equivalent to 0.24% of the married population and 0.11% of the total population.74 Noticeably, the number of people separated is almost three times the number of people divorced (0.61% of the married population and 0.29% of the total population).75 More women 68 India

Today (February 28, 2005, p. 12). in Sehgal and Sherjung (1997, p. 2). 70 Kumar (2015, pp. 48–60). 71 Hindustan Times (March 22, 2013, p. 4) Made in Heaven, Broken on Whims. 72 Available at: Toby Antony https://www.newindianexpress.com/cities/kochi/2020/jan/28/divorcepleas-hit-a-record-3122-in-2019-2095352.html (Accessed on August 30, 2020). 73 Not So Happily-Ever-After, Yet India has a Low Divorce Rate. Available at: https://www.the quint.com/news/india/not-so-happily-ever-after-yet-india-has-a-low-divorce-rate (Accessed on Jan 05, 2020). 74 Jacob and Chattopadhyay (2016, pp. 25–27). 75 What Divorce and Separation tell us about Modern India. Available at: https://www.bbc.com/ news/world-asia-india-37481054 (Accessed on Jan 12, 2020). 69 Wadhwa

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are divorced and separated than men, as the stigma associated with divorce, patriarchy, and gender biases stop women from seeking a divorce and remarrying. Women are probably staying divorced or unable to find suitable partners for remarriage. The slow Court procedures, expenses, and too much time taken for resolving disputes are de-motivating women.76 The bleak chances of women’s remarriage and later acceptance by society is also a reason behind marital stability. Remarriages are not prohibited for both sexes but gendered in practice. Society has hardly any issues with the remarriage of men but will be a subject of discussion and discomfort in the case of women. Social pressure and socio-economic, cultural, and political structure also constrain women. Disempowered Indian women who have deep patriarchy ingrained in their psyche due to incessant socialization perceive divorce a taboo. They refrain from seeking a divorce, especially women in rural areas. They may merely start living separately without getting a legal divorce and invariable anxious due to pressure from their family to reconcile the dispute, especially when children are involved. Only 1.1% of women are legally divorced, with those in urban areas making up the largest proportion in India.77 Despite an increase in the number of divorce cases being filed in various Courts, globally, it is still the lowest in the world. The OECD in 2017 reported that India’s divorce rate stood at one percent or 13 in 1000 marriages which in the United Kingdom (hereinafter the UK) are 500 in 1000 marriages. As per the reports by an Australian legal agency called Unified Lawyers, the Indian divorce rates are the lowest in the world.78 The statistics on the lowest rate of divorces in India forces one to believe in the concept of ‘happily ever after’; however, it is a myth. Some reasons are responsible and rationalize these lowest divorce rates. One of the major reasons behind this scenario is the age-old tradition of arranged marriage that is planned by parents and family members. While considering a match, various factors are regarded for compatibility and these marriages are believed to be for life. Also, our society embedded in traditional value system advice parties to stay in a marriage and refrain from seeking a divorce. Indian women are less empowered and do not have a voice in the majority of subjects concerning them. They are socialized to choose family honour and pride over self-happiness. A long and costly legal process petrifies them. Morality is given supremacy over legality. The religious connotation

76 What

Divorce and Separation tell us about Modern India? Available at: https://www.bbc.com/ news/world-asia-india-37481054 (Accessed on Jan 19, 2020). 77 United Nations, Progress of the World’s Women 2019–2020: Families in a Changing World. Available at: https://www.unwomen.org/en/digital-library/progress-of-the-worlds-women (Accessed on February 03, 2020). 78 Luxembourg has the highest at 87%. Organisation for Economic Co-operation and Development, an international forum established in 1961 that works in public policy: Low divorce rate is unfortunate. Available at: https://www.newindianexpress.com/opinions/2019/feb/07/low-divorcerate-is-unfortunate-1935433.htmlthe (Accessed on February 10, 2020).

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of marriage believed to last for seven lifetimes hold them back. The possibility of women being exploited under such marriage is high.79 However, socio-economic advances, legal reforms, and globalization have changed these traditional social institutions, especially in urban areas. Young people are exposed to more economic and relationship options, which may prompt them to break out of unsatisfactory or unequal marriages. Marriage is no longer a purely holy and indissoluble union but a personal affair based on volition. Thus, there is a spurt in the number of divorce cases filed in the Courts. The divorces have almost doubled with most of the cases filed by young couples. The modern, independent, and progressive youth with its increased sense of self and awareness about their rights is leading to this upward trend. Due to education and consciousness about one’s rights, social reforms, and increased occupational opportunities, the idea of modern marriage has altered to a greater extent.

2.2 Reason Behind the Genesis of Matrimonial Disputes The reasons behind matrimonial disputes can be personal including physical (physique and health) and non-physical (mental personality, psychosocial vices), social (interaction with the primary group family), socio-economic (financial difficulties and living conditions), and others like sexual problems, lack of communication, incompatibility, conversion, renouncing the world.80 Economic reasons, emotional maladjustments, expectations, psychiatric disorders like depression, schizophrenia, lack of proper living accommodation, dowry aggravate the family tension.81 The personality and behaviour patterns of the marital pair, irrational approach to marriage, fraud, and misrepresentation at the time of marriage, extra-marital relations, constant marital discords and differences over trivial matters, lack of love, respect and warmth in the family environment and consequential need to sense of security in either of the spouses, escapism through intoxication and drug addiction are some of the illustrative and apparent causes of family tensions and discord.82 Thus, a variety of factors can be responsible for the origin of conflict. Some of the top-most reasons which are primarily accountable for predisposing to maladjustments in marriage and giving rise to conflicts are discussed in this section.

79 Available

at: https://www.dailyo.in/variety/india-has-the-lowest-divorce-rate-in-the-world-5-rea sons-why-its-not-a-good-thing/story/1/29213.html (Accessed on March 05, 2020). 80 Fonesca (1966, p. 64). 81 Mathur in Sehgal and Sherjung (1997, p. 40). 82 Kapoor in Sehgal and Sherjung (1997, p. 114).

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2.2.1 Industrialization, Urbanization, and Westernization Industrialization and urbanization go together and influence each other. Both have affected social structure and social institutions. Socio-cultural changes in society affect intra-family relations as well. Rapid industrialization has resulted in the mass movement of people from rural to urban cities in search of livelihood and urbanization. Rapid industrialization has given rise to various types of families and kinships that has affected the stability of the traditional joint family system and changed its structure and function. Cities and urban populations are steadily growing in size and number. As of 2018, the total urban population in India is 34% which was just 12% in 1931.83 The urban city life is more favourable to small nuclear families than too big joint families. Urbanization has also weakened the joint family pattern and strengthened nuclear families. The lifestyle offered by big urban cities makes one think as an individual rather than as being a part of a family unit. Individuals become more conscious of their interests and aspirations.84 Big cities offer employment opportunities to young adults whose dependence upon the family decreases and the authority of the head of the family diminishes. Fast pace life and modern values emphasize self over family well-being resulting in disharmony among married couples.85 The impact of Western culture and its social systems is so strong that it has not only broadened the outlook of people and their demand for their rights and freedom but has introduced a new set of values and disregard of traditional beliefs and practices.86 Modern families are adopting and bearing the brunt of westernization. Its new set of westernized culture and values have changed societies, their culture, social systems, and attitude towards marriage and divorce.87 Westernization has prominently initiated reform movements that are testing the traditional beliefs and practices and broadening the outlook of people in general making them vocal about their rights and freedom. They are instrumental in developing idiosyncratic ideologies with emphasis on equality and justice, thereby changing social institutions of marriage and family.88 The process of industrialization has also opened up more opportunities for women. Cities provide increasing opportunities for education and occupation to young adults, especially women who are now becoming more and more conscious of their rights 83 Annexure: Demographic Trends, Progress of the World’s Women Report 2019–2020: Families in a Changing World available at progress.unwomen.org. Available at: https://www.unwomen.org/ en/digital-library/progress-of-the-worlds-women (Accessed on April 17, 2020). 84 Uberoi (2006, p. 452). 85 Jamwal (2009, p. 84). 86 Ramachandrappa (2012, pp. 6–9). 87 Ramachandrappa (2012, pp. 7–8). 88 Uberoi (2006, p. 477).

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and interests.89 Women’s employment provides them has given them financial independence, thereby empowering and improving their position in society.90 Women’s economic empowerment has fundamentally changed their roles and their differentiation between the sexes in a family. These empowered women no longer tolerate the cultural norms that suffocate them or put them in a position of subordination. Once economically independent, women challenge stereotypes and the submissive roles assigned to them. Though financial independence raises the status of women, they hardly get sufficient support to juggle between work and home front giving rise to increased dissatisfaction and a sense of being exploited in this entire setup. In a nuclear family, there are no safety valves to release this built-up tension and the outburst can negatively impact marital life with no one to mediate or counsel the parties. The changing dynamics in society heralded by these three have placed new challenges for Indian families and marriages. With recent trends of increase in age of marriage due to education, economic independence, and emancipation of women, divorce is a necessary effect. The stressful, demanding urban lifestyle has reduced the tolerance level of parties predisposing parties to matrimonial disputes.91

2.2.2 Nuclear Versus Joint Family: Changing Patterns of Family A family is an essential unit of society and a durable institution. It includes a set of people who are related to each other by blood, marriage, or adoption with basic societal functions of reproduction for the survival of the society. Besides, it satisfies the individuals need, protecting and socialization of the young, handling conflicts, and emotional crises.92 Families are facing many challenges in the fast-changing life pattern in every sphere of life. Modern families are facing an onslaught from various quarters. Indian youth is also juggling two value systems, i.e. the value system we inherited and the changes introduced by the Western culture.93 Crumbling of the joint family system, the spread of education, economic freedom, and movement towards total liberation of women have thrown society in ferment. Indian society and Indian families are wavering between traditional and Western models.94 Family is the most important primary group in society that has distinctive characteristics found everywhere, even though there may be considerable cultural variations in their forms and expressions.95 If we compare the joint and nuclear families, both have their own set of positive and negatives. In terms of matrimonial disputes, the 89 Uberoi

(2006, p. 452). in Vir and Mahajan (1996, p. 165). 91 Ramachandrappa et al. (2016, pp. 15–24). 92 Luthra (1996, pp. 10–11). 93 Hindustan Times (August 7, 2013, p. 7) Old Wine in a New Bottle, New Delhi. 94 Manzumdar in Sehgal and Sherjung (1997, p. 12). 95 Manzumdar in Sehgal and Sherjung (1997, p. 9). 90 Mahajan

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family transition from joint to nuclear family affects the family dynamics. The family does not merely mean a set of people living together under one roof but a place that provides an environment of love, peace, fulfillment, and growth. Differences, provocations, or quarrels on minor matters among the members of the family are bound to happen.96 A nuclear family consists of husband–wife and children as against a joint family that comprises of a nuclear family, at least one parent or grandparents and at least one related even married person of the same generation as that of husband or wife.97 The nuclear family is more centred towards the love for one’s children, affective bonds between husband and wife, and weekend bonds with collateral relatives.98 A joint family provides social, economic, and emotional security at the time of need to their members and is a symbol of unity and solidarity.99 The senior members act like safety valves whose presence has a calming effect on the parties, and they can offer their positive intervention through counselling and mediation to reduce disputes. Despite the fact at times joint family can be the reason for divorce. Though joint families bind everyone and are believed to provide a deep sense of solidarity and social security to its members, but suffered from limitations in terms of nepotism and other abuses that accounts for its unpopularity and fast disappearance.100 The conventional families run under the definite ideas concerning the husband–wife relationship that modern young people often do not implicitly follow.101 Women from nuclear families find it difficult to adjust in the joint families.102 In this form of families, women are expected to do multitasking in tune with the established traditional norms. Modern educated women do not always conform to these.103 Further, they might not get the desired support due to lack of space and poor communication. Interaction between husband and wife becomes less, misunderstanding develops and the flare-up of temper becomes the starting point of continued marital discord.104 In such an arrangement, the human rights of women are violated and gender inequalities persist. With all the profound changes in patterns of family formation, dissolution, and reconstitution, more and more joint families are giving way to nuclear families.105 Thus, unlike the older joint family that provides its members with emotional and material support, the nuclear family environment of urban areas with busy and professionally engaged parents do not provide enough time for its members to relate to each other.106 The elders in a joint family are respected, and they guide 96 Sehgal

in Sehgal and Sherjung (1997, p. 5). and Reddy (1996, pp. 116–117). 98 Singh in Vir and Mahajan (1996, p. 4). 99 Caldwell and Reddy (1996, pp. 116–117). 100 Murthy (2006, p. 102). 101 Fonesca (1966, p. 19). 102 Kumari (2016, p. 238). 103 Vasudevan et al. (2015, pp. 3418–3426). 104 Mathur in Sehgal and Sherjung (1997, p. 39). 105 Uberoi (2006, p. 477). 106 Manzumdar in Sehgal and Sherjung (1997, p. 13). 97 Caldwell

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the younger members in every important family matters. The joint family provides support and counselling to its members for resolving their day-to-day disputes. With their continued intervention and mediation, the young couple tends to adjust to changes. However, this may not be true now, especially when women are becoming assertive about their rights. Thus, divorces are not an individual call and precede mediation from the senior members. The modern hasty divorces are a direct result of the diminished joint family system. Nuclear families and the lack of intervention by the elders have also led to instability of modern marriage as minor temperamental differences escalate into full-blown divorces. Long working hours snatches away the time which the family would otherwise spend together adversely affecting the family life.107 The above reasons have increased instability of relationships leading to higher levels of separation, divorce. The change in family type has brought about changes in the sexual division of labour.108 These rapid shifts in household composition and family behaviour, driven by economic events, social transformations, and cultural shifts, have altered the nature and complexity of disputes coming before the Court. Urbanization furthers these changing dynamics by weakening the joint family system, and because there are no elders to mediate the dispute, marital discord is increasing.

2.2.3 Role Reversal: Social Change and Equality of Sexes Social changes affect the established patterns of social relations, social values, structures, and subsystems operating in society. Some of the indicators of social development are: change in the level of living, expansion in education, social justice, reducing disparities.109 The traditional Indian families were the originator of many problems. They followed certain set patterns that were suitable for previous times but not workable for the modern and urbanized societies and their functioning. During ancient times, there was a strong societal shift towards patriarchy. The present-day role expectations from both husband and wife are reflective of the past society that has traditionally fixed their roles. These traditional expectations are one of the main reasons behind the malice in modern marriages.110 Women think that they have fewer rights and suffer deprivation in silence. Social movements, especially after independence, have ignited protest against male domination and humiliation of women and led to the proliferation of divorce movements.111 Women in India are now beginning to develop new understanding and awareness, and they do not accept traditional injustice. Recognition of new forms of rights 107 Sehgal

in Sehgal and Sherjung (1997, p. 6). (1972, p. 119). 109 Uberoi (2006, pp. 436–438). 110 Fonesca (1966, p. 8). 111 Uberoi (2006, p. 453). 108 Engels

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for women and the drafting of new legislation about women’s rights has led to farreaching effects. They have revolutionized and resulted in radical changes in the functioning of society.112 Marriage stability is also affected by the changed social-cultural milieu and marriage system. Provisions for separation and divorce have altered the quantity and quality of matrimonial disputes. Women’s role is re-orientated, and their aspiration and outlook have changed their idea about marriage and family.113 Greater participation of women in the labour force, increasing incompatibility of gender roles with the status of women, individual autonomy, independence, economic potential, social status, and wider social changes have affected the gender roles dynamics and marital stability in India.114 Western115 education and ideas have broadened women’s horizon and transformed their attitudes, beliefs, value system, and ideology. They are developing individualistic feelings and modifying their philosophy of life with more voice in family matters and less acceptance of others’ authority over them.116 As stated before, the economic independence of women radically changes the stereotypes of a woman being a submissive one. Women’s employment has become an important element in women’s development.117 Earlier, women are dependent on their husbands for all forms of support. Their role was to bear children, to take their good care, and keep everyone happy. It is all changing motivating women to keep their subjective preferences above the discriminatory social norms and traditional roles. They are choosing a life of their own choice, preferring new forms of relationship and cohabitation, and opting out of an unhappy marriage. Thus, the economic independence of women can change the family dynamics that lead to the problem of non-adjustment and ultimately in the filing of divorce petitions to end the discriminatory and incompatible marriage.118

2.2.4 Modernization and Dilution of Social Stigma Attached to Divorce Modernization involves a series of changes in personality, culture, societal systems, and various institutional areas such as family, polity, economy, education.119 It refers to a new social, economic, political, religious, and intellectual system that is different

112 Fonesca

(1966, p. 9). (1966, p. 7). 114 Matysiak et al. (2014, pp. 197–215). 115 Ramachandrappa (2012, pp. 7–8). 116 Ahuja (1998, p. 287). 117 Kumari (2016, p. 237). 118 Saraswathy (2016, pp. 63–65). 119 Gupta in Vir and Mahajan (1996, p. 25). 113 Fonesca

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from the traditional system.120 Modern society has spread literacy, expanded communication through media, and developed a new cultural outlook that is characterized by an emphasis on happiness, abilities, individual dignity, and efficiency.121 Models of modernization and modernity have been forces of changes in the family.122 In India, modernization after independence has been directed towards the reconstruction of institutions to enable them to deal with and assimilate changes. It has initiated and given impetus to economic progress and counteracted inequalities of the traditional system of social stratification.123 Modernization promotes equality through several enacted legislation that confronts the traditional norms. As a consequence of modernization, there is an increased dilution of the stigma attached to divorce, though still not comparable to Western countries. In this regard, media is proving to be a powerful medium that is changing the outlook of the young susceptible minds that accept and adopt what is shown by it. It has serious implications for families and society at large.124 There is a decline in the patriarchal family system. Also, with the spread of education, economic freedom, and movement towards the total liberation of women, family disputes are growing. The media is creating awareness about laws protecting women’s rights and new laws enacted to safeguard and protect them against social discrimination. Its influence is visible in the opinion formation to almost every field of human activity.125 To an extent, the social transformation brought about by the media has diminished the taboos attached to divorce. There is an increased acceptance of a divorced person in society now. They are no longer demeaned and judged with the stereotyped notions. These changes have impacted the attitudes and values of the women, especially of those struck in an unhappy marriage. Cumulatively, education, financial independence, and seeking equality have changed women’s mind-set, ideals, and outlook.126

2.2.5 Other Reasons Therefore, society is evolving. It is a witness to the phenomena of industrialization, urbanization, westernization, and modernization. Some of the noticeable incidents of these changes are low levels of tolerance, poor adjustments, and ego clashes on trivial issues, economic independence, job priorities, and work-related stress. Different values, beliefs, education, socio-economic status, personality traits put strains on the marriage leading to an increase in the number of divorces. There could be numerous areas that give rise to matrimonial conflicts. Ranging from specific 120 Uberoi

(2006, p. 479). (2006, p. 481). 122 Luthra (1996, pp. 15–16). 123 Jain in Vir and Mahajan (1996, p. 1). 124 Mahajan in Vir and Mahajan (1996, p. 126). 125 Mahajan in Vir and Mahajan (1996, p. 126). 126 Ramachandrappa et al. (2016, pp. 20–24). 121 Uberoi

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problem areas could be due to the handling of finances, social, cultural, sexual, parental, in-law difficulties, or it may lie in the relationship itself.127 The personality and behaviour pattern of the couple, irrational approach towards marriage, and lack of sense of security are some of the apparent causes of tensions and marital discords between parties.128 Males, who deny rights to women, are those who face depressions, inferiority complex and low esteem, lack resources, have a personality disorder, have possessive, suspicious, and face stressful situations in their families. Women, who are denied rights most, may be identified as those who have a feeling of helplessness, suffer from an inferiority complex, have a poor self-image, lack social maturity, and are economically dependent. There could be six types of denials of rights: money-oriented, pleasure-oriented, power-oriented, victim-precipitated, stressful family situations, etc.129 Three factors seem to play a major role in prompting a man to use violence against a woman including the perpetrator’s history of abuse as a child (like unhappy upbringing, physical beating by parents, and emotional rejection) and stressful situation in the family.130 The matrimonial dispute and conflicts may be a result of personality types like egoist person, lack of care displayed by one party towards the other, psychological problems, suspicious nature, financial conflicts, and mismatched personalities.131 Psychiatric disorders like depression, schizophrenia aggravate family tension.132 Substance abuse and alcoholism can be a reason for the filing of a divorce petition in Court. Alcoholism affects the marriage, strains the relations between the couple, and affects children’s personality development.133 The children of an alcoholic father may have extreme attitudes about alcohol and the daughter may have severe psychoneurotic problems including conversion reactions.134 It may lead to violence in case the aggressor is intoxicated and is in a wild, excited, belligerent state of mind and unable to comprehend the likely fallout of their actions. Alcoholism and wife-beating in the inebriated state leading to DV and injuries have a strong interconnect.135 All this is destructive to the institution of marriage. Thus, the reasons behind divorce are most often a multifaceted combination.

127 Mudd

et al. (1958, p. 59). in Sehgal and Sherjung (1997, p. 114). 129 Uberoi (2006, p. 133). 130 Uberoi (2006, p. 140). 131 Goel (2005, p. 25). 132 Mathur in Sehgal and Sherjung (1997, p. 40). 133 Vasudevan et al. (2015, pp. 3420–3424). 134 Nash and Jessuer (1964, p. 92). 135 Uberoi (2006, pp. 137–138). 128 Kapoor

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2.3 Peculiarity of Matrimonial Disputes and Unlocking the Potentiality of ADR Since the beginning, lots of sanctity is attached to Indian marriages. Matrimonial conflicts tend to seep into relations and bring out various strong reactions to such conflicts which can be harmful and destructive to a relationship.136 The matrimonial disputes are sensitive and require sensible handling and a different kind of resolution. This section gives a brief survey of the Indian Judiciary and delays inherent in the Indian Judicial system that has led to insurmountable arrears. Further, in a Court case disputants become involved in the process of accusations, blaming each other and asserting their claims. It calls for approaching the disputes, especially matrimonial disputes differently and for their amicable resolution through alternative ways or ADR process.

2.3.1 Indian Judiciary and Access to Justice A dispute is a difference, disagreement, or clash among people. It starts with differences; unresolved differences lead to disagreements, and if left unresolved, it becomes a dispute. An unresolved dispute can become a wider area of conflict which when left unresolved escalates hostility and conflicts.137 The Webster’s dictionary defines conflict as clash, competition, or mutual interference of opposing or incompatible forces or qualities. It is difficult to imagine a human society without a conflict of interest.138 Litigation means a controversy or legal dispute before a Court. The dispute can be legally classified as a civil or criminal dispute. Both of these varieties of litigation are an interruption upon the legally enforceable rights of a person. The Indian legal system is a single unified judicial system that is based on a three-tier pyramidal structure with District Courts at the bottom. Each state has a High Court (hereinafter HC) which has jurisdiction over the entire state. The Supreme Court is the apex Court of the country and the law declared by it is binding on all Courts within the Indian territories (Article 141 of the Constitution of India). The power of judicial review is the most important feature of the Indian judiciary through which it can invalidate laws and executive actions. The aggrieved party can approach these Courts for redressal through the novel mechanism of Public Interest Litigation (hereinafter PIL). The Criminal Justice System aims to curb crimes and bring offenders to justice.139 Specialized tribunals are assisting these traditional Courts. The Panchayat 136 Parkinson

(1997, p. 10). (2011, p. 24). 138 Singh (2009, p. 508). 139 Lakshmanan (2009, pp. 163–164). 137 Panchu

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Courts decide petty civil and criminal disputes at the local level and Lok Adalat assists in disposing of minor cases. ‘Justice’ is one of the most important virtues that the Indian Courts and the Constitution under its Preamble, fundamental rights, and fundamental duties secure for everyone. The horizon of justice is ever-expanding through the interpretation given to it by the judiciary. ‘Access to Justice’ originated in common law and the Magna Carta. In simple words, access to justice implies that people should be able to access Courts for the determination of their rights. It is regarded as an invaluable human right and facet of the right to life by India and many other democracies around the globe.140 Access to justice is mentioned under several international human rights laws. The Universal Declaration of Human Rights, 1948 (hereinafter UDHR) under Article 8 and Article 10 and International Covenant on Civil and Political Rights, 1966 (hereinafter ICCPR) under Article 2(3) and 14(3) recognizes access to justice and remedy as to a facet of human rights. The Human Rights Committee stated that the right to an effective remedy must be provided (GC No. 31, 2004). For access to justice, the Committee mandates the state parties to provide information on steps taken to ensure equal access to legal aid for women, especially in family disputes (GC No. 28, 2000). CEDAW (Article 2 (c) suggests the states provide legal protection to women and their rights on an equal basis and their effective protection against any act of discrimination, through competent national tribunals and other public institutions. For making access to justice a reality, various judicial reforms are undertaken by the judiciary and other institutions imparting justice. The introduction of an adequate and comprehensive legal service programme to protect people against injustice and to secure to them their constitutional and statutory rights were recognized as a necessity.141 Access to justice also implies the right to a fair hearing and the right to be heard. It includes the right to take part in the procedure through which one’s fate will be decided with fairness and justice.142 Four important facets are recognized to constitute the essence of ‘Access to Justice’. First, the state must set up the effective adjudicatory mechanism in the form of Court, tribunal, commission, or authority where one can agitate their grievance and seek adjudication of breach of his right. The mechanism and its procedures must be effective, just, fair, objective, and confirming to the principles of natural justice. Second, the forum or the mechanism must be conveniently accessible in terms of distance. Thirdly, the process of adjudication and administration of justice must be speedy and less time consuming so that nobody is dissuaded from accessing it. Lastly, the process of adjudication must not be expensive to the disputants who are not having sufficient means.143 For achieving these

140 See L. Chandra Kumar v. Union of India (1997) 3 SCC 261; Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81; Imtiyaz Ahmad v. State of Uttar Pradesh (2012) 2 SCC 688; Brij Mohan Lal v. Union of India (2012) 6 SCC 502. 141 Maneka Gandhi v. UOI, AIR 1978 SC 597. 142 Sarat (1986, p. 527). 143 Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509.

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objectives concerted efforts are being made towards access to justice by reducing delays and making the best use of the various ADR techniques.144 Access to justice for women in India seems to be a flawed proposition. People with resources are able to take the legal services of senior counsels by paying hefty fees that is not possible for a poor litigants, especially women. There are varied efforts undertaken by the government in India. Article 14, Article 21, Article 22(1), Article 38, and Article 39A of the Constitution are the relevant provisions behind the legal aid movement. The Legal Services Authorities Act, 1987 is a devoted law on the right to free legal aid and its modalities. National Legal Services Authority (NALSA) created under the Act monitors and oversees the legal aid programmes throughout the country (Section 3). There are other provisions also relating to legal aid like Section 304 of CrPC, Order 33 of CPC. However, unawareness about legal aid and legal rights, lack of resources, high Court fee, unaffordable advocate’s fee, exorbitant cost of litigation, fear of the legal system, and the attitudes are discouraging. All these factors make access to justice difficult and then meaningless to a vast number of litigants. Thus, suitable representation to poor litigants must be provided to those who cannot afford it. Ideally, women right to equality can be achieved when they will be able to assert their rights in a Court of law. For this, we need to ensure women access to legal aid services. Under Article 39A of the Constitution of India, State has to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disability. Section 12 of the LSAA includes women as a category eligible for free legal aid in its list of eligible persons. The true justice means women will be empowered and not discriminated against or excluded and the perpetrator is made responsible for their wrongs. Access to justice implies that women can access Courts and seek justice according to their legal and constitutional entitlements so that women are not left vulnerable and remediless. In reality, non-availability of proper legal advice and guidance and lack of legal aid proves out to be the biggest handicap for women in distress. A woman victim has to go from pillar to post to know the sources of legal aid and to find out an efficient lawyer. Not only illiterate women but even the educated women showed scant knowledge about the legal enactment and legal machinery to seek redress for wrongs committed against them. With the sole desire to earn more and more profits, some advocates further exploit them. They charge an exorbitant fee that financially dependent women are unable to afford. Their cases may linger on for years adding to their woes and expenses. They fear the system and are reluctant to approach the legal machinery due to the stigma attached to the idea of going against the husband, his family and the societal norms.145 The constitution of India guarantees equality 144 Goldberg

et al. (1985, p. 8). (1997, p. 115).

145 Mukherjee

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of sexes, and many women-centric and women favouring laws have been enacted. However, their effective implementation is not satisfactory. Cases concerning DV and crimes against women are on the rise that requires prompt redressal through ways that avoid all these pitfalls of Court cases.

2.3.2 Delays and Reasons Behind Insurmountable Arrears India has magnanimous legal machinery that is involved in the easier said than the done process of adjudication of disputes. Despite a commendable job by the majority of judges, the increasing number of disputes and Court cases are mounting at a fast pace. Spurt in litigation is a positive and encouraging development that is indicative of the success of the judiciary and the Indian legal system. People repose strong faith and confidence in the legal machinery and getting disputes settled through the legal process. However, overwhelming delays in the dispensation of justice are a side-effect of the phenomenon of litigation explosion. Judiciary is facing pendencies with no solutions in sight. Delays are common due to which credibility of the system can be explained by the famous saying “Justice Delayed is Justice Denied” (William E. Gladstone). Reports have repeatedly highlighted the success and failure of the legal system and insurmountable pendencies (Supreme Court Annual Report, 2018). Various areas have been identified in which the judicial system has failed to meet the expectations of society. As per the report by the National Commission to Review the Working of the Constitution (2000), if the legal process filled with uncertainties will continue its slow pace, people will be motivated to seek extra-legal methods for relief. The recent two reports on Subordinate Courts of India: A Report on Access to Justice (2016) and Indian Judiciary Annual Report of 2015–2016, by the SC highlighted that huge pendency is a matter of serious concern and emphasized the need to have to make drastic changes soon. In the case of Imtiyaz Ahmad v. State of Uttar Pradesh,146 the Court pointed at the glaring pendencies in the Indian Courts. The report mentioned in this case affirmed that since the grant of the stay order, around 9% of the cases are more than twenty years old. Roughly, 21% of the case has completed more than ten years. A Charge sheet was found to be the most prominent stage where the case has stayed with almost 32% of the cases falling under this category. The stages of ‘appearance’ and ‘summons’ each comprised 19% of the total number of cases. Besides, the supplementary statistics on pendencies show that more than 3.3 crore cases are pending in various Courts in India. The approximate number of cases pending in subordinate Courts is around 2.84 crore. In the case of different HC, it is 43 lakh,

146 (2012)

2 SCC 688.

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and for SC, 57,987 cases are pending.147 The subordinate Courts account for over 86% pendency of cases, HC for 13.8% SC for 0.2% of cases.148 One more study on pendency evaluated a sample of forty lakh cases pending before various Courts. It found that the average pendency of any case in high Courts is three years and one month, nearly six years in a subordinate Court case, in case appeal goes to at least one higher Court, it is ten years, and if the cases go to the SC, it will be thirteen plus years. Some cases are pending from the 1940s and 1950s. A litigant spends Rs. 519 per day to attend Court proceedings, and Rs. 873 is the loss of productivity of a litigant due to loss of work, time, wages, and business. Rs 30,000 is what a litigant spends in a year just to attend a Court hearing, and Rs 50,387 is the productivity loss that is 0.48% of Indian GDP.149 There are various reasons behind these surmounting pendencies. The number of judges remains inadequate, resulting in a huge amount of unsettled issues pending in various Courts across India. The disputes are increasing, but the number of judges remains low at 12–13 judges per million; India’s judge population ratio remains the lowest in the world. It is 135 to 150 per 10 lakh people in advanced countries. In Canada, it is about 75 per million, and for the USA, it is 104 per million. Poor resource allocation, inadequate number of Courts, poor case management, and nonuse of modern techniques for Court facilities in the Courts are other contributory factors behind Court delays. The Indian litigation system is slow and marred with pendencies, cumbersome procedural formalities, frequent adjournments, appeals, revisions, reviews, constitutional remedies, and other miscellaneous procedures that make the usual litigation processes slow and unending. Civil litigation may go on for a minimum of five years and depending on the severity may linger on for twenty years for its final disposal. Lawyer’s often use delaying tactics by abusing the process of law and making justice a time-consuming process.150 Other reasons like, population growth, increased awareness of rights, increased sensitivity is spiking the arrears. Strikes, indiscriminate closure of Courts, a boycott from work by advocates and other staff members and corruption adds to the miseries of the justice seekers, especially women litigants. The justice delivery system is collapsing under stress and strains from all corners. Thus, a lower rate of Court case disposal is the outcome of several reasons. A paucity of public prosecutors, police personnel, witnesses absence on the date of hearing, delays in service of summons, police laxity, extreme weather conditions and temperatures, and absence of basic infrastructural facilities in many district Courts results in the wastage of productive 147 Available

at https://www.businesstoday.in/current/economy-politics/3-3-crore-cases-pendingindian-Courts-pendency-figure-highest-cji-dipak-misra/story/279664.html l (Accessed on May 12, 2020). 148 Available at: Pendency of cases in the Judiciary. Available at https://www.prsindia.org/policy/ vital-stats/pendency-cases-judiciary (Accessed on May 19, 2020). 149 Available at: https://www.indiatoday.in/magazine/cover-story/story/20160509-judicial-systemjudiciary-cji-law-cases-the-long-expensive-road-to-justice-828810-2016-04-27 (Accessed on July 1, 2020). 150 Tyagi (2015, pp. 1–18).

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judicial time.151 With delays, the litigation process and justice become expensive. People’s faith in the judicial system is beginning to fade as justice that is delayed is forgotten, excluded, and finally discharge.152

2.3.3 Need and Emergence of ADR With globalization and liberalization, the need for the speedy resolution of disputes is ever increasing.153 Emphasis is laid on finding a way of cordial solution of disputes both pre- and post-litigation.154 The need for an alternative process is recognized as an integral part of the judicial reforms and for achieving access to justice’.155 It is an outcome of the persistent efforts put in by the Jurists and those involved in the administration of justice. The exploration of an alternative, complementary, and supplementary method that will be low-cost, speedy, less burdensome, and stressful gave rise to the concept of ADR.156 The ADR does not altogether displace the conventional means of resolving disputes through litigation but only offers alternative options to litigation. In contrast to the Court where one wins or loses all (‘win–lose’), ADR is a much less adversarial technique that endeavours to achieve a ‘win–win’ situation for both parties.157 Various Reports by the Law Commission of India on ADR proposes it as gaining more and more relevance in modern times for better conflict administration. For centuries, every community has practiced different kinds of dispute resolution methods. Historically, the culture of informal dispute resolution is embedded in almost every community and country. Such informal methods were in vogue in many cultures like Scandinavian, African tribes, Israeli Kibbutzim who valued peace and harmony over conflict, litigation, and victory.158 The concept of ADR originated in the USA of America (hereinafter the USA) where traditional Court proceedings were felt to be too slow, costly, rigid, and unpredictable as against ADR like mediation.159 The alternative methods to Court proceedings emerged to affording faster and more cost-effective remedy. The Indian historical dispute resolution process shows records of amicable, informal, and participative resolution processes embedded in the Indian legal system. 151 Imtiyaz

Ahmad v. State of Uttar Pradesh (2012) 2 SCC 688. Hindu (August 16, 2007, p. 6) Backlog of Cases Causing Concern: CJI. 153 Murphy (1993, p. 70). 154 Sinha (2006, p. 31). 155 Special Address by Dr. S. Muralidhar, Part-time Member, Law Commission of India International Conference on ADR, Conciliation, Mediation, and Case Management Organised By the Law Commission of India at New Delhi (May 2003, pp. 3–4). 156 Goldberg et al. (1985, p. 8). 157 Riskin and Westbrook (1987, pp. 2–3). 158 Kovach (2004, p. 29). 159 Treuthart (1993, pp. 717–718). 152 The

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The Hindu Jurists emphasized the significance of arbitration and tribunals. The Vedic period and the Dharma Shastras era saw jurists like Yajnavalkaya and Narada includes resolution of disputes by non-adversarial indigenous methods in their legal discourse. Petty village disputes were settled at the village level by intervention from important people of the community, famously known as ‘Panchayats’ and the ‘Panch’ meaning the village elders. They were using some forms of arbitration, conciliation, and mediation as a mode of conflict resolution that was informal speedy and simple ways of delivering a decision.160 However, the adversarial litigation system of justice destroyed all traces of the rustic dispute mechanisms.161 After independence, the Indian Constitution guaranteed various rights to people, but the poor infrastructure was inefficient to tackle the increasing caseload. Soon, it was realized that a system should be developed that will not be an alternative to the formal judicial system but will supplement it and whose main objective will be to deliver inexpensive and prompt disposal of disputes.162 Several committees report like Rankin Committee (1925), S.R. Das Committee (1949), and the Shah Committee (1972) has examined the issue of pendencies. Law Commission reports have also deliberated about the urgent need to develop ADR that promotes the idea of access to justice. The 77th report by the Law Commission opined that technicalities, rigid rules, and foreign language alienate people from the litigation system inherited from the Britishers. It advised setting up of conciliation boards to timely settle disputes in selected areas. Based on this report, the conciliatory mechanism for resolving matrimonial and family disputes was planned. The 80th report acknowledged an inadequate number of judges as an important reason for growing pendencies. To curb delays in litigation, the 124th report proposed extensive use of computer technology. The 128th report emphasized the reasons behind the increase in the cost of litigation. In its 129th report, the commission for the first time proposed to reduce the huge congestion of litigation by participatory justice dispensation that would reiterate the public faith in the justice delivery system. It suggested the establishment of new institutions analogous to the Gram Panchayats and Nagar Panchayats. Justice Malimath committee (1989–90) known as the ‘Arrears committee’ emphasized the ADR methods. The later reports 129th Report, 221st Report, 222nd Report, and 230th Report by Law Commission of India strongly recommended for popularizing and giving statutory recognition to ADR in India. Thus, through these reports, the Law Commission has critically bought in sharp focus the variety of facets of the mounting problem of arrears of cases and a search for a speedy justice delivery system.

160 Mediation

Training Manual of India, p. 3. (2006, p. 32). 162 Tripathi (2002, p. 260). 161 Nariman

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Box 2.2: Section 89 of the Civil Procedure Code, 1908 89. 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 observation 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. (2) Where a dispute had been referred— (a) for arbitration or 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 subsection (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. This Section was inserted in CPC in 1999 and brought into force with effect from 01 July 2002. The ‘Notes on Clauses’ of the CPC (Amendment) Bill 1999 stated: “Clause 7 provides for the settlement of disputes outside the Court. The provisions of Clause 7 are based on the recommendations made by the Law Commission of India and the Malimath Committee. It was suggested by the Law Commission of India that the Court may require the attendance of any party to the suit or proceedings to appear in person to arrive at an amicable settlement of the dispute between the parties and make an attempt to settle the dispute between the parties amicably. The Malimath Committee recommended making it obligatory for the Court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternate dispute resolution methods that the suit could proceed further. Given the above, clause 7 seeks to insert a new Section 89 in the Code to provide for alternate dispute resolution’.

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ADR is now established and ingrained in the Indian legal system. It offers a range of advantages to both the litigants and the Courts in the administration of justice. The Indian legal system has gradually incorporated many ADR related provisions and amendments under its laws. Based on the recommendations of the 129th Report of the Law Commission of India and Report of the Malimath Committee, the parliament amended the Civil Procedure Code in 1999 (hereinafter CPC). The amendment reintroduced Section 89 and inserted Order 10 Rule 1-A to 1-C that became effective from 1 July 2002. These changes aim to reduce the Court’s burden through speedy and effective methods. The section casts a mandatory duty on the Courts to make an effort towards settling the dispute outside the Court system through ADR before the actual trial begins. For this, the Court shall refer it to any five modes of dispute resolution mentioned in the section. Among these five modes of ADR, arbitration is adjudicatory, binding process and conciliation, mediation, judicial settlement, and Lok Adalat are non-adjudicatory processes. If the dispute is not settled through ADR modes, the Court can take up the matter in the regular course. Afcons Infrastructure Limited and Another v. Cherian Varkey Construction Company Private Limited and Others163 is an important case in which the Court gave an entire list of categories of cases that are suitable and unsuitable for the ADR process. Cases concerning the business, trade, consumer complaints, construction disputes, insurance, technology, marriage and family, criminal, and Constitution law can be dealt with through these processes. Matrimonial disputes, divorces, and legal separation require conciliation and not confrontation. They need effective handling through the approach of giving and take.164 These disputes require therapeutic responses, a multidisciplinary approach to solve and achieve the client’s needs. There are various advantages of having a conciliatory mechanism for the settlement of family and matrimonial disputes. ADR is confidential and sustains the working relationship between the parties, even if they decide not to continue the relationship. Similar observations were made by the Indian Law Commission in its 59th report (1974), while highlighting that when dealing with family disputes, the Court should have an approach radically different to that of an ordinary Court.

2.4 ADR Approach and Benefits for Women Litigants The legal process is allied with terms like conflicts, hostilities, adversarial, adjudicatory against terminologies like advising, supporting, informing, managing, seeking common grounds that would present an altogether different picture.165 In the context of matrimonial disputes, litigation has harsh ramifications. Both the parties hire their respective lawyers for representing them in the lawsuit. The entire litigation 163 (2010)

8 SCC 24. (2002, p. 238). 165 Eekelaar (1995, p. 192). 164 Chaudhary

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process is costly, time-taking, psychologically exhausting, and with no control over the unpredictable outcome.166 During the adversarial process, both the parties level allegations and counter-allegations against each other putting additional strain on the already difficult relationship between parties. The disputes between couples are highly personal, and the legal framework is inept for settling them.167 The rationale of using ADR in matrimonial disputes was highlighted by the Hon’ble SC in the case of G.V. Rao v. L.H.V. Prasad & Ors.,168 wherein it observed that Marriage is a sacred union that enables a couple to settle down in life and live peacefully. But little matrimonial skirmishes that erupt may assume serious proportions that require pondering and terminating disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process, the parties lose their “young” days in chasing their “cases” in different Courts.

The Court has pointed out that there is an outburst of matrimonial cases. The institution of marriage is important, and so, effort must be made in the interest of the individuals involved to enable them to settle down in life and live peacefully. If the parties after reflection wish to terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law, then the Court should excise its extraordinary jurisdiction for doing complete justice.169 India is witnessing growing confidence in the use of ADR methods for resolving a variety of cases. The abovequoted and many more such cases have time and again highlighted the importance of ADR in the context of matrimonial disputes. Various techniques may be used in this conflict resolution process. The important techniques utilized for this purpose include negotiation, mediation, counselling, and reconciliation. A process like mediation which is referred to as assisted negotiation allows the parties to bargain their benefits.170 They follow certain fundamental principles of natural justice sans the lengthy evidence or witness examination process and unlike litigation that is adversarial.171 The ADR practitioner like a mediator may create an atmosphere in which parties can resolve their disputes amicably and creatively with an awareness of the underlying root cause of disharmony and discontent between them.172 The ADR process effectively facilitates communication, separates the people from the problem, and helps them in rising above the deadlock and emotional blockage. The process identifies the real issues and desires of the 166 Neilson

(1989, p. 238). et al. (1985, p. 142). 168 (2000) 3 SCC 693. 169 Sanoop Joshy S/o Joshy Bhaskaran and others v. K. M. Niya D/o Madhusoodanan and others, Cr. MC. No. 4028 of 2013. 170 Christopher W. Moore quoted in ‘Relevance of Mediation to Justice Delivery in India’ (A paper presented by Justice M.M. Kumar, Judge, Punjab and Haryana High Court, Chandigarh, in the National Conference on Mediation, organized by the Mediation and Conciliation Project Committee, Supreme Court of India, New Delhi (July 10, 2010). 171 Sinha (2006, p. 34). 172 Annual Report of Delhi Mediation Centre (2005–2006). 167 Golberg

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parties during negotiation so that they can re-assess available options for resolution, settlement, and safeguarding of relationships.173 As above stated the 59th Report 1974 by the Law Commission of India stressed that disputes concerning family must be dealt with differently and the approach must be unlike the proceeding in ordinary civil proceedings. The Courts should approach matrimonial concerns with sensitivity and attempt reconciliation between parties before polarization has taken place. ADR process is voluntary, and the ADR practitioner simply assists the parties, but the final terms of the agreement are freely determined by them.174 The third neutral and impartial person use appropriate skills and techniques to help the disputing parties to improve their interaction and reach an agreement. Mediators and counsellors help the parties to communicate well. During the process, they ask questions that help parties to reflect, think innovatively, and clearly about their situation and what they want.175 The matrimonial disputes sent for mediation are significantly successful in resuming the matrimonial status or are amicable parting.176 The process of matrimonial mediation avoids long-drawn-out litigation between estranged couples that place an avoidable burden on the legal system. The mediation efforts may not only reunite the couple but several potential civil and criminal proceedings are avoided. In K. Srinivas Rao v. D.A. Deepa,177 the Hon’ble SC observed that: in matrimonial disputes usually both the parties are at fault and before the dispute assumes alarming proportions, parties must be made to see reason at the earliest stage, before complaint making the indecent allegation is filled. The cause of the dispute or misunderstanding will be trivial and can be sorted but for that at the earliest stage i.e. when the dispute is taken up by the Family Courts or by the Court of the first instance for hearing, it must be referred to mediation centers.

Therefore, ADR provides many benefits. Some are tangible, and others are intangible. Some of the most important trait of ADR mechanisms, especially regarding women litigants, need to be analysed for which remarks and personal perception during the Court visits are discussed in this section.

2.4.1 Provides Reliable Setting to Aggrieved Women for Grievance Redressal There are numerous shortcomings in the way adjudication is done by the Courts. The conventional Court procedure and its atmosphere are hostile, harm relationships, and cause emotional stress.178 Court procedures are complex and indeterminable 173 Gupta

(2011, pp. 224–225). (1986, pp. 17–18). 175 Mudd et al. (1958, p. 59). 176 Ajit Ranjan v. State and Others, 2007 (141) DLT 532. 177 AIR 2013 SC 2176. 178 Wissler (2002, p. 664). 174 Moore

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with the least focus on recognizing and dealing with the actual issue implicit in a clash. In an adversarial Court process, the focus of the legal practitioners is chiefly on winning rather than discovering the real cause of dispute.179 A pertinent longlasting solution is not offered to sustain the marriage or will help in making the entire separation process less agonizing, especially for the women. In hostile Court environment parties acquire an extreme mindset. They take positions, get polarized, and thus express their views most emphatically.180 It is difficult for women to open up in this intimidating and unfriendly environment and state their grievances. Hence, these intrinsic issues in the Court process require alternate or special forums and procedures for the resolution and settlement of matrimonial disputes. The alternate forums or ADR are more sympathetic towards woman’s cause and requirements.181 ADR is a satisfactory way of dispute resolution that brings about women favouring results. ADR follows a flexible approach, and the mediator/conciliator offers his assistance at every stage, be it communication, enhanced cooperation, mutual problem solving, or building trust. The ADR mechanisms are set up specifically to deal with women’s marital and family problems. Forums like FC provide congenial spaces to women who may not be in a position or knowledgeable enough to speak openly about their woes.182 With the able guidance and assistance from the ADR practitioner, parties keep the discussion going without blaming each other. He helps them to work on the marriage if they still wish so. These forums generate confidence in women that they can openly air their grievances, and the third person will appreciate them.183 ADR is often a useful way of peacefully ending the marriage by providing a harmless location in which each party can tell the other spouse about things bothering them and their feelings about the relationship. The ADR process with its confidentiality hallmark for providesi a private setting and is thus a more viable option for special, effective, and sensitive handling of every dispute.184 It makes the entire process safe, unthreatening, and less stressful.185 It is worth mentioning here that when applying these ADR techniques, services of professionals, experts from various fields like psychology, sociology, social workers, judicial officers, counsellors, and mediators are taken.186 Since the process of ADR is premised on the concept of consensual dispute resolution, there is no pressure or coercion exerted on the women.187 Also, while initiating these processes, the third neutral person, in the very beginning itself, makes their opening statement to the parties to lay down the ground rules. Among them, the most important rule is not to use abusive and blaming language. These rules act as a catalyst in maintaining civility, 179 Pearson

and Thoennes (1982, pp. 27–31). (2011, pp. 3–5). 181 Schneider (1986). 182 Littleton (1989, pp. 751–754). 183 Pearson (1982). 184 Folberg and Taylor (1984, pp. 264–280). 185 See Section 4 of the FCA. 186 Herbert and Javris (1970, p. 74). 187 Menkel (1991, pp. 1–5). 180 Panchu

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sustained communication, and endowing safe and unthreatening setting to women. Thus, the ADR process is monitored and administered by people who are aware of the constraints peculiar to women. For creating a safe setting for women special gender sensitization workshops and seminars for training and capacity building among judges, mediator, counsellors, and police personnel are convened in India wherein they are appraised about the techniques of providing a reliable setting to aggrieved women for their grievance redressal. The ADR practitioners focus on the special needs of the women so that they feel secure. In setting the tone for the interview, the counsellor creates a permissive atmosphere. If the party has difficulty expressing them, they are helped by him to state things bothering them and their expectations from the process.188 In these informal ADR process,189 the spotlight is on building communication between the stakeholders. For this, the ADR practitioner tries to understand the nuances of the dispute towards better collaboration. The core idea of ADR is not to identify the offender and to punish him but to identify the problem and help the family members to cope with it.190 Their focus is to preserve future relationships rather than on acts of the past.191 Once the skilled mediator/counsellor sense family violence, he will improvise the dealing to provide a conducive environment to women for airing their grievances freely.192 The ADR practitioner indulges in active listening of the situation which is imaginative and empathetic listening.193 To be effective during the process, he uses verbal and non-verbal communication as a clue to gauge the sense of safety of the women. He often takes into account the non-verbal cues for creating a dependable setting. The practitioner possesses the power of observation, i.e. what the client does, how he acts, his mannerism, his silence that is much more significant than what the client says.194 Rigid posture clenched hands; facial expressions are given attention to ensure that the women feel safe and unthreatened during the session. He possesses the ability to understand the feelings and experience of his client. No defensive attitude is aroused in the client by poorly timed interpretations which may be taken as criticism. Any attitude of intolerance, the appearance of boredom, anxiety which may manifest in frequent interruptions and premature interpretations and a promise of secrecy before the situation is understood should be avoided.195 Thus, ADR practitioners like counsellor and mediator profuse warmth, friendliness, and understanding while dealing with the strong emotions of the couple. Patience is the characteristic of a successful ADR practitioner who devotes sufficient time and tries to understand the basic social construction to which the husband 188 Ethel

(1971, p. 9). (1984, pp. 21–26). 190 Sehgal in Sehgal and Sherjung (1997, p. 1). 191 Arnold in Rao and Sheffield (2002, p. 210). 192 Pearson (1982, p. 440). 193 Aggarwal (2006, p. 73). 194 Aggarwal (2006, p. 103). 195 Cavanagh (1963, pp. 6–7). 189 Rifkin

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and the wife belong. It helps the marriage counsellor and mediator to understand the party’s emotions and strive for a solution that is best suited to all. He perceives marriage as the beginning of a family unit, which is a basic unit of society.196 Under such a reliable setting, a man and woman may, for the first time, see each other with objectivity, because of the protecting presence of the third neutral person. Often parties accept each other’s feelings and needs which might not have been appreciated in the past.197

2.4.2 Provides a Platform for Amicable Resolution of Marital Disputes Unlike the adversarial process, where the parties take a back seat, the lawyers represent the parties and the process culminates in an imposed decision by a third party (judge), mediation allows the parties to decide for themselves. It allows them to put forward what is in dispute, their respective points of view, and to come to their unique agreement based on mutual best interests. Mediation is less costly than litigation because settlements are made in less time and a few mediated agreements are re-agitated in the Court compared to other types of agreements. There is greater compliance with mediated agreements. Mediation allows the divorcing couples to maintain control of decisions about child support, parenting, and other financial entitlements without prolonged procedures and disputes.198 In any litigation process, the role of a competent advocate is quite crucial. They help the party whom they are representing the best benefits from out of the entire litigation process. However, a party with high resources will be able to hire an Advocate who will be skilful in this task and will get all the required remedies for his client. As compared to men, women because of their scarce financial resources frequently find it difficult to hire a proficient advocate. The results could be bad for them as they may have to accept an inadequate settlement which may not be as per their expectations. The differential earning capacity tilts the power in favour of the batterer leaving women vulnerable.199 In this sense, the court-annexed ADR mechanism are helpful to battered women as the mediator, conciliator, and counsellor try to help them in avoiding any one-sided settlements. The ADR practitioner is a third neutral party that facilitates or evaluates the dispute but does not impose any decision on the disputing parties unless they agree on a settlement.200 ADR is not only less expensive than the regular legal procedures but provides equal opportunity to both the parties to get the

196 Wadhwa

in Sehgal and Sherjung (1997, pp. 2–3). (1951, p. 189). 198 Wallerstein and Kelly (1980, pp. 51–54). 199 Rifkin (1984, pp. 22–24). 200 Mohta and Mohta (2008, p. 1203). 197 Mudd

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best of their claims. Due to their greater involvement in the settlement process, the dispute remains under the parties control and meets the party’s requirement.201 Moreover, ADR can offer a wide range of options and parties have the flexibility to choose from among them. A creative solution to several issues can be generated by the combined efforts of the disputing parties without a legal contest.202 The litigation process not only takes away the precious part of family life but also proves costly, monetarily, and psychologically. A lot of money is wasted during this process as fees and the productive asset is invested.203 In litigation, the end of one case does not mean the settlement of the other connected matters. Mediation/counselling in this regard aims to conclude all disputes at once and for all. For example, in a matrimonial dispute settlement process, the wife participates to discuss the maintenance claim but during the process other ancillary pending issues can be settled. As against this, litigation confines to the prayers mentioned in the plaint. The ADR process moulds the terms of settlement creatively that increases the scope of remedies.204 ADR preserves the best interest of the parties. ADR is advantageous in the settlement of family disputes as parties can by willing cooperation formulate a compromise and then have the same decision imposed by a judge through adjudication.205 Such a settlement based on mutual compromise and cooperation is a better way of ending a civil dispute in place of fighting them in the Court. Settlement by mutual compromise seems to be a better option when compared to fighting a dispute in Court where the outcome will not be in parties’ control,206 especially for women. By promoting communication among the parties, ADR enables them to work collectively for resolving the actual basis of the dispute. The focus remains on addressing the real interest of the parties.207 Once entering into a settlement and taking benefit under it, the parties to the settlement cannot resile from the compromise as they are not permitted to do so.208 The Court can quash the proceedings of the connected criminal cases by using its inherent powers of quashing. After having settled the matter through the process of mediation, parties cannot be permitted to backtrack from it as it negates the aims and objectives of the mediation process. Parties are bound by the terms of the settlement agreement arrived at between them before the ADR practitioner, more particularly when benefits are already availed.

201 Wissler

(2004, p. 60). and Zammit (1976, p. 91). 203 Laila T. Ollapally (September 8, 2012, p. 7) The Mediation Clearing the Minefield of Matrimonial Disputes, Deccan Herald. 204 Kohli Hima (2006–2011, p. 83) Role of Referral Judge in Mediation, Samadhan-Reflections, Delhi High Court Mediation and Conciliation Centre. 205 Maheshwari (1992, p. 162). 206 Wissler (2002, p. 664). 207 Rao and Sheffield (2002, p. 83). 208 Mohd. Shamim and Others v. Nahid Begum (Smt) and Another (2005) 3 SCC 302. 202 Spencer

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The withdrawal of consent by any of the parties on some innocuous ground is impermissible.209 Several disputes that could shake the marriage are permitted to be amicably settled through the ADR process. In Ruchi Agarwal v. Amit Kumar Agarwal & Ors.,210 a similar view was taken and FIR was quashed. Matrimonial disputes arising from a complaint under Section 498-A of the IPC can be quashed by the HC in case the parties settle their dispute.211 Some offences which bear civil flavour like offence arising out of matrimony, relating to dowry, and when the offender and the victim amicably settle all disputes between them even if the offence is not been made compoundable, the HC may quash the criminal proceedings for the ends of justice.212 So, ADR serves an instrumental function by enabling an amicable settlement of disputes outside the Courts. They serve an intrinsic function by enabling the parties to settle disputes on their own.213 The complainant cannot turn around and oppose the petition after they agreed to the quashing of these proceedings. Section 89 of the CPC is an all-around attempt by the legislature, the judiciary, and the executive, to promote the amicable settlement of disputes through this process.214 ADR requires cooperation between the parties which eventually helps reduce hostility and results in stable and amicable agreements. These agreements are likely to inspire long-term compliance among the parties as they willingly and amicably consented for that outcome.215 It helps both parties to understand each other’s viewpoint more rationally. On the conclusion of the ADR process, even if the parties do not reach a settlement and go for an adversarial process often, they have already reached a point where the disputes are resolved speedily. Thus, mediation is a win–win situation.216

2.4.3 Provides a Confidential and Informal Mechanism Unlike Formal Court Proceedings Unlike formal legal systems that often intimidate people ADR process helps disputing parties to make an informed decision that too in a comfortable environment.217 Also, due to the non-following of the rigid procedural laws like CPC, CrPC, and IEA, the 209 Aditya

Chandershekhar Pandit and others v State of NCT of Delhi and another, 2012 Indlaw DEL 1640. 210 (2005) 3 SCC 299. 211 B.S. Joshi & Ors. v. State of Haryana & Anr., AIR 2003 SC 1386. 212 Gian Singh v. State of Punjab & Anr. (2012) 10 SCC 303. 213 Aggarwal (2006, p. 26). 214 Jaibir & Ors. v. State & Anr., 142 (2007) DLT 141. 215 Chodosh, H. E. Mediating Mediation in India. Available at: https://lawcommissionofindia.nic. in/adr_conf/chodosh4.pdf (Accessed on June 18, 2020). Fisher et al. (1991, pp. 177–187). 216 Pearson and Thoennes (1983, p. 26). 217 Rifkin (1984, pp. 21–25).

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ADR process costs less both emotionally and economically, thereby making it more satisfactory than the regular dispute resolution mechanisms. The informality feature of the process allows the ADR practitioner to tackle conflict and emotional stress effectively unlike the impersonal and uncaring way in which the formal litigation system handles these sensitive matrimonial disputes. Being free from procedural technicalities of Courts and an informal process, ADR permits parties to freely express themselves without apprehensions of being judged or stopped for everything that they say or do during the process. Any information received during the conduct of the ADR process is not admissible in the Court later when parties are unable to resolve the dispute through ADR and file a Court case.218 The person presiding over the ADR process establishes rapport, a close understanding and confidence with parties which is not available in the conventional Court system. The adversarial system is not providing a setting for women to raise their concerns.219 By following the informal process, he reduces hostility among the parties and allows ventilation of feeling. In contrast to the dilatory litigation which goes on for years, the less cumbersome process of ADR makes it ideal for matrimonial disputes. Therefore, in cases concerning relationship, the advocates must advise their clients to try mediation and get swift disposal of litigation that will else drag for years and decades often ruining both parties.220 Unlike arbitration and Court trials, an ADR process like mediation is not a determination but a facilitated negotiation. Parties to a mediation are free to evaluate their status and standing in the case and may walk away when neither of them likes the offered deal. Family disputes are personal and require such choices that ADR process like mediation can very well provide. The whole process is party controlled and offers flexibility.221 The system of ADR emphasizes mediation, access to justice, increased effectiveness, and fewer delays that specifically suit the needs of a women litigant. ADR in matrimonial disputes does not always eliminate all the problems that are associated with a litigated divorce, but it is less traumatic and stressful for both the parties and their children. ADR settles property and child custody without costly trials and appeals. The focus of the third neutral person is on restoring relationships and preventing any further conflict.222 Women who are almost always a vulnerable party see these mechanisms as a respite due to their confidential, private and informal fundamentals.223 An increased number of matrimonial disputes are referred for the ADR process for its highly personal and confidential nature. The spousal disputes require confidentiality and lack of formality unlike the Court proceedings that are openly conducted majorly in the full public gaze.224 During the dispute resolution process, there are various offers, counteroffers, and proposals that are made by both 218 Kirtley

(1995). (1986, pp. 590–607). 220 B.S. Krishna Murthy v. B.S. Nagaraj & Ors, AIR 2011 SC 794. 221 Chandra in Rao and Sheffield (2002, p. 82). 222 Pearson and Thoennes (1984, pp. 498–515). 223 Rifkin (1984, pp. 21–26). 224 Rifkin (1984, p. 26). 219 Schneider

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the parties. Parties efficiently deal with the connected cases requiring informality that is generously offered under the ADR process.225 High level of sentiments and emotions might be involved to which legal, technical, and procedural rules will not be adequate. Women in India are especially sceptical about discussing their family matter considering them as family, private, and inside matter. They are reluctant to file a case against her husband as it would publicize their dispute. In such a situation the confidentiality and informality aspect promised by the ADR process will be a respite while dealing with marital disputes. No rigorous fixed sets of rules are employed and parties are free to fix the informal and flexible procedure for themselves. They are completely confidential and without any prejudice.226 To maintain confidentiality during and after the completion of the ADR process, the report transmitted to the Court only states if the mediation process succeeded or not. It is not required to assert the details of what transpired during the proceedings. The evidence and testimony are not recorded for future reference and for maintaining informality. If the ADR proceedings are unsuccessful, the mediator should merely write ‘mediation has been unsuccessful’ a one-sentence report and send it to the Court. The larger idea is to endure non-discloser of the happenings in the mediation proceedings that may destroy the confidentiality in the process.227 The agreed settlement or the Memorandum of Understanding (hereinafter MOU) is not regarded as a concluded contract until the Court approves it. The confidentiality features of the process make it convenient for women to air grievances about agitation which they might find difficult in an open Court convened normal Court proceedings, eg. issues concerning sexual issues and harassment. The informality of the ADR mechanism will give women the kind of confidence required to make the entire separation journey less intimidating and non-alien in comparison to the formal Courts.228 The procedures like examination and cross-examination may be nerve-racking for her but the informal process will be more comforting. ADR practitioners listen patiently and sympathetically who support parties in their efforts to adjust, even though success is not immediate.229 From children point of view, divorce can be a very painful experience as it disturbs their entire family life. It will be painful for the children to see their parents fighting an ugly legal battle in the Court of law.230 They will be ignored and will bear the bitterness of their parents. These unhealthy divorces will exert a significant negative impact on them.231 So, an informal232 setup of ADR will help parties to agree to a mutual agreement without pulling each other down. ADR is an informal process that does not require 225 Golberg

(1985, p. 113). (2005, p. 128). 227 Moti Ram (D) Tr. Lrs. v. Ashok Kumar & Anr., AIR 2010 SCR809. 228 Bautz (1988, pp. 55–58). 229 Mudd (1951, p. 179). 230 Wallerstein and Kelly (1980, p. 6). 231 Spencer and Zammit (1976, pp. 911–914). 232 Rifkin (1984, pp. 21–26). 226 Hasan

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lawyers to be present that saves cost. Also, mediation proceedings, especially in the court-annexed mediation programme, are not binding unless it is signed by both the parties and submitted to the Court for recording and passing a decree based on it.233 Therefore, ADR enhances women’s rights and promotes access to justice for them. The informality aspect makes it user friendly by widening this scope. The introduction of Court-connected mediation and counselling programme run in the District Courts follows procedures that allow for flexibility. Additionally, women can access these court-connected ADR process available within their local limits, thereby saving their time and causing less stress. The confidential and informal ADR process has the potential to bring peace, reunite families, repair marriages, and save children from lurching in the doldrums.

2.4.4 Others Benefits Family disputes are one example of a situation where in the Court of law has not always found to be a satisfactory means of resolving them. Marital disputes are peculiar and reasons based on which separation is sought can be varied making these disputes fall in the category of cases, which are not suitable for the present adversarial modes. ADR provides speedier and inexpensive means for setting a variety of matrimonial disputes.234 ADR is an inflexible, inexpensive and confidential process that is especially suitable to the requirements of a woman who in the majority of the cases is a party with lesser means. Also, the process can be resorted at any time, i.e. at any stage of the dispute; pre or post. They are voluntary and at any point, any party can terminate these proceedings if the discussions are proceeding in the desired direction or seem to be failing in catering to one’s needs. Parties are free to choose the third neutral party who assists them in these processes. The help of an expert can be sought whenever required. As against litigation, there is no requirement of seeking legal assistance from the advocates. But under Courts express permission, parties have the freedom of choice to seek advocates intervention, especially in technical cases. A dispute can be resolved within a short duration. The ADR practitioner plays a crucial role in bridging the gap between the two estranged couples and by giving voice to the weaker and the vulnerable part usually women in a marital dispute. Issues like dowry, adultery, maintenance, cruelty require considerable time to deal with and counsel both parties. This facility is amply available under ADR process like counselling. Under the mediation and counselling process, it hardly takes limited sessions to sort out the dispute. Unlike the formal Court proceedings that are dilatory, ADR saves the time, money, and energy of the parties. As per the 222nd Report of Law Commission of India on Need for Justice Dispensation through ADR, the development of ADR process like mediation in the resolution of family disputes in 233 Afcons

Infrastructure v. Cherian Verkay Construction (2010) 8 SCC 24. (1991, p. 62).

234 Nicholson

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India holds enormous promise to strengthen the system’s capacity to deliver justice. Making ADR process like mediation mandatory for the resolution of family disputes will provide a tangible manifestation of the Court’s commitment to a settlement seeking approach.235

2.5 Conclusion To conclude marriage is recognized as a main and essential societal organization, more so in India. Contemporary challenges and strains exerted on the Indian family and marriage have led to a transition in them. It has been faltering among conventional and Western models. The marital relationship is under increasing strain. It is becoming complex and demanding. A steep increase in the number of matrimonial litigation filed in the Courts is being witnessed. There are various reasons for this growing trend. The concept of access to justice is amply recognized under the Indian legal provisions, but the current status of judicial systems with their own merits and demerits is overburdened that has made the Courts more and more inaccessible to the common people more so for women seeking justice through Courts. As the traditional litigation process has failed to withstand the mounting pressure of arrears and case pendencies, we are witnessing the phenomenon of ‘docket explosion’. ADR is evolving as an alternative mechanism of dispute resolution and has indeed achieved a major part of the dispute resolution process. A significant increase in matrimonial disputes filed, but matrimonial battles if fought in the Courts are long-drawn and give rise to unnecessary and unwarranted allegations among parties. The chapter highlighted the current trends in matrimonial litigation and the potential of ADR in resolving sensitive matrimonial disputes. It probed the benefits offered by the ADR process for aggrieved women.

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Luthra, P. N. (1996). The family experience—Its moorings and the impact of social change. Social Change, 26(2). Maheshwari, V. K. (1992). Family court: A quest to resolve matrimonial disputes. The Lawyers. Mahmood, T. (2002). The Muslim law of India. LexisNexis Butterworths. Matysiak, A., Styrc, M., & Vignoli, D. (2014). The educational gradient in marital disruption: A meta-analysis of European research findings. Population Studies, 68(2). Mediation Training Manual of India. MCPC. Supreme Court of India, Delhi. Menkel-Meadow, C. (1991). Pursuing settlement in an adversary culture: A tale of innovation co-opted or “The Law of ADR,” Florida State University Law Review, 19(1). Mishra, S. (1994). Ancient Hindu marriage law and practice. Deep and Deep Publications. Mitchell, G. D. (1979). A new dictionary of sociology. Routledge Publishers. Mohta, V. A., & Mohta, A. (2008). Arbitration. Conciliation and mediation (2nd ed.). Manupatra Information Solutions Pvt. Ltd. Moore, C. W. (1986). The mediation process. Jossey Bass. Mudd, E. H. (1951). The practice of marriage counselling. Association Press. Mudd, E. H., Stone, A., et al. (1958). Marriage counselling—A casebook of practice of marriage counselling. Association Press. Mukherjee, R. (1997). Legal status and remedies for women in India. Deep & Deep Publications. Mulla, D. F. (1977). Principles of Mohammedan law (18th ed.). N. M. Tripathi Private Ltd. Murphy, B. S. (1993). ADR’s impact on international commerce. Dispute Resolution Journal, 48(4). Murthy, H. V. S. (2006). History of India part I. Eastern Book Company. Narayan, C. L., et al. (2015). Indian marriage laws and mental disorders: Is it necessary to amend the legal provisions? Indian Journal of Psychiatry. Nariman, F. S. (2006). India’s legal system can it be saved. Penguine Books. Nash Ethel, M., & Jessuer, L. (Eds.). (1964). Marriage counselling in medical practise: A symposium. The University of North Carolina Press. Neilson, L. (1989). Solicitors contemplate mediation: Lawyers perceptions of the role and education of mediators. International Journal of Law and the Family, 3. Nicholson, J. (1991). Mediation in the family court. Law Institute Journal, 65. Panchu, S. (2011). Mediation practice and law. Lexis Nexis Butterworths Wadhwa. Parkinson, L. (1997). Family mediation. Sweet and Mexwell. Pearson, J. (1982). An evaluation of alternatives to court adjudication. The Justice System Journal, 7(3). Pearson, J., & Thoennes, N. (1983). Mediation and divorce: Benefits outweigh the costs. Family Advocate, 4(3). Pearson, J., & Thoennes, N. (1984). Mediating and litigating custody disputes: A longitudinal evaluation. Family Law Quarterly, 17(4). Ramachandrappa, S. (2012). Causes and consequences of divorce in Bangalore city—A sociological approach. OSR Journal of Humanities and Social Science, 4(4). Ramachandrappa, S., et al. (2016). Wither marriage? Divorce Mania in Bangalore city: A critical analysis. International Journal of Advanced Research in Management and Social Sciences, 5(2). Rao, C. N. S. (2007). Principles of sociology with an introduction to social thought (6th ed.). S Chand & Co. Rao, K. P. (1991). The law relating to marriages of Christians in India. Asia Law House. Rao, P. C., & Sheffield, W. (Eds.). (2002). Alternative dispute resolution—What it is and how it Works. The International Centre for Alternative Dispute Resolution. Universal Law Publishing Co. Pvt. Ltd. Rifkin, J. (1984). Mediation from a feminist perspective: Promise and problems. Law and Inequality. A Journal of Theory and Practice, 2(1). Riskin Leonard, L., & Westbrook James, E. (1987). Dispute resolution and lawyers. West Publishing Co. Rutledge, L. A. (1968). The future of marriage counselling. In N. Ard Ben & C. Ard Constance (Eds.), Handbook of marriage counselling. Science and Behaviour Books Inc.

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Chapter 3

Matrimonial Litigation, Its Aftermath, and ADR Mechanisms in Focus

3.1 Legal Provisions and Personal Laws Dealing with Marital Conflicts Marriage and divorce are two legal concepts, which exist in almost all societies in the world. Marriage establishes a legal relationship between a man and a woman, whereas divorce is a legal dissolution of marital ties that severs a matrimonial bond. Every religious community in India have their specific marriage laws and divorce procedures (Hindu-HMA; Muslims-DMMA; Christians-IDA; Parsis-PMDA). As discussed, the Indian legal system recognizes the personal law that direct and control the relations within the family and marriage. They apply to people principally on the grounds of their religion. They are specific to a particular religion, separate for all the communities, and have a direct bearing on the rights of the women. Among Hindus before the enactment of the HMA, divorces were not prevalent and regarded as being against the ethos of Indian society. The introduction of divorce under the HMA was sort of a revolution. The Act applies to all those persons who are permanent residents of India and are Hindus as per Section 2 of HMA and not Muslims, Jews, Christians, or Parsis by religion. Breaking the traditional understanding of marriage being a permanent, eternal union, Section 13 of the Act permits various types of divorce petitions for the severance of marriage on proof of the mentioned substantial grounds. Based on nine grounds (adultery, conversion, unsoundness of mind, leprosy, etc.), divorce can be sought from the Court under Section 13(1) of the Act. These grounds are equally available to both parties and based on the ‘fault liability theory’. In the case of adultery, even one single act is sufficient for seeking a divorce.1 The offence can be proved by circumstantial evidence and by a preponderance of probabilities. Cruelty can lead to divorce (Section 13 (1) (ia)) and judicial separation (Section 10 (1)). Cruelty can be physical and or mental cruelty.2 Two more common grounds were added under Section 13 (1-A) by 1 Mahalingam 2 Dastane

Pillai v. Amravalli (1956) 2 MLJ 289. v. Dastane, AIR 1975 SC 1534; V. Bhagat v. D. Bhagat, 1994 AIR 710.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8_3

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an amendment made in 1964. Besides these two, Section 13(2) of this Act provides four additional grounds of divorce that only women can avail. These are pre-Act polygamous marriage, rape, sodomy or bestiality, non-resumption of cohabitation after a decree/order of maintenance, repudiation of marriage. The easiest way to get divorced is through a divorce by mutual consent. As divorce proceedings are a long-drawn and costly legal affair, if the couple opts for divorce by mutual consent, it will make the process swift. It is the least traumatic and uncomplicated way of getting divorced. It is recognized by all the personal laws and under the Special Marriage Act (Section 28). Section 13B of the HMA (added by Marriage Laws (Amendment) Act, 1976) provides mutual consent divorce. For this, a joint petition must be moved to the Court and the parties have to state that they have been living separately for one year or more, they have not been able to live together, and have agreed that the marriage is dissolved. On being satisfied with the terms and circumstances, the Court will grant a divorce to the consenting parties. The old ways of divorcing are kept intact under Section 29 of HMA. It protects customary divorces provided such dissolution of marriage is recognized under the customary laws of that community. Unless there is a custom in vogue, no divorce can be obtained by a Hindu couple without approaching a Court of law. The parties are under an obligation to prove the existence of an ancient and reasonable custom that is not opposed to public policy. These divorces were available even before the commencement of the HMA and saved under Section 29.3 Thus, severance of marriage and right to divorce is a statutory right and allowed only on substantial grounds, subject to customs. Additionally, the IPC under Chapter XX (Section 493– 498) relating to offences concerning marriage like mock or invalid marriages; Bigamy; Adultery; Criminal elopement; and Chapter XX-A (Section 498A) dealing with cruelty to a woman by her husband or his relatives allows the first wife to claim a divorce. In a Muslim marriage, the female enjoys a very fragile marital life as the Muslim husband is vested with an almost absolute right to divorce the wife at any time by resorting to the ‘Triple Talaq’ method. Any Muslim who is of sound mind had obtained puberty can divorce his wife whenever he desires without assigning any reason.4 The husband has unilateral power to pronounce the divorce. He need not take the consent of his wife, and without following any formality or legal procedure, he can divorce her.5 Divorce can be oral, expressed, or can be pronounced in the absence of his wife. All that is required is it must be addressed to her, with no proof of intention being necessary.6 The unbridled authority to liquidate the marriage is forbidden under the Quran (IV: 34), and Muslims are permitted to dissolve their marriage due to certain reasons only.7 However, the monstrous practice of instant

3 Yamanaji

v. Nirmala, AIR 2002 SC 971. Kasim v. Khatun Bibi (1932) 59 Cal. 833. 5 Diwan (1985, p. 76). 6 Rashid Ahmed v. Anisa Khatun (1932) 59 L.A. 21. 7 Shamim Ara v. State of U.P. & Anr. AIR 2002 SC 619. 4 Ahmad

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Talaq continued till recently.8 The constitutional validity of Triple Talaq (talaq-ebiddat) was challenged, but the case declared the practice of instant triple Talaq unconstitutional and made it punishable from September 2019.9 This judgement has brought justice to a large number of uneducated impoverished Muslim women and will hopefully prove to be an important step towards social reform and gender justice. Box 3.1: Classification of Legal Remedies Under Muslim Law I. Extra judicial divorce that can be further divided into A.

B.

C. II. III.

Divorce at the instance of husband (Talaq) (a) Talaq pronounced by the husband who can abandon his wife at his wish without assigning reasons (b) Talaq delegated by the husband (Talaq-i-tafweez—divorce at the insistence of wife in a case where power is delegated to her by her husband at the time of marriage or thereafter) Divorce at the instance of the wife (a) Khula (b) Ila (is a constructive divorce by husband where he takes an oath not to have sexual intercourse with his wife followed by no cohabitation for four months after which the marriage is dissolved) (c) Zihar (when husband compares his wife with his mother or any other female within a prohibited degree) (d) Lian (when husband levels false charges of unchastity or adultery against his wife) Divorce by Mutual Consent (Mubaraat)

Judicial Separation Judicial Divorce.

Muslim marriage can be dissolved either by the act or death of the parties. Muslim personal laws recognize six forms of divorce. The types of divorces mentioned above and the other legal remedies available for the matrimonial conflicts can fall under three broad categories. Among them, the extrajudicial divorces can be a divorce at the instance of the husband who possesses the power to dissolve his marriage, at his pleasure with or without showing any cause. This pronouncement of Talaq may be either revocable or irrevocable. The revocable forms of Talaq are considered as the ‘approved’, and the irrevocable forms are treated as the ‘disapproved’ form of 8 Hannefa

v. Pathummal, 1972 KLT 512; Alungaprambil Abdul Khader Suhud v. State of Kerala (2007) 1 DMC 38 (Ker). 9 Shayara Bano v. Union of India (2017) 9 SCC1.

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Talaq.10 Talaq is of two kinds, first Talaq-ul-Sunnat or revocable Talaq, in which there is a possibility of compromise and reconciliation between husband and wife. It can be subdivided into Talaq Ahsan (most approved form or most proper form and Ahsan means very good) and Talaq Hasan (Approved form and Hasan means ‘good’). The second kind is Talaq-ul-Biddat, Talaq-ul-Bain or irrevocable Talaq. It is a disapproved mode of divorces that becomes effective as soon as the required words are pronounced to make divorce effective with no possibility of reconciliation between the parties. The Talaq-ul-Biddat again has two forms, triple irrevocable Talaq and single irrevocable talaq. (b) Talaq-i-Tafweez or delegated divorce implies the exercise of the right of divorce by the wife. Under this divorce, the power is delegated to the wife by her husband at the time of her marriage. But this power does not deprive the husband of his right to pronounce Talaq. He is also entitled to delegate this power to another person. The delegation of Talaq may be unconditional or subject to a certain condition or contingency.11 Divorce at the instance of wife and as mentioned under the Muslim law can be of four types. It can be Khula or redemption means lying down by a husband of his right and authority over his wife.12 In this, the divorce is with the consent and at the instance of the wife. She may have to give up her claims due from her husband’s side or has to agree to provide consideration to the husband for getting her release from the marriage tie.13 Divorce by mutual consent or Mubaraat is also recognized. It means ‘release’ or an act of freeing one from another mutually.14 In Ila or ‘vow of continence’, the husband takes an oath that he will not do sexual intercourse with his wife for four months or above. After making Ila, if the husband has abstained from sexual intercourse during this period, the marriage shall stand dissolved.15 Zihar or injurious assimilation is yet another type of divorce in which the husband compares his wife with his mother or any other female within the prohibited degree and say ‘the back of my wife is as my mother’s back’. Lastly, Lian or imprecation is an imputation of adultery made against the wife by the husband that entitles the wife to file a suit for dissolution of marriage based on a false charge of adultery.16 Before the passing of this Act, a Muslim woman could apply for dissolution of her marriage on the grounds of impotency of the husband, Lian (false charge of adultery), and repudiation of marriage.17 The DMMA Act made a revolutionary change by granting a Muslim married woman to seek divorce through Court proceedings on certain specified grounds that include absence, neglect, imprisonment, impotency,

10 Fayzee

Asaf (2005, p. 151). (2012, pp. 355–365). 12 Ahmad (2004, p. 184). 13 Moonshi Bazul-ul-Raheem v Lateedutoonnissa, 8 MIA 379 Mst. Bilquis Ikram v Najmal Ikram (1959) 2 W.P. p. 321; Buzz-sul-Raheem v Lutefunuissa (1861) 8 MIA 397. 14 Jani v. Mohammad Khan, AIR 1970 J&K 154. 15 Rahema Khatoon v. Iqtidar-Uddin, AIR 1943 All 184. 16 Qureshi (2007, p. 97). 17 Zafar Hussain v. Ummat-ur-Rahman (1919) 17 All. LJ 78. AIR 1919 All. 182. 11 Kusum

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insanity, leprosy.18 These grounds are mentioned under Section 2 of the Act as per which a woman married under Muslim law shall be entitled to apply and obtain a decree for the dissolution of her marriage on grounds enumerated therein. Further, Faskh means annulment and refers to the power of Kazi to annul a marriage on the application of the wife. Concerning judicial separation, the grounds of divorce prescribed under Section 2 of the DMMA shall be the same. As regards divorce under Christian law, originally the law was discriminatory and prescribed adultery of the wife as a ground for dissolution of marriage on her husband’s petition. However, when the wife sought a divorce, she ought to satisfy the adultery aggravated with some other offence such as bigamy, cruelty, etc. The Amendment of IDA in 2001 to an extent regulated this discriminatory condition. Now, under Section 10 (1) of the Act, ten grounds for divorce are provided to both husband and wife.19 Additionally, under Section 10 (2) wife can sue for divorce on the ground of the husband being guilty of rape, sodomy, and bestiality. The PMDA governs the matrimonial relations of Parsis. Every Parsi marriage and divorce are required to be registered under the Act. However, failure to fulfil requirements on that behalf does not make the marriage invalid. Originally, Section 32 of the Act provides various grounds for divorce (non-consummation of marriage, unsoundness of mind, adultery, cruelty, imprisonment, desertion, and conversion). Section 32B was added by the Parsi Marriage and Divorce (Amendment) Act, 1988 as a ground for divorce by mutual consent. The PMDA under Section 18 lays down for the establishment of special Courts for Parsis known as Parsi Chief Matrimonial Courts at Calcutta, Madras, or Bombay, and in such other places, as such Governments respectively shall think fit. According to Section 19 of this Act, the Judge of such Matrimonial Court shall be aided by five delegates. The Jews matrimonial laws are not codified, and they are still governed by their religious laws. A Jew marriage can be dissolved through Courts on grounds of adultery or cruelty. The SMA under Section 27 states that either party can file a petition for divorce on various grounds. One of the common aspects of all divorce laws is the difficulties and struggle that women face while seeking a divorce. For women, it is almost always a stressful experience to file and fight a marital dispute in Court. They face financial constraints and undergo psychological anguish, financial deprivation, and societal embarrassment. Earlier matrimonial disputes were resolved by parents, respected elders, and other family members. In modern times, there are various forums for the settlement of matrimonial disputes. They can be conventional or modern, judicial or nonjudicial, governmental, or non-governmental. Judicial adjudication by the ordinary 18 The grounds includes-whereabouts of the husband are unknowns for 4 years, failure of the husband to provide for the maintenance of the wife for 2 years, a sentence of imprisonment of the husband for 7 years, failure to perform marital obligations, impotency of the husband, or insanity of the husband, repudiation of marriage by the wife before attaining the of 18 years cruelty of the husband and any other ground. 19 These include adultery, cruelty, desertion for more than seven years, unsoundness of mind, incurable leprosy, conversion to another religion, not heard of alive for seven years.

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civil Courts, LokAdalats, and ADR like FC and through mediation are recognized. The CPC regulates the procedure for filing a divorce petition and prescribes the form and essential ingredients to be mentioned in it. If the Court is convinced with the evidence placed on record, it may pass the decree of divorce. But in case it thinks fit, it may dismiss any such divorce petition on grounds like lack of cogent evidence concerning the alleged grounds or lack of proof of the alleged offence.

3.2 Range of Legal Proceedings Flowing from Matrimonial Conflict A divorce is a traumatic event that changes the status of mutual rights and duties among the parties. The divorcing parties may approach the Courts for various remedies. During the pre- and post-divorce, parties may face many interconnected issues. There is an entire range of legal disputes like restitution of conjugal rights, judicial separation, petition for a decree of nullity, maintenance claim dispute, child custody and guardianship, or division of property that needs to be decided. The majority of the claim cases is instituted for the dissolution of marriage and maintenance with a claim to ancillary remedies. This section discusses some of the legal proceedings that flow out from matrimonial conflicts. There are various remedies that women can seek from regular Courts or in court-annexed mediation or counselling process. The FC may order the counselling of the parties by the counsellor attached to its Court. During these hearings, parties are provided with an opportunity to present their versions of the facts. The counsellor offers help and advice to prevent the escalation of the dispute for its amicable resolution. In case there is no progress in the proceedings or the parties refuse the settlement, the case file is resent to the concerned Court stating that the reconciliation failed. The Court will resume the hearing of the proceedings from the same point and will follow the due process as prescribed by the legal provisions.

3.2.1 Maintenance Maintenance is the first signs of a matrimonial dispute. Maintenance includes provision for food, clothing, residence, education, and medical attendance, and treatment, and in the case of an unmarried daughter, reasonable expenses of the incident to her marriage.20 It includes all those necessities essential for a dignified life. Maintenance of a wife does not imply mere animal existence but signifies leading a lifestyle similar to one she lived in the house of her husband. The husband is duty-bound to enable

20 Section

3(b) of the Hindu Adoption and Maintenance Act, 1956; Smt. Sneh Prabha v. Ravinder Kumar, AIR 1995 SC 2170.

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his wife to live life with dignity according to their social status and strata.21 Right to maintenance is an obligation imposed on the husband that is personal, legal, and absolute. The maintenance right arises out of a jural relationship between parties consequent to the performance of the marriage.22 Maintenance implies an amount paid to the dependents that can be a lump-sum payment or as a monthly instalment. It is an amount of money payable by the husband to ensure financial help and security for women and children of the marriage. The maintenance provisions aim at preventing starvation and vagrancy that may lead to crimes in society and to provide women with a life with pride and respect.23 Box 3.2: Women’s Rights to Maintenance Provisions Under Various Laws For Hindu Women: The Hindu Marriage Act, 1955—Section 24 and Section 25; The Hindu Adoptions and Maintenance Act, 1956—Section 18 and Section 19 For Muslim Women: The Muslim Women (protection of rights on divorce) Act, 1986—Section 3; Section 4; and Section 5 For Christian Women: The Divorce Act, 1869—Section 36; Section 37, and Section 38 For Parsi Women: The Parsi Marriage and Divorce Act, 1936—Section 39; Section 40, and Section 41 For Women married under SMA: The Special Marriage Act, 1954— Section 36 and Section 37 For Women, Children, and in the capacity of parents, people from all communities can claim maintenance under the secular law: Section 125 Code of Criminal Procedure Temporary (pendente lite) Maintenance The Hindu Marriage Act, 1955 (Section 24); the CrPC (Section 125); the Special Marriage Act, 1954 (Section 36 Chapters V or VI); the Parsi Marriage and Divorce Act, 1936 (Section 39); the Special Marriage Act, 1954 (Section 36); the Divorce Act, 1869 (Section 36) Permanent Maintenance Hindu Marriage Act, 1955 (Section 25); Hindu Adoption and Maintenance Act, 1956 (Section 18); Criminal Procedure Code, 1973 (Section 125); the Protection of Rights on Divorce) Act, 1986 (Section 3); the Parsi Marriage and Divorce Act, 1936 (Section 40); the Special Marriage Act, 1954 (Section 37); the Divorce Act, 1869 (Section 37).

21 Bhuwan

Mohan Singh v. Meena (2015) 6 SCC 353. D. Vadodaria v. State of Gujarat and another (1996) 4 SCC 479. 23 The 41st Report of Law Commission of India (1969). 22 Kirtikant

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Women from every religion can claim maintenance under their respective personal laws. Women from all communities can seek maintenance under the secular Section 125 of the CrPC. The section provides a quick summary order that is a laudable and a positive endeavour in the direction of ameliorating the condition of helpless, separated, and divorced women. While applying for this remedy, the woman need not pay a Court fee when she files the application as an indigent person. During the pendency of proceeding for divorce or separation, temporary (pendente lite) maintenance is granted by the Court to meet the immediate needs of the petitioner. As per the third proviso to Section 125 of the CrPC, the maintenance application is required to be disposed of in sixty days of service of notice on the respondent. Permanent maintenance is granted after the disposal of the proceeding filed for divorce or separation. The payment of interim maintenance till the pendency of the case is a beneficial provision. Moreover, the meaning of the term ‘Wife’ as mentioned in this Section 125(1) Explanation (b) implies a woman who has either been divorced by her husband, has not obtained a divorce from her husband, and is not remarried.24 Under this section, only a legally wedded wife and a divorced wife are entitled to maintenance.25 Thus, a wife of bigamous marriage or void marriage is not entitled to maintenance.26 In case a man conceals the fact of subsistence of his first marriage and marries again, his second wife is entitled to maintenance from him.27 Women in a live-in relationship can claim maintenance under PWDV Act,28 but if a woman deliberately enters into a live-in relationship with a man whose marriage is subsisting she is not entitled to maintenance.29 In the context of the personal laws of each community, different provisions provide maintenance remedy to women. Relating to a married Hindu woman, maintenance can be claimed under Section 18 of the HAMA from her husband during her lifetime. She will be entitled to live separately and get maintenance in a few cases of reasonable excuse. If a woman does not want to live with her husband and she does not want either divorce or judicial separation, she may still claim maintenance and separate residence. However, Section 18(3) states that her claim to maintenance from her husband will be forfeited if she is unchaste or ceases to be a Hindu by conversion to another religion. Under HMA, both the parties to a marriage can file an application under Section 24 for grant of maintenance pendente lite, litigation expenses, and permanent alimony under Section 25, after proving that they have no independent income sufficient to support them. Apart from these provisions, under Section 19 of HAMA, a widowed daughter-in-law can claim maintenance from her father-in-law. 24 Vanamala

v. H.M. Ranganatha Bhatta (1995) 5 SCC 299. Velusamy v. D. Patchaiammal (2010) 10 SCC 469; Savitaben Somabhat Bhatiya v. State of Gujarat and others, AIR 2005 SC 1809. 26 Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988) 1 SCC 530. 27 Badshah v. Urmila Badshah Godse (2014) 1 SCC 188. 28 Lalita Toppo v. State of Jharkhand, 2018 SCC OnLine SC 2301. 29 Indra Sarma v. V.K.V Sarma (2013) 15 SCC 755. 25 D.

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However, maintenance can be denied if she is in an adulterous relationship, converted to another religion, and if it is a case of an invalid marriage. In the case of Muslim women, after divorce, she is entitled to get her dower amount, i.e. Mahr. It is the amount promised by the husband at the time of marriage and as a consideration of marriage. The amount of dower was put as an indispensable condition for marriage to protect the interests of women and to deter the husband from unnecessarily using his absolute power of pronouncing divorce on his wife.30 So once divorced, the wife will get her dower amount which is finalized at the time of marriage according to various criteria and maintenance during the Iddat period. Further, after a long struggle, Muslim women now can also claim maintenance under Section 125 of CrPC even beyond the Iddat period that led to a huge controversy in the past.31 Thereafter, the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRD) was enacted that reversed this beneficial effect and denied the extension of the right to maintenance to impoverished Muslim divorced women beyond the Iddat period. Later, in the case of Danial Latifi v. Union of India,32 the constitutional validity of Section 3(1)(a) of the MWPRD Act was challenged. After giving due consideration to Articles 14 and 15 of the Indian Constitution (right to equality and to prevents all form of discrimination based on sex), the Court held that Muslim husband is liable to make reasonable and fair provision for maintenance of his divorced wife even beyond the Iddat period and till she remarries. Now, every Muslim woman is entitled to maintenance under 125 of CrPC even beyond the Iddat period.33 Under Sections 39 to 41 of the PMDA, Parsi women are entitled to claim onefifth of the husband’s income as maintenance amount. The Court while granting maintenance keeps the total income of the husband and the conduct of the parties into account. Maintenance is payable till the wife ‘remains chaste’ and till she remarries. In case the husband fails to pay maintenance and neglects his wife, she can approach the Court for the recovery of maintenance relief by initiating a civil or criminal action. Similarly, under Christian law maintenance by a Christian wife can be claimed under Chapter IX of the IDA. As per Section 37, the petition can be filed in Court and the husband will be liable to pay maintenance for her lifetime. Maintenance rights are one of the most powerful tools that are available to neglected wives, divorced women, and separated women. In case the husband fails or refuses to comply with the maintenance order, without any sufficient cause, the wife is entitled to initiate criminal prosecution against him. The Court can pass an arrest warrant against him. The Court has the power to issue non-bailable warrants and lodge the husband in civil prison. An execution proceeding against the husband can be initiated, and his property can be attached by the Court to recover the due amount from him. The discretion to award lump-sum alimony or a periodical amount vests 30 Moors,

Annelies (1995) quoted in Heather Jacobson (2003, p. 164). Ahmed Khan v. Shah Bano Begum, 1985 AIR 945. 32 Danial Latifi v. Union of India (2001) 7 SCC 740. 33 Sabra Shamim v. Maqsood Ansari (2004) 9 SCC 616; Shabana Bano v. Imran Khan, AIR 2010 SC 305. 31 Mohd.

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with the Court. While deciding the quantum of maintenance, the wife’s individual and separate income is taken into account.34 If we look at all these maintenance provisions in totality, we will realize several inconsistencies and flaws in them. The rights of married and divorced women continue to be confined to a right of maintenance. The grant of maintenance also envisages a sexually pure woman, both within marriage and after divorce, and renders maintenance a premium to sexual purity.35 Muslim women are vulnerable to practices like polygamy and Talaq. They are both mentally and physically tortured for the payment of their dower or Mehr. In reality, Muslim women’s right against her husband extinguishes on divorce and completion of the Iddat period. Some effects of these beneficial changes are visible as she can claim maintenance both under Section 125 of CrPC and the personal laws.36 The aggrieved wife has the right to initiate proceedings but being uneducated and economically dependent finds it difficult to get redressal from the Court. Their natal family often does not support them in initiating legal proceedings. Practically, due to ignorance and unawareness, a large chunk of women remain vulnerable and ignorant about these significant developments. In case the husband is willing to cohabit with his wife, the maintenance claim is rejected except in a few exceptional cases. The maintenance amounts are usually low and insufficient to meet the needs of the women and her growing children. Maintenance will be forfeited if she has committed adultery, refuses to live with her husband, or separates from him by mutual consent. Thus, the enforcement of this remedy remains a huge challenge. Often tricky practices are followed by the husband to deny the claims of his wife. The ADR helps get timely orders for maintenance for women. The maintenance amounts are deposited in the Court that women can withdraw. The ADR practitioner is mindful of the difficulties women often face due to husbands reluctance to pay maintenance. In case the counsellor senses that delaying tactics are being employed and the batterer has no intention to reconcile the dispute, he reports the same to the FC judge to take further action on the maintenance application filed by the woman.

3.2.2 Return of Stridhan and Dowry Dowry harassment and allegation of repeated dowry demand from the husband and in-laws is often quoted as one of the prime reasons behind the onset of the matrimonial dispute leading to the institution of divorce proceedings. If we peep into the earlier writings, women were neither granted property in their name nor any share in the ancestral property. In ancient times, patrilocal societies have the system of parents giving resources to their daughters at the time of their marriage. This contribution

34 Bhagwan

Dutt v. Kamla Devi (1975) 2 SCC 386. (1999, p. 251). 36 Shabana Bano v. Imran Khan, AIR 2010 SC 305. 35 Agnes

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was made towards the creation of conjugal funds for newly married couples.37 These resources are now known as ‘dowry’ that may comprise money, goods, or estate that are gifted to a woman at the time of marriage. In modern times, the custom of dowry or bride price has grown into a monstrous social evil that is prevalent in almost all the communities in India. The dowry system makes marriage a business deal under which women are exploited and harassed, especially if they come from families who did not have the sufficient means to provide sufficient dowry towards ‘groom price’. The often unemployed young bride is regarded as a liability if she has not brought plenty of dowries with her. It was in the nineteenth and early twentieth century that the social reformers strived towards the granting of property rights for women along with the abolition of the social evil of the dowry.38 The DPA was enacted to restrain and check the accusations of dowry demand and harassment of married women. Section 2 of the DPA defines dowry as property given in consideration and as a condition of the marriage that does not include dower or Mehr. Section 8 of the Act makes demanding as well as providing of dowry illegal. This Act applies to all communities in India irrespective of religion. Apart from making the practice of dowry punishable, the Act ensures that any dowry given during marriage is utilized for the benefit of the women only. The Stridhan is her property, and it must be placed in her custody. She enjoys complete control over it, and the mere fact that she is living with her husband and using the dowry items jointly does not make any difference and affect her right to absolute ownership over the property.39 The Act under Section 6 states that any person who receives any dowry should transfer it to the woman as per the conditions prescribed. In the meanwhile, and pending such transfer, the person holding the dowry amount or property is regarded to hold it in trust and for the benefit of the woman. The Dowry Prohibition (maintenance of lists of presents to the bride and bridegroom) Rules, 1985 under Rule 2 requires a list to be prepared of all the gifts given at the time of marriage. In the situation of a matrimonial dispute, women can claim the transfer of the property from the Court under the detailed provisions of Section 6. It is open to a woman to file a suit for recovery of the dowry amount or valuables from the person holding it in trust, if that person has not transferred the trust property in favour of the woman for her benefit.40 The Court can punish the offender and order the transfer of property in favour of the woman or her legal heirs within a specified period. The Court may even order recovery of a fine amount equal to the value of the property and pay it to the woman or her heirs, parents, or children, as the case may be. If the husband retains the dowry gifted to the woman, he will be guilty of a criminal breach of trust (Section 406 of IPC and Section 6 of DPA).41 As per Section 8A of DPA, the person prosecuted is under the burden to prove that he has not committed 37 Siwan

(2004, p. 2). at: https://www.indiatoday.in/magazine/cover-story/story/19760515-dowry-one-ofthe-great-hazards-of-the-indian-social-system-819160-2015-04-06 (Accessed on June 18, 2020). 39 Pratibha Rani v. Suraj Kumar (1985) SC 628. 40 Renuka G. v. Papa Rao M., AIR 1995 AP 130. 41 Smt. Rashmi Kumar v. Mahesh Kumar Bhada (1997) 2 SCC 397. 38 Available

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any offence of taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section 4. Practically, the Act is not implemented in its true spirit as parents often do not stress on maintaining this list. Also, if the dowry does not pass to women after their marriage, parents usually refuse to intervene. They suggest women not hassle their husband and in-laws for this. Even when women choose to complaint about dowry harassment, the statistics of the NCRB of the last eleven years (2006 to 2016) for every single conviction, there is one case withdrawal and five acquittals. Thus, the conviction rates are poor as only one out of every seven cases resulted in punishment. The records show an increase of more than 150% in the last 11 years (in 2006, 206,000 cases were pending, whereas in 2016, this number increased to 515,000 cases) with 80% of all dowry cases in India end in acquittal.42 In its 21st Report (1988) on ‘Dowry Deaths and Law Reform’, the Law Commission of India analysed Section 498-A (husband or relative of husband of a woman subjecting her to cruelty) Section 304A (dowry deaths) of IPC and Section 113B (Presumption as to dowry death) of the Indian Evidence Act, 1872 (hereinafter IEA). The report observed that there are legal impediments faced by women in proving the facts of dowry. Despite these good provisions, arriving at truth and getting justice for women become a remote possibility evident from the poor conviction rates related to dowry cases. Again another report statistically highlighted this aspect that a total of 24,771 dowry deaths were reported in the country from 2012 to 2014 which is roughly 22 dowry deaths every day. While the charge sheet is filed in 93.6% of cases, only 14.4% ended in convictions.43 Women face difficulty in proving the fact of give and take and recovery of dowry is often an uphill task as hardly any list is maintained that can be of help in recovering the dowry and Stridhan property. It is difficult for women to prove the offence of dowry harassment in Court due to the non-availability of cogent evidence. In case the ADR practitioner like CAWC gets complaint of a marital dispute, their prime most effort is to recover and return the Stridhan to battered women. The FC judges and counsellors also make sure that the women get custody of their Stridhan properties. While drafting the MOU the FC, counsellor and mediator get a clause specifically mentioned in the terms of a settlement agreement for the return of Stridhan.

3.2.3 Judicial Separation (JS) As already stated, the marriage institution is important for a stable society and the law does not let it dissolve easily. The Court before ordering the dissolution of any 42 Available

at: https://www.sbs.com.au/language/english/80-per-cent-of-all-dowry-cases-in-indiaend-in-acquittal (Accessed on June 11, 2020). 43 Available at: https://www.thequint.com/voices/opinion/anti-dowry-law-favours-accused-overvictims (Accessed on June 18, 2020).

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marriage considers the fact that marriage is important for the parties involved and their children and for the society.44 Judicial separation is a remedy that is granted by the Courts to provide time to the parties to decide if they wish to continue their marriage. The provision provides an opportunity for mutual adjustment between the spouses.45 Under Section 10 of the HMA, either of the parties to the marriage can obtain judicial separation which is a lesser evil than divorce. The grounds for judicial separation are the same as the grounds for divorce mentioned in Section 13(1) and additionally for the wife under 13(2) of the HMA Act. Thus, all the fault grounds for divorce are also the grounds of judicial separation.46 It is a period during which the husband and wife stay away from each other and on completion of the period of separation it becomes a ground for divorce. The section prescribes a period of one year during which both the parties are directed to live apart. They continue to be legally married during this period but not required to cohabit with each other. Thus, almost all mutual rights and obligations arising out of a marriage are suspended, but the marriage subsists.47 Parties are still legally husband and wife. Neither can marry someone else, and if they do, they will be guilty of bigamy per IPC. During the judicial separation period, if any of the parties dies, the other party will be entitled to their property.48 Also, in case, a divorce petition is filed, and even if no prayer is made for granting judicial separation, the Court has the power to pass judicial separation in suitable cases. However, the petition should not be filed for divorce on the ground of change of religion, renunciation of the world, or presumption of death. The judicial separation is recognized under the different laws applicable to different communities. Section 23 of the SMA, Section 34 of the PMDA, and Sections 22 to 26 of the IDA provide the legal provision for judicial separation. The codified Muslim law does not explicitly provide for the remedy of judicial separation, but the Court permits the grounds for divorce as mentioned in Section 2 of the DMMA Act to be the grounds for application for judicial separation as well.49 But, for Muslim women, judicial separation puts a break on the payment of dower by husband till the finalization of a divorce. A woman can stay away from her husband during the judicial separation and claim maintenance from him. The wife is entitled to maintenance from the husband during judicial separation if she is unable to maintain herself.50 Any dispute concerning maintenance, settlement of matrimonial property, and child custody can be agitated during judicial separation period as well. The Court has a duty to expeditiously decide every application so that the indigent spouse is not handicapped because of the want of funds.

44 Hirachand

Srinivas Managaonkar v. Sunanda, AIR 2001 SC 1285. N. Shiva Mohana Reddy v. Smt. Aparna Reddy, 2005 (1) ALT 44. 46 Subbarama Reddiar v. Sakaswathi Ammal (1966) 79 LW 382 (Mad) (DB). 47 M. Narasimha Reddy And Ors. v. M. Boosamma, AIR 1976 AP 77. 48 Krishna Bhattacharjee v. Sarathi Choudhary (2016) 2 SCC 705. 49 Ms. Jordan Diengdeh v. S.S. Chopra, AIR 1985 SC 935. 50 Sohan Lal v. Kamlesh, AIR 1984 P H 332; Rohini Kumari v. Narendra Singh (1972) 1 SCC 1. 45 Dr.

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3.2.4 Restitution of Conjugal Rights (RCR) The right to the company of their respective spouse is the most significant aspect of the marital bond. In case one party leaves the society of the other party or abandons him without any reasonable cause, the aggrieved spouse can seek Courts intervention. The objective behind the restitution of conjugal rights is to restore a broken relationship between parties. In India, marriage creates conjugal rights and obligations between them. Both the parties are under an obligation to give company to each other and cohabit else a remedy of restitution of conjugal rights can be claimed against the erring spouse. Section 9 of the HMA provides this remedy, and Order 21 Rule 32 of CPC provides a decree for specific performance for restitution of conjugal rights or for an injunction. The section states that if any party withdraws from the society of the other party without reasonable excuse, legal action under this section can be initiated. But before granting restitution of conjugal rights, the Courts need to be satisfied by the petitioner that he has a bona fide desire to resume matrimonial relations.51 The section provides a remedy to the aggrieved deserted women against her husband. She can refuse to accept RCR on the ground mentioned in Section 13(2). The constitutional validity of Section 9 was challenged in various Courts for violating Article 14 (right to equality) and Article 21 (right of privacy and human dignity) guaranteed under the Indian Constitution. The decree of restitution of conjugal rights was held to be coercive, denying women a choice and forcing the unwilling party to have sex against his consent and free will.52 However, the decree of restitution of conjugal rights was held constitutional under the premise that Articles 14 and 21 of the Indian Constitution does not have a place within the privacy of home and married life.53 Section 9 is regarded as an encouragement for both parties to live cordially. If there is no restitution of conjugal rights, after the completion of the prescribed statutory period, either of the parties may petition for divorce. Maintenance is payable to a woman during this period and even beyond till she remarries.54 This remedy has been statutorily provided under all the other personal laws.55 While the Muslim law has no statutory provision for restitution of conjugal rights but according to Tayabji ‘Where either one of the spouses has withdrawn from the society of the other or has neglected his duties against the partners without a reasonable reason, the Court may interfere and can decree restitution of conjugal rights’.56 The grounds on which it can be claimed are not specified, but it states that

51 Syal

v. Syal (68) A.P&H.489. Sareetha v. T. Venkatasubbaiah, A.I.R 1983 A.P. 356; Saroj Rani v. Sudharshan, A.I.R 1984 S.C. 1562. 53 Saroj Rani v. Sudarshan Kumar,1984 AIR 1562; Jeet Singh v. State of UP (1993) 1 SCC 325. 54 Saroj rani v. Sudarshan Kumar, AIR 1984 SC 1652. 55 Section 32 and 33 IDA; Section 36 PMA; Section 22 SMA. 56 Tayabji (1968, p. 103). 52 T.

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when a wife without lawful cause ceases to cohabit with her husband, he may sue his wife for restitution of conjugal rights.57 The concept was introduced by the Privy Council that held that a suit for restitution of conjugal rights filed by a Muslim husband under Order 21 Rule 32 as a suit for specific performance of right. In case of cruelty and if decree will render it unsafe for the wife to return to her husband’s dominion, the Court will refuse to order this remedy. Besides, if there is a gross failure by the husband of the performance of obligations which the marriage contract imposes on him for the benefit of the wife, it affords sufficient ground for refusing him relief in such a suit.58 It was explained that restitution must be decided according to the principles of the Muslim Law (Sharia) and not based on justice, judicial morality, equity, or good conscience. The Court held that the conduct of the parties asking for performance of the marriage contract will be taken into account, and in this case, the wife was justified in refusing cohabitation if the prompt dower had not been given. Restitution of conjugal rights was not granted as the wife had a reasonable cause to do so.59 If we research the source of this remedy, the concept of restitution of conjugal rights is derived from the feudal England laws that considered marriage equivalent to a property deal with the wife being a man’s possession or a chattel. Still reeling under this understanding, women are forced to follow their husband and cohabit with them. There is a complete negation of the oppressed position of a woman in their marriage by the Courts and the society at large. The concept of conjugal right was stated to connote the idea of the right of husband and wife to each other’s society and marital intercourse. Sexual cohabitation is an inseparable ingredient of the decree of restitution of conjugal rights granted by the civil Court that denies the free choice to decide things concerning one’s own body and is in derogation of Article 21 of the Indian Constitution. Even the refusal to resign from one’s job is declared as ‘withdrawal from the society’ of the other that is an unreasonable interpretation.60 The custom expects a woman to diligently perform all her marital obligations. The spouses are made conscious of their duties through the marriage ceremonies. Often, the most modern woman who is conscious of her rights is still traditional in her notion and understanding of marriage and show an immense capacity of tolerance.61 Society coerces her through these gender-neutral provisions by manipulating them to defeat women’s rights. Husbands files for restitution of conjugal rights against wife’s claim for maintenance to deny her claim. As against the plea of desertion on which the wife’s claim for maintenance rests and she files for restitution of conjugal rights, the husband will prevent the wife’s re-entry after this decree and after the lapse of the statutory period of one year, he can get a divorce.62

57 Section

281; Mulla (2013, p. 367). Buzloor Raheem v. Shumsoonissa Begum (1867) 1 (1867) XI M.I.A. 551. 59 Abdul Kadir v. Salima (1886) ILR 8 All 149. 60 Smt. Vibha Shrivastava v. Dinesh Kumar Shrivastava, AIR 1991 MP 346. 61 Agrawala (1974). 62 Prashar and Dhanda (2008, p. 246). 58 Moonshee

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The continuation of restitution of conjugal rights is often justified for India based on the logic that misunderstandings, failure of mutual communication, or the intrigues of relatives are trivial issues that should not be the reason for breaking a marriage. Often the custody of a minor wife can be claimed on this ground. Where restitution has been ordered, a decree for separate maintenance cannot be ordered in favour of the respondent, without proof of new facts.63 The decree of restitution of conjugal rights is barbarous,64 violative of an individual’s right to privacy and liberty and giveswide discretionary power to the husband to misuse this provision according to his wish. Because marital rape is not an offence in India, the order of restitution of conjugal rights can force women into involuntary sex, sexual violence, and cruelty. If women facing violence are pushed into such an arrangement, they are likely to have an unwanted pregnancy.65 The financially dependent, socially pressurized women abandoned by their own natal family find it difficult to withstand this kind of pressure. The remedy of restitution of conjugal rights is abolished in many counties and the Law Commission of India in its 59th Report submitted for the deletion of this Section (1974). Every individual has a fundamental right to privacy under Article 21 that provides them complete autonomy over their body, but the restitution of conjugal rights is still practiced in India.66

3.2.5 Post-divorce Parenting A child is a gift of God and has a right to grow in a congenial environment. Parents try their best to provide them with all the necessary facilities that possibly they can afford for their healthy growth and development. In the case of divorce or death, the issue of child custody arises. ‘Child custody’ is a collection of rights that rests on several considerations with the child’s best interest remaining the overriding concern. It may be sole or joint custody or physical or legal custody. It includes the visitation rights, power to control a child’s education, his choice of religion, vacation, health care and illness, and the administration of his property. It includes both the personal power physically to control the infant until the years of discretion.67 ADR like counselling and mediation are undoubtedly spreading across the globe to effectively deal with matrimonial disputes. They promote cooperation and collaboration and thus effective post-divorce relations among parties to settle child custody issues.68 If we scrutinize the Indian personal laws relating to child custody, the codified Hindi laws like HMA; HMGA; HAMA; GWA lay down the custody rights among Hindus. The fundamental rights to equality (Article 14) and non-discrimination 63 Derrett

(1970, p. 292). v. Russel (1897) AC 395. 65 Stephenson et al. (2008, pp. 82–85). 66 K.S. Puttuswamy v. Union of India (2017) 10 SCC 1. 67 Hewer v. Bryant (1969) 3 All ER 578. 68 Irving (1981, p. 38). 64 Russel

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(Article 15) under the Constitution of India along with Section 6, 7, and 9 of the HMGA established the right of women to have the custody of a child. The HMA under Section 26 provides that in any proceeding under this act, the Court may pass such interim orders or orders as the case may be for the custody, maintenance, and education of the minor children. Section 26 of the Act states that a Hindu wife, living or not living with her husband or divorced or not, is equally-entitled to the custody of her minor children. Several Court cases have held that the child’s welfare rests with the mother. In Court’s opinion, the custody of a child below 5 years of age shall be with the mother unless special circumstances injurious to the child’s interest are shown.69 The Muslim law on child custody is given in Quran and Hadith. On separation or divorce, Islamic law gives priority to a mother for young child custody (Hizanat).70 She is entitled to receive custody wages for the child from his father. The male child remains in his mother’s custody until the age of seven years and in the case of a female child until she attains puberty.71 Thus, the mother can claim physical custody but the father remains the natural guardian despite the mother having custody of the child. Apart from the personal laws, the GWA also deals with custody matters for the Muslim. Section 7 and Section 17 of this Act deals with matters to be considered by the Court while appointing a guardian. The mother loses the guardianship of the minor daughter in case she remarries or is found to be indulging in immoral acts but that is not the case when the father gets remarried.72 The female infant of an unmarried Sunni Muslim mother should be in her custody, and the refusal to restore the same would result in illegal detention of the child within the meaning of Section 491 of Cr PC (power to issue directions of the nature of a habeas corpus).73 Also, in cases where the husband is guilty of any offence, the custody will be provided to the mother.74 For Parsis, GWA is applicable and the Court is guided by the best interest of the child principle. The overall development of the child is crucial for deciding who will get the custody rights of the child. For Christians, IDA along with GWA governs the issue concerning child custody with the best interest of the child applied as a test to determine the better claim. The applicable custody rights rule is that it is given to the parent with the better claim and the mother is always regarded to have a better claim. Numerous forward 69 Anita Krishnakumar Kachba v. K.R. Kachba, AIR 2003 Bom 273; Radhabai v. Surendra, AIR1971 Mys. 69; Chandra Prabha v. Premnath, AIR 1969 Delhi 283. 70 According to Amr Ibn Shu’aib, a woman came to the Prophet and said: ‘Truly my belly served as a container for my son here, and my breast served as a skin-bag for him (to drink out of) and my bosom served as a refuge for him, and now his father has divorced me, and he (also) desires to take him away from me.’ The Prophet Sallallahu Alaihe Wasallam said: ‘You have a better right to have him, as long as you do not marry again.’. 71 Hidayatullah and Hidayatullah (2010). 72 Rahmeena Khatoon v. Saburjanessa, AIR 1996 Gau. 33. 73 Gohar Begam v. Suggi Alias Nazma Begam and others (1960)1 SCR 597. 74 Syed Saleemuddin Appellant v. Dr. Rukhsana and others, AIR 2001 SC 2172, the case concerns dowry harassment and attempt to kill by setting the women appellant afire by pouring petrol. Mother was granted custody of children.

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looking judgements are now being passed by the Courts and have further clarified the instance in which the woman is granted the custody of the child. In Kumar V. Jahgirdar Appellant v. Chethana Ramatheertha,75 while granting the child custody to the mother, the SC observed that in the absence of compelling reasons and circumstances, the mother cannot be deprived of the company of the child. Mother was granted exclusive custody of the child and visitation rights to the natural father. However, prior to the SC intervention, the decision delivered by the lower Court points to the patriarchal mindset. The facts are such that after divorce the women remarried a cricketer of national and international repute. Later, a counter application for exclusive custody was filed by the former husband. The FC of Bangalore concluded that as the wife is remarried and is leading a different style of life involving frequent tours with her second husband for attending cricket events, there is a likelihood of a child developing distance and dislike for her natural father. The exclusive custody of the child was given to the natural father with only visitation rights to the mother. The HC has taken into consideration all other relevant facts and circumstances to conclude that the female child of growing age needs company more of her mother compared to the father and remarriage of the mother is not a disqualification for it. The conclusion of the HC was held just and proper in safeguarding the interest of the child. In the case of Lekha Appellant v. P. Anil Kumar,76 the SC observed that the remarriage of the mother cannot be taken as a ground for denying custody of the child. Although the custody of the minor child is given to the mother, the child should also get sufficient exposure to his natural father, and accordingly, the Court permits the respondent to have custody of the Child during important festivals and school vacations. The larger idea was to let women pursue their careers just like their male counterpart without fear of being perceived as neglecting the wants of the child. In the case of Vikram Vir Vohra Appellant(s) v. Shalini Bhalla,77 mother was claiming custody of the child as she wanted to go to pursue her career in Australia. She requested revoking the visitation rights granted to the husband who then sought permanent custody of the child under the changed circumstances alleging that it is not in the interest of the child to leave India permanently. The respondent mother cannot be asked to choose between her child and her career when she will ensure that the child gets proper education and training to develop his faculties and ultimately to become a good citizen. Separating the child from his mother will be disastrous to both. The custody orders are however not permanent but may be changed with a change in the situation.78 Therefore, the principle of ‘welfare of the child’ remains the guiding principle to determine the child’s custody rights. The Courts always insist on focusing on the welfare of the child and accept it to be the paramount consideration that directs 75 Kumar

V. Jahgirdar Appellant v. Chethana Ramatheertha, 2003 (3) KarLJ 530. Appellant v. P. Anil Kumar (2006) 13 SCC 555. 77 Vikram Vir Vohra Appellant(s) v. Shalini Bhalla, 2010 (4) ALD 65 SC. 78 Rosy Jacob v. Jacob A Chakramakkal (1973) 1 SCC 840; Dhanwanti Joshi v. Madhav (1998) 1 SCC 112. 76 Lekha

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the Court’s discretion in the custody orders even over statutory provisions.79 Even when both the parents are equally placed on the parameter of affection towards their child, the mother will still have a better claim. Especially, when the minor child has not acquired enough emotional strength and stability, required to do many things independently. A mother would be her best help in that regard.80 It is believed that the mother’s lap is God’s cradle for a child and that as between father and mother, other things being equal, a child of such tender age should remain with the mother.81 If the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child.82 Recognition of the father’s absolute right to the custody of the child would render the child an inanimate property or chattel, which could be possessed and used as the owner pleases.83 The Court may or may not be influenced by the fact of the remarriage of the mother.84 If parties decide to divorce by mutual consent, child custody and property settlement can be mutually decided through ADR. Parties may decide to have joint or exclusive custody and as per the collaborative and common consent. The ADR is believed to effectively deal with child custody issues in a consensual and amicable way thus saving time money and resources for disputing parties and Courts.85 The child custody dispute and litigation can be a mean through which the batterer tries to exert control over the battered women even after their separation. Women might experience DV from the batterer husband, institutional abuse by the Courts, and feeling exploited in case the child custody is lost. The batterer may manipulate the proceedings by pretending to be a caring and loving father and proving women to be mentally unstable.86 To win or to use it as a strategy to bargain stakes from the women, he may confidently portray women in a negative light and incapable of being a sole custodian. The women who are yet to recover from the shock of long born abuse, DV and impending separation may not know how to tackle this situation and become panic-stricken, over-sentimental, irritated, and perceived as unfit for this responsibility for it if she is economically dependent. Batterer may use child custody as a bargaining chip to make women apprehensive about losing custody, thereby contaminating the child custody matter.87 A report suggests that attorneys often advised the women not to tell the mediator about domestic abuse as women 79 Gaurav

Nagpal v. Sumedha Nagpal (2009) 1 SCC 42; Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276; Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673; Rajesh K. Gupta Appellant v. Ram Gopal Agarwala and Others, AIR 2005 SC 2426. 80 Devi v. Sandhya, AIR 1985 Gau 97. 81 S. Rukmangathan v. J. Dhanalakshmi (1998) 1 MLJ 628. 82 Saraswati Bai v. Sripad, AIR 1941 Bom 103. 83 Baby Sarojam v. S. Vijaykrishnan Nair, AIR 1992 Ker 277. 84 Deepankai Chatterjee v. Rupa Rao (1989) 2 HLR 1990 (Cal); Sheela v. Jiwan, AIR 1988 AP 275. 85 Pearson and Thoennes (1984, p. 497). 86 Grillo (1991, p. 1581). 87 Haynes (1981).

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who informed mediators about DV received less favourable custody awards. Only 35% of the mothers who alleged domestic abuse got primary custody, compared to 42% in the non-DV group. Also, fathers who were accused of DV were given primary custody in 10% of cases; non-DV fathers got primary custody 9% of the time. We need to research the prevalence of these trends in India to make a better evaluation of this situation.88 Child custody remains a contentious issue that can be dealt with through ADR to protect the interest of the innocent child who may be prevented from being a victim of the courtroom battles. The ADR practitioner can help parties in drafted an MOU as per the parties common decision and keeping in view their requirements about custody, education, obligations, and other needs and expenses. It will help in sustaining post-separation cooperation and contact in future. He tries to tackle the unequal bargaining power among the parties by employing various techniques.89

3.2.6 Financial Arrangements While settling property disputes, women have to fight long battles as parties litigate in the Court for long to get relief. It is often cumbersome for a woman to get redress. The civil Courts are known to be slow and for giving delayed justice. It will be a long wait to get her valid claim. Talking of other countries like the UK, marital property includes property acquired before and after marriage, and a business owned before marriage may also be included. In the USA, marital property includes only that acquired after marriage, except, property acquired by gift, inheritance, and property excluded by valid agreement of the parties. In Singapore, marital property includes assets acquired after marriage, acquired before marriage, assets whose value has increased during marriage.90 While settling the property issues, a woman is permitted under Section 7(1)(c) of the FCA to file a suit for recovery of her ornaments and property. Section 27 of the HMA deals with the disposal of the property presented, at or about the time of marriage, which are jointly owned by both parties. Section 27 provides an alternative remedy to the wife so that she can recover the property without filing a separate civil suit and avoid further litigation. The section covers all the property given to the parties before or after marriage so long as it is relatable to the marriage. The FC has to adjudicate and ascertain the property of the wife before passing a decree against the husband. It cannot decline the wife’s claim for want of jurisdiction to adjudicate upon the issue of property.91 The FC is not entitled to decide the issue relating to 88 U.S. Department of Justice Office of Justice Programs (2004, p. 22) Issue no. 251, NIJ Available at: https://www.ncjrs.gov/pdffiles1/jr000251.pdf (Accessed on March 08, 2020). 89 Haynes (1981, pp. 49–52). 90 The Times of India (April 30, 2013, p. 5) Change to Marriage Law including Immovable Assets, New Delhi. 91 Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam, AIR 1997 SC 3562.

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the return of Stridhan under Section 27 of HMA but under Section 7 of the FCA.92 In K.A. Abdul Jaleel v. T.A. Shahida,93 the question for consideration was if FC has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. It was held that the jurisdiction of a Court created, especially for resolution of disputes of certain kinds, should be construed liberally. The aims should be to give a wife, in case of divorce, an equal share in her husband’s property regardless of if it is acquired before or after marriage and is in the husband’s name or held jointly. In the case of financial arrangements as well, the discriminatory aspect of the legal system is evident. A woman is only the legal owner of her Stridhan.94 Adjudication on the property jointly presented, at or about the time of the marriage, is permitted under Section 27 of HMA but not for return of the ornaments or property belonging to the wife that is presented at the time of the marriage. Since Stridhan is not regarded as joint property, the women are supposed to file separate cases for recovery that will be time taking and a supplementary legal expense. This may be discouraging for the women making things further difficult for her. To make this scenario worst, she may initiate criminal prosecution for criminal breach of trust against her husband or dilatory process of a civil suit which is time-consuming, harassing, and an extreme travesty of justice. All this calls for apt legislation.95

3.2.7 Others Thus, discriminatory personal laws reflect and reinforce the social and economic disadvantages of women and their relative political powerlessness. The abolition of these discriminatory aspects from them would be a positive step in advancing the social, economic, and political development of women. Although the Indian Constitution grants equal rights to its citizens irrespective of their gender and religion, these rights do not extend to personal law. Women often do not retaliate against the DV and ask for divorce because they are not economically independent with no place to go later. Women resign to their fate and endure everything. They remain vulnerable as there are no apt laws to address all these specific issues concerning them. Further, the societal indifference makes them subservient in their approach. In this scenario, the right to residence is an important remedy available to women. Woman is entitled to be maintained by her husband and to remain under his roof and protection. Right to a residence is a part and parcel of a wife’s right to maintenance. They are entitled to separate residence if they are justified due to their husband’s conduct or their refusal to maintain them.96 The PWDVA gives the right to reside in

92 Neel

kanth Jaiswal v. Manju Lata Jaiswal, AIR 2011 Chhattisgarh 6. Abdul Jaleel v. T.A. Shahida, AIR 2003 SC 2525. 94 Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628. 95 P. Maharajan Alias Nadarajan v. Chakalayil Kunju Sarojini, AIR 1988 Ori 175. 96 B.P. Achala Anand v. S. Appi Reddy & Anr., AIR 2005 SC 986. 93 K.A.

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a shared household to a wife.97 Section 19 of the Act provides for the remedy of residence order that is granted by a Magistrate. This right is independent of the woman’s title in the household, whether proprietary or tenancy and secures the right of a woman to reside in a shared household. The Act is a beneficial and welfare legislation that protects the rights of women.98 As per law, if women are forced to evict the shared house, they can approach the protection officer designated under the Act who works under the control and supervision of the Magistrate. However, the definition is not always construed for the larger benefit of women. Some judgements have narrowly construed the meaning of the term shared household and adversely impacted the right to residence in homes that belong to the in-laws even though women lived in that house after marriage.99

3.3 Aftermath of Matrimonial Disputes and Ensuring Healthy Resolutions Divorce is a universal phenomenon and is practiced in most societies. According to the Oxford Dictionary of Sociology, divorce is a formal legal dissolution of a legally constituted marriage. Divorce is derived from the Latin word that means the permanent separation of spouses that is often a life-changing phase for family, children, and both the couple. Though divorce looks like a simple incident, the termination of marital ties can be traumatic experiences in terms of social, psychological, emotional, and economic repercussions on the spouse, their children, family, and society. It has far-reaching effects on the parties and the children. After divorce, the family ceases and suffers a variety of emotional stress and ordeals, especially the women and children. Women may face varied social, financial, emotional, and psychological issues. Children may not always move ahead and suffer tremendous emotional, psychological, and behavioural problems for a long period. A happy marriage is a healthy marriage that has positive interaction among the couple at its core. A true marriage brings happiness to both the partners, their children, and is based on mutual love, trust, and a feeling of respect for each other. Good terms among spouses, mutual companionship, and loyalty are essential with occasional arguments and disagreements being transient. But, constant bickering and nagging are pernicious and harmful to both parents and children.100 As against it, unhealthy marriages are marred with substantial conflicts. Aggressive behaviour by both parties 97 Section 2(s) of the Act defines the concept of shared household, a household where the parties lived together in a domestic relationship before dispute either singly or along with the respondent and includes such household whether owned or tenanted either jointly by the aggrieved person and the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in shared household. 98 Attaullah Mushtaq Kazi v. State of Maharashtra & Anr, 2019 ALL MR (Cri) 2737. 99 S.R. Batra v. Taruna Batra, (2007) 3 SCC 169. 100 Bowley (1948, p. 2).

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leads to increased hostility and aggression and negative effect on children. Although divorce is one of the most serious phenomenon’s that affects families, unexpectedly not much research has been done on its effects on the various stakeholders. It is crucial to know about the impact and implications of divorce on the concerned parties, their children, and the larger interest of the society.

3.3.1 Impact of Divorce on Society The family is an important institution that regulates reproduction, trains children about how to communicate well and cooperate with others, maintain them and socializes them to become a better human being. It provides satisfaction, necessities of life, protection, affection, and love.101 Marriage also a social institution involves social interests in its protection and preservation. Marriage is not only important for the two individuals but for the society and the nation that wants to create a healthy and constructive family.102 In the case of Balwinder Kaur v. Hardeep Singh,103 the SC observed that a divorce not only affects the parties, their children, if any, and their families, but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. The children born out of this union have a legitimate expectation that their respective family has sufficient cohesion that will enable them to grow up without a degree of frustration and instability.104 A happy family is important for the physical and emotional well-being of children.105 Every family is concerned about the growth and development of children and is bound by happiness, strong and affectionate bonds, mutual enjoyment, cooperation, togetherness, and strong spiritual values.106 The Indian families are increasingly becoming nuclear in their structure as a direct result of migration and movement to big cities and metros far from their natal families and hometowns in search of employment. The nuclear family comprising of the couple and their children find numerous options in terms of opting out from asymmetrical marriage thus leading to a greater than ever rates of divorce. The stable nations are embedded in stable families that are dependent on a stable husband and wife relationship. It is also a fact that the flourishing community rests and on stable families so efforts are directed at sustaining relationships. The subsistence of marriage is a concern not only for the couple and their children but for the entire society. Society generally raises objections against divorce. Family friends and relatives reprimand the couple based on not breaking the home and leave the child in despair. Women are strongly advised against taking legal action and adjust as they are often dependent 101 Davis,

K. (1960). (1967, p. 3). 103 (1997) 11 SCC 701. 104 Balwinder Kaur v. Hardeep Singh, Griffith Edward F. (1967, p. 3). 105 Herbert and Jarvis (1959, p. 37). 106 Mudd and Stone (1958, p. 476). 102 Griffith

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on their husbands. The ending of their marriage will make them alone; they will face misery and will have no place to go. They are suggested to adjust as it will be difficult to find another suitable match and even if they could find one for them the possibility of comfortably settling with another man is bleak. Divorces are publicized as being bad for them and dreadful for their children. Thus, the idea of seeking divorce through Court is not acceptable in Indian society and it imposes a burden on the women to make a greater adjustment to preserve their marriage by shrinking the problems they face. The Courts also lean in favour of the preservation of family, and for this, the legal system imposes a duty on the judge to bring about reconciliation in all cases wherein there is the slightest possibility of reconciliation (Section 23 HMA). The growing importance of ADR can be gauged from the fact that these processes are initiated with the basic objective of the preservation of the family by providing an opportunity to the divorcing couples to reconcile their disputes.

3.3.2 Impact of Divorce on Children The family environment teaches a child to be patient, tolerant, accommodative, compromising, cooperative, and respectful. The family is a haven for a child.107 It is his world and paradise. The more the parent–child relationship is positive, secure, and creative on the emotional level, it encourages inner discipline in the child and his development into a contended and useful member of the community. A stable and united family is the foundation of personal worth and maturity.108 Five primary and fundamental needs must be satisfied for successful adjustment to the environment. It includes freedom, discipline and emotional, social, and intellectual outlet. Apart from these three, the two other fundamental needs are for affection and security supplied by parents and essential for the emotional growth of the child. In their absence, the child never feels secure, adequate and may develop delinquent or neurotic traits, has an exaggerated feeling of guilt, and may require psychiatric treatment. He is fearful and grows into an insecure adult.109 Children may facilitate marital stability because parents may want to stay together for the sake of the children fearing that divorce would reduce their involvement with their children and weaker parent’s child bonds.110 Adjustment of children to divorce is another important issue surrounding divorces. After parental divorce, most children and adolescents suffer emotional problem for years.111 It is almost always very distressing for children to see their family break and face feelings of resentment, anger, sadness, shock, disbelief, and abandonment. 107 Manzumdar

in Sehgal and Sherjung (1997, p. 15). (1969, p. 5). 109 Bowley (1948, pp. 20–21). 110 Sharma (1997, p. 147). 111 Sharma (1997, pp. 152–153). 108 Dicks

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These are compounded by a breakdown in household routines, parental task overload, and diminished parenting quality. Adults preoccupation with the ending of their relationship and the consequent emotional, practical, and property issues at stake, makes it difficult for children to avoid being irritable, disengaged, erratic, and, at times, punitive towards their children.112 Children may have a low sense of selfworth, become aggressive, anxious, or depressed, have a drop in their academic performances, and have difficulty sleeping. They may become withdrawn, show temper tantrums, and may start drugs, alcohol, or other addictives consumption. Sexual over activity may increase. They may show a tendency towards sexual offences or come in conflict with the law. Violent adults and aggressors are usually victims of child abuse and familial violence, who were exposed to violence during their childhood.113 Children raised by single parents face economic stress, lower grades, and lower educational qualification. They often work in lower status occupations, earned less income, and enjoyed a lower standard of living.114 Children brought up in broken families show maladjustment or disorganization leading to a great deal of delinquency and psychological disturbances.115 The intolerable environment at home forces them to find their way out in life and escape from unpleasant conditions at home. If such youths cannot find work, they resort to petty thefts and fall victims to bad influences. Children may experience stress and illness related to it, confusion, mistrust, unnaturally good behaviour, taking motherly roles, acceptance of abuse as normal, guilt, isolation, shame, anger, lack of confidence, fear, etc.116 Undoubtedly, children’s welfare lies within the family, with both the parents living under one roof, but this may be untrue in cases of broken marriages. It is far better for the children who are daily exposed to verbal abuse, physical battering, humiliation, and degradation of their mother to be brought up by a single parent.117 Children are the most vulnerable victims of DV as they feel scared and insecure about an uncertain family environment. A woman facing DV may think that she can guard their children against DV, but often, they witness it in a direct or indirect form. In violent homes, a child also becomes a victim of violence inflicted by their raged father or annoyed mother.118 Such family environment harms children evident at every stage of their development and in their personality. Men coming from such families where as young boys who were exposed to DV are more likely to internalize the myth that it is their right to ill-treat the women and she deserved to be abused. On the contrary, girl internalize the myth that there is nothing wrong if her husband beats her, it is the right of the man to ill-treat her, and she deserves to be abused. Hence,

112 Herbert

and Jarvis (1959, p. 37). (2006, p. 139). 114 Amato and Keith (1991, pp. 187–206). 115 Bharat (1988, pp. 227–238). 116 Sharma (1997, p. 94). 117 Jaisingh (1990, p. 4). 118 Pagelow (1990, pp. 346–349). 113 Uberoi

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as an adult, she does not resist the violence and accepts her low status.119 Statistics about delinquency and broken homes do not support the assertion that emotionally estranged parents who stay physically in the same house for the sake of their children do their children any favour.120 A dead marriage that is continued for the sake of the children does not help much as the home is already emotionally broken. So, divorce is likely to be a traumatic experience for a child involved. Children are severely affected by the very fact of their parents divorce and suffer the vast variety of issues mentioned above. They struggle to come to terms with the altered reality, and thus, both parents are needed for the healthy upbringing and nurturing of a child.121 Broken homes are responsible for children committing crimes, but continuing in a broken marriage does no good either.122 Contested divorces can be worse when a partner tries to malign the other to gain the child’s sympathy.123 A mediated divorce can be better than the adversarial and traditionally litigated divorce both for the parents and for the children. The divorce mediation process does not necessarily eliminate all of the problems associated with traditional litigation but can surely help in reducing the tension and stress level.124

3.3.3 Impact of Divorce on Woman and Stress of Being a Single Parent Women are pressurized to stay in the marriage, and if she is disowned by her husband, parents are mostly reluctant in allowing her back. Societal fear of disgrace and unwillingness to accept the lifelong financial liability makes them least inclined towards supporting their daughter for the rest of her life. She is considered a financial burden, and her parents usually abandon her and pressurize her to remain with her husband. Stress due to negative comments received from parents, immediate family, friends, and neighbours and disruption of normal life due to challenges posed by the changed circumstances leads to a negative effect on the physical and mental health of women. Divorce is highly disadvantageous to women.125 The society still believes and preaches the virtues of marrying her entire life time. Remarriage is regarded as a sin, and divorced woman has bleak chances of finding a decent match post-divorce

119 Enough

is Enough-Don’t tolerate Domestic Violence (p. 2). and Jarvis (1959, p. 75). 121 Hindustan Times (March 22, 2013, p. 4) Vulnerable And Lonely: Children Left Scarred For Life, New Delhi. 122 Times of India (February 7, 2020) Most Delinquents comes from Broken Families. 123 Plumb and Lindley (1990, pp. 66–70). 124 Nelson (2011, p. 8). 125 Mukherjee (1997, p. 70). 120 Herbert

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due to clichéd assumptions.126 Separated and divorced women often do not marry, whereas divorced men frequently remarry within few days of divorce. Many young but poor women are readily accessible for remarriage.127 A separated and divorced woman is considered lacking the possession of the biggest virtue of every Indian woman, i.e. self-sacrificing and tolerance. The implication and negative effect of divorce are far-reaching for women as compared to men. Women are considerably more likely than men to experience financial hardship following divorce/desertion.128 The separated single women are socially disadvantaged and face issues like social insecurity and being alone. They are often not supported by natal families and face financial problems and difficulties of sustenance, shelter, food for children, and their educational expense.129 In case of divorce, single families comprising of mother and children face more hardship as compared to joint families or families where parents are supportive.130 The vast majority of lone-parent families, which are 8% of households, are led by women, often juggling paid work, child-rearing, and unpaid domestic work. Since women have to take up employment, manage their finances, the demanding jobs coupled with household work leaves them with less time. Her single-handed management of everything makes her stressed and neglect her children or leave them alone for long hours. The general lack of commodities and activities are significant by-products of divorce.131 Young divorced women who go out to work are habitually regarded as an easy sexual commodity. Separation and divorce split the economic resources of the family, causing an often sharp decline in the household income and standard of living. Post-divorce, most children reside with their mothers; child support awards are mostly low, making the life of women miserable.132 There is not much change in the common perception about the idea of divorce and divorcees still face general disapproval in society.133 They are not welcomed whole heartedly by the society that is intolerable about this phenomenon and attaches informal sanction to it. Constant probing and inquiry become a source of increased mental stress and tension. Divorced women are looked at with suspicion, natal family is not supportive, and she becomes a subject matter of gossip and moral turpitude.134 Society has little sympathy towards her and regards her as disturbed, tainted, and anti-social that should be avoided. A divorcee cannot easily make friends with either an unmarried or a married man as she is considered as a ‘husband snatcher’ thus confining her to a limited social circle comprising of aged, divorced women’s

126 Basu

(2001, p. 239). (1988). 128 Pothen (1986). 129 Singh and Gill (1986, pp. 67–71). 130 Satya (1991, pp. 88–102). 131 Kashyap (1995, p. 148). 132 Sharma (1997, p. 149). 133 Ramachandrappa (2012, pp. 6–9). 134 Pothen (1986, p. 196). 127 Mukherjee

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and widows.135 Loss of friends, rejection, attributing blame, developing elaborate accounts to explain and exclusion from social gatherings and friendship networks are common.136 There is a need to transform families in a way that equality, justice, freedom to choose and voice disagreements are available in physically, finically, and emotionally safe and secure environment.

3.4 Locating the Significant ADR Mechanism for Resolving Matrimonial Disputes 3.4.1 Type of ADR—Primary Techniques and Hybrid ADR Procedures ADR focuses on new and creative methods of resolving disputes. The main modes of ADR are arbitration, mediation, negotiation, conciliation, counselling, and judicial settlements apart from its hybrid forms. Each of these methods endeavours to settle disputes by following their peculiar way that is generically different from the litigations in Court or Tribunal.

3.4.1.1

Classification of Various Techniques of ADR

ADR can be classified in a multiplicity of ways. It can be Bipartite implying that parties negotiate with each other without any help from any third party. It can be Tripartite when a third neutral party assists the negotiation between the parties in conflict but there is no compulsion to accept the resolution presented by him. A Bipartite and Tripartite technique of dispute settlement includes collective bargaining, conciliation, fact-finding, arbitration, and adjudication.137 Again ADR can be Adjudicatory that leads to a binding decision, e.g. expert determination and arbitration. It can be Non-adjudicatory when the dispute resolution is done with concurrence among the parties, e.g. mediation, negotiation, and conciliation. ADR can be Binding when the third neutral party who investigates the dispute, indulges in a formal inquiry, and thereafter decides the dispute, e.g. arbitration. In the Non-binding process, the third neutral party assists the disputing parties to amicably resolve the dispute but does not have the power to decide it, e.g. mediation, conciliation, facilitation, mini-trial. ADR process can be Facilitative when a third neutral party facilitates the dispute resolution process, e.g. conciliation and mediation. It can be Advisory in which the third neutral party investigates the issue gives advice concerning the facts and appraise the probable results, e.g. counselling and evaluation. Lastly, in Determinative, it will include 135 Choudhary

(1988, p. 158). (1997, p. 148). 137 Patil (1977, pp. 8–9). 136 Sharma

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formal hearing and final determination by the third neutral party who investigates the disputes, e.g. arbitration and adjudication.138 Apart from the above classification, ADR procedure can include various other approaches like pre-litigation ADR, selfreferred litigation-related ADR in which the Court is neither involved nor they may be aware of the fact that the parties are using external ADR processes. In the courtconnected or Court integrated ADR, Court referrals by judicial and quasi-judicial officers are involved by the Court and tribunal that employs ADR processes to resolve disputes.139

3.4.1.2

Primary Techniques of ADR

Several ADR methods can be used with lots of flexibility for finding a solution to a dispute at hand. Resolution by each method may focus on the specific problem referred to it or there can be a creative solution to all the related issues.140 ADR procedures like mediation, negotiation, arbitration, counselling, conciliation, and a range of hybrid procedures are often confused with each other but all of them differ in their procedure and their solution finding strategies. Some of the most widely used ADR procedures are: Negotiation Negotiation means a voluntary dialogue between two or more parties to determine their differences and arrive at a mutually agreeable settlement. As per the Chambers English Dictionary, it means ‘to bargain, to confer for mutual agreement or to arrange for by agreement’.141 In the negotiation process, two or more parties communicate with each other to influence the other parties decision.142 It is the art of finding an agreement to end the dispute. In this search for a compromise, during dialogue with each other, each party gives up some portion of its claim to get the rest.143 Negotiation settles disputes by the exchange of problems and viewpoints among the parties. The negotiation is a bilateral non-binding process in which agreements may be reached between the parties on their own, without any involvement of a third neutral party. However, the help of an expert or a skilful person or an agent can be sought in certain specific matters. A good negotiated settlement is based on justice, effectiveness, acumen, and stability. The negotiation process involves four non-rigid structured, informal phases. The first one is Preparation that involves the collection of information relevant for dispute; the second stage is Opening in which both the parties present their opening position. In Bargaining, to constrict the difference and 138 Australian

Law Reform Commission (June 1998, p. 21) ADR-Its Role in Federal Dispute Resolution, Issue Paper 25, Review of Adversarial System of Litigation. 139 Balakrishnan (2008, p. 11). 140 Riskin and Westbrook (1987, pp. 2–3). 141 Chambers English Dictionary (1990, p. 961) 7th edn. 142 Fisher (1991, pp. 127–128). 143 Panchu (2011, p. 39).

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convince, the opposite party to lower their claims and expectations and lastly Closing which means reflecting on the capitalization of the work done.144 The various techniques used during this process include Best Alternative to a Negotiated Agreement (BATNA), Worst Alternative to Negotiated Agreement (WATNA), and Most Likely Alternative to a Negotiated Agreement (MLANTA). Negotiation can be utilized for resolving all forms of issues that involve stressed or sour personal relations. Cases arising out of the pre-existing relationship and where stress is on maintaining the relationship are suitable for negotiation, for example disagreements concerning commerce and contracts, consumer and involving tortuous liability. Negotiation is the main alternative to litigation that settles more disputes than are decided by Courts. To be successful in negotiation, a party needs to be aware of its definite techniques and strategies that relate to their needs, preparation, thought process, and trust. With patience, parties can resolve simply and economically.145 Arbitration According to Russell, ‘the essence of arbitration is that some disputes are referred by the parties for settlement to a tribunal of their choice instead to a Court’.146 Byrne’s Law Dictionary defines arbitration as ‘the determination of disputes by the decision of one or more persons called an arbitrator’. Arbitration is an alternative way to resolve disputes through a private legal procedure. In this mechanism, parties do not file a case in a Court, but refer it to a sole arbitrator or a group of arbitrators who together constitute an arbitral tribunal. This decision of the arbitrator or arbitral tribunal is known as an arbitral award that is binding on the parties. Arbitration is not a new concept to India as some forms of it were present as intervention and decisions by the king and Panchayat. The Bengal Resolution Act of 1772 and 1781 gave an option to the parties to submit their dispute to an arbitrator who will give a binding verdict. The first three enactments on arbitration were the Arbitration Act of 1940 that provided the legal framework for domestic arbitration. The other two being the Arbitration (Protocol and Convention) Act of 1937 and the Foreign Awards (Recognition and Enforcement) Act of 1941 dealing with foreign awards. The adoption of globalization, liberalization, and privatization regime in 1991 and the global development of International Commercial Arbitration paved the way for the repeal of the above three enactments and passing of the Arbitration and Conciliation Act of 1996. Normally, every kind of dispute that involves the private rights of parties (property rights, real estate and construction issues, breach of contract and payment of damages, business and consumer disputes, and issues concerning employment claims) can be determined by the civil Court can be referred to arbitration. However, matters relating to matrimonial disputes (divorce, maintenance), challenge to a will, guardianship of a minor or a person under disability, insolvency and criminal offences, issues concerning charitable trusts, dissolution, or winding up of a company are not referred 144 Sridhar

(2011, p. 163). (2011, p. 42). 146 Russell (1982, p. 1). 145 Panchu

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to arbitration.147 Commonly, commercial disputes are appropriate for reference to arbitration. Judicial Settlement The Black’s Law Dictionary defines judicial settlements as ‘the settlement of a civil case with the help of a judge who is not assigned to adjudicate the dispute’. The judicial settlement is a confidential form of facilitative mediation performed by a judge other than the trial judge to whom the case is assigned for disposal.148 The judicial settlement is in vogue in the USA and refers to a settlement of a civil case with the help of a judge who is not assigned to adjudicate upon the dispute’.149 Section 89 as amended by the Civil Procedure Code Amendment Act of 1999 provides for dispute settlement outside the Court. Order X Rule 1A, 1B, and 1C added by the same amendment further states that if the Court is satisfied by the nature of the dispute that there exist elements of the settlement, it may refer it for a judicial settlement. If it believes that the suggestion or supervision by a judge will be suitable, the Court may refer it to any other judge. The referred judge will try to settle the dispute, and in case the settlement is achieved, he will place it before the Court that referred the issue. The Court will then make a decree according to the terms of the settlement.

3.4.1.3

Hybrid ADR Procedures

The major hybrid forms of ADR procedures are equally important to the ADR regime. In Medola (MEDiation and Last Offer Arbitration)150 the neutral person act as mediator or arbitrator and in case the parties are unable to reach an agreement through mediation, then he will select a final negotiated offer for parties that will be binding on them.151 An Expert Determination is similar to arbitration because the third neutral person is an expert in a particular field and just like an arbitrator he decides on the issues. In Early Neutral Evaluation that is conducted at an initial stage, the parties are given an early and private evaluation of the merits of a dispute. Mini-Trial is a process in which a tribunal is constituted with a neutral person deputed as the chairman. Within a limited period, the parties are required to make a presentation before the tribunal. The tribunal will make a non-binding evaluation that will form the basis for negotiations or conciliation between the parties thus reducing cost and time. The Mini-Trial process is suitable for large and complex disputes that will take longer than conciliation or Early Neutral Evaluation, but it may be very useful in those cases in which a substantial period will be taken for hearing by a Court or arbitrator. 147 Kwatra

(1999, p. 9). (2013, p. 367). 149 Afcons Infrastructure Limited and Another v. Cherian Varkey Construction Company Private Limited and Others, (2010) 8 SCC 24. 150 Arnold in Rao and Sheffield (2002, p. 212). 151 Rao and Sheffield (2002, p. 26). 148 Paranjape

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Further, the Med-Arb process merges some features of mediation as well as arbitration. A third neutral person performs twin roles. First, he mediates and assists the parties to consent to resolve most of the issues and thereafter based on the parties’ agreement arbitrates or decides the remaining issues. In the Neutral Listener Agreement, the disputing parties confidentially discuss their respective best settlement offer with a neutral third party. After assessing the offers, the neutral person suggests settlements for the parties who try to negotiate a resolution. Rent a Judge involves parties consensually appointing a referee who is mostly a retired judge. In an informal proceeding, parties present their case and the referee judge gives his decision that is enforceable in a Court of law. The parties will bear the fee of the process. The Final Offer Arbitration is a process in which each party submits its monetary claim before a panel that renders its decision by awarding one and rejecting the other claim (Table 3.1).152

3.4.2 ADR in Focus In India, we are witnessing growing confidence in the use of ADR methods for resolving a variety of cases and in particular the matrimonial disputes. Various techniques may be utilized for conflict resolution. The three most important techniques for dealing with disputes relating to marriage are discussed in this section. During the process of this dealing, negotiation and reconciliation between both parties remain central. Though in a court-annexed ADR process, the parties get every kind of assistance but legal advice is required for cases concerning separation and divorce as parties are often ill-equipped to manage their negotiations and advocates advise them about the settlement. A great many divorce settlements can be achieved in this way.153

3.4.2.1

Counselling

Counselling means when one individual seeks out another to assist him in his ‘research of reason’, in an attempt to find the means to the solution of a problem.154 Matrimonial counselling may be defined as the process through which a professionally trained counsellor assists a person or persons to resolve the problem that troubles them in their interpersonal relationships. The focus is on their relationship.155 Counselling is both an art and a science that aims to resolve difficulties and brings about changes in thoughts and emotions.156 Counselling appraises the parties about their 152 Srivastava

(2001, p. 60). (1997, p. 4). 154 Fonesca (1966, p. 207). 155 Mudd and Stone (1958, p. 59). 156 Scott (2020, p. 5). 153 Parkinson

Formal and governed by Less formal and the laws and procedure governed by A&C Act

Decision is binding

Non-confidential

Limited options

Focus is on past events

Appealable

Time consuming

Advocate/Lawyers required

Formal Rules

Decision

Confidentiality

Options

Focus

Appealable

Time consuming

Service of Advocate/Lawyers

Advocate/Lawyers required

Non Adjudicatory process

Mediation

Binding and non-appealable

Focus is on present and future events

Flexible and solves several disputes

Confidential

Non-binding unless mutually accepted

Informal and parties decide the procedure

Advocate/Lawyers not required

Advocate/Lawyers not required

Less time consuming

Decree/order is binding and non-appealable

Focus is on present and future events

Flexible and solves several disputes

Confidential

Non-binding unless mutually accepted

Informal and parties decide the procedure

The mediator facilitates The Conciliator the parties proactively facilitates parties

Negotiation process

Conciliation

Comparatively less time Less time consuming consuming

Limited recourses available

Focus is on past events

Award is like a decree of the Court

Confidential

Award is binding

The judge presides over The Arbitrator presides the dispute over the dispute

Who presides

Arbitration Quai judicial adjudicatory process

Adjudicatory process

Process

Litigation

Table 3.1 Comparison between Litigation and different Modes of ADR

(continued)

Advocate/Lawyers not required

Less time consuming

Non-binding

Focus is on present and future events

Flexible and solves several disputes

Confidential

Non-binding unless mutually accepted

Informal and parties decide the procedure

The Parties decide for themselves

Conducted by parties by giving offers and counter-offers

Negotiation

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Litigation

Costly

No judges decide

Defeating/competing and no direct communication

Win-lose remedies

Cost

Parties decide

Communication

Remedy

Controlled by judges

Control

Table 3.1 (continued) Arbitration

Conciliation

Win some-lose some remedies

Defeating/competing and no direct communication

No Arbitrator decides

Costly

Mediation

Parties decide

Economical

Controlled by parties

Win-Win remedies

Win-Win remedies

Compromise and direct Compromise and direct communication communication

Parties decide

Economical

Controlled by arbitrator Controlled by parties

Negotiation

Win-Win remedies

Compromise and direct communication

Parties decide

Economical

Controlled by parties

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situation and facilitates resolving problems through a face-to-face personal relationship with the counsellor. As an important component of ADR, counselling involves talking with the person for settling issues and searching for adjustment. It is a mechanism that addresses disputes through the agency of counsellors. Counsellor tries to settle the disputes among the aggrieved parties by providing speedy justice at a low cost. Counselling enables a person to sort out issues and reach decisions affecting his life. It involves talking with the person for helping him to solve a problem and improve his behaviour, character, values, or life circumstances. Mankind seeks ways of improving adjustment and enriching life. Professional skills are employed to assist the couple so that they can explore, evaluate, clarify, communicate, and choose an action for the resolution of their problem. The parties and the marriage counsellor try to develop a better understanding of the self, the opposite party, and the relationship.157 The counsellor probes all the facts, identify the dispute, explores options, finds an agreeable solution, and shaping it in a legal form. All this requires enormous patience as the parties tend to hide facts and sometimes they are unaware of the real root cause of the dispute. Empathic listening and probing for long hours reveal the actual problem.158 Depending on the set of procedures or steps, counselling can be of different types. The Counselling process may involve, the establishment of rapport, i.e. development of a close understanding and confidence on the part of the counselee and the counsellor. There will be a reduction of hostility and ventilation of feeling that involves the development of insight and objectivity in the counselee and reorientation towards his problems and the situation. It helps in the development of a new or different relationship to the person or persons involved and the implementation of new objectives.159 Therefore, after the initial interview the counsellor opens communication between partners. The counselling procedure can have the following stages of fact-gathering (for forming the accurate picture of the client’s situation), making choices (that the client determines as a result of counselling what he wants to do or what course of action he has to follow), and decision (the lawyer-counsellor has to work with the client to come to a decision). Privacy is the counselling prerequisite. The place where matrimonial counselling is done is out of the reach of the listening ears of others. Enough time must be allowed so that the discussion is effectively carried out. In setting the tone for the interview, the counsellor should create a permissive atmosphere for the parties who have difficulty expressing themselves.160 He should develop the quality of active listening (listening to the situation empathetically). The counsellor should be free from prejudices.161 He should possess the power of observation concerning the client, an interest in people, and a desire to be of help and have the ability to listen. He must be able 157 Ard

and Ard (1969, p. 5). (1997, p. 30). 159 Mudd (1951, pp. 43–45). 160 Venables (1971, p. 9). 161 Cavanagh (1963, pp. 6–7). 158 Goel

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to understand the possibilities. He should be able to communicate his feelings and understanding to the client. Acceptance of people is another essential characteristic of the counsellor. The interview should centre on the client and his experience only. Above all, the professional counsellor should show warm human responsiveness and understanding of human differences.162 In India, counselling has been developed and given legal recognition under the FCA (Section 4—Appointment of Judges; Section 6—Counsellors, officers, and other employees of FC). The Act under its Section 9 states that the court-annexed FC will make every effort to settle the matrimonial disputes presented in front of it by reconciliation. For this purpose, FC has trained family counsellors attached to it. As per Section 4 while appointing judges, effort must be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children. The appointed person should be qualified because of their experience and expertise to encourage settlement of disputes by conciliation and counselling with preference to be given to women. It is believed that matrimonial counselling must be attempted before litigation as it is the stage when the polarization has not taken place. Allegations are vague, and the parties may be more willing to adjust. It will prevent litigation as once the litigation commences parties may take extreme positions due to allegations and counter-allegations with no hope of return. Once the matter goes to Court, the parties are not in a frame of mind to agree to a settlement. The real need is to have the adequate availability of counselling services before litigation.163

3.4.2.2

Mediation

Mediation (Latin medius, medium) means ‘in the middle’. According to L.B. Curzon‘mediation is the act of a third party relating to the settling of a dispute between two contesting parties’. In this process, a third neutral unbiased party assists the disputing parties to arrive at a resolution. There are four key values of the mediation process, Viz. to promote self-actualization and self-determination; individual responsibility of parties; to understand the opponents experience; and to acknowledge and act as per that understanding.164 In the case of family mediation, a mediator helps couples in settling issues regarding separation and divorce. They can intervene at any stage of the dispute to settle adoption, inheritance, and other family disputes. The process does not follow the cumbersome procedural law, but adherence to the fundamental principles of natural justice makes it one of the important alternate means of dispute redressal. Parties have the freedom to exchange and contend their views during mediation between them by avoiding complications and strict procedural laws having 162 Mudd

(1951, p. 179). (1991, p. 16). 164 Blaustone (1994, pp. 258–259). 163 Bakshi

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enormous technicalities. Parties put their efforts in the friendly settlement of disputes, and a mediator acts as a catalyst that induces the contending parties to settle depute amicably.165 Historically, mediation has existed in every traditional society. Records show wellorganized systems for managing conflicts within families, clan, tribes, and villages to maintain the equilibrium of the social system.166 Every developed and developing nation had a long tradition of mediation including Africa, China, the USA, UK. Today, among all the ADR techniques, mediation is the most widely used mean of dispute resolution. In India as well, of the several ADR techniques, mediation has traditionally existed. The writings by Kautilya suggested that to prevent discontent, which finally leads to disputes, the conciliation method shall be used.167 At the community level, Panchayat used to resolve the disputes through mediation. However, the breakdown of traditional societies buried these institutions. In 1996, the Institute for the Study and Development of Legal Systems USA was invited to participate in a national assessment of the backlog in the civil Courts and to study the causes of delay in India.168 The focus came to Section 89 of the CPC and the need to fully realizing it for reducing the pressure on the Court system. Box 3.3: Mediation Under Section 89 of the Code of Civil Procedure (Amendment) Act, 1999 The legislature by the Code of Civil Procedure (Amendment) Act, 1999, amended Section 89 of the CPC with effect from 1.7.2002 whereby mediation was envisaged as one of the modes of settlement of disputes. The amendment in Section 89 was made on the recommendation of the Law Commission of India and the Justice Malimath Committee. It was recommended by the Law Commission that the Court may require the attendance of parties to the suit or proceeding to appear in person to arrive at an amicable settlement of the dispute between them and make an attempt to settle the dispute amicably. Justice Malimath Committee recommended making it obligatory for the Court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation, or judicial settlement through LokAdalat. It is only when the parties fail to get their disputes settled through any of the ADR methods that the suit could proceed further. Thus, Section 89 has been introduced to promote ADR. The Supreme Court of India upheld the constitutional validity of the new law reforms in the case filed by Salem Advocate Bar Association v. Union of India169 and 165 Tripathi

(2005, p. 286). and Brogan (2006, p. 23). 167 Mohta and Mohta (2008, pp. 534–535). 168 Available at: http://delhimediationcentre.gov.in/history.htm (Accessed on July 24, 2020). 169 Salem Advocate Bar Association v. Union of India, (2003) 1 SCC 49. 166 Spencer

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appointed a committee to suggest and frame rules for implementation of mediation procedures in civil Courts. From 2007 onward, the process of mediation commenced with the court-annexed mediation centres functioning in the various trial Courts in many districts in India.170 The mediation programme started in Delhi District Courts in the first week of August 2005 with the help of the Institute for the Study and Development of Legal Systems.171 The Mediation and Conciliation Project Committee was constituted to encourage amicable resolution of disputes pending in the Courts per Section 89 of the CPC. A pilot project of judicial mediation in Delhi district Court started in 2005 whose success led to the setting up of a mediation centre at other Courts. The court-annexed mediation programme, i.e. mediation with the authority of the Court, is now widely practiced in India. The cases pending in Court are referred by the Court for mediation. As previously mentioned, Section 89 of CPC casts a duty on the judge to identify appropriate cases in which an amicable mediated settlement can be reached at. The mediator appointed by the Court facilitates the disputing parties in settling the issues and reducing the terms into writing to be signed by both or all the disputing parties and the mediator. These terms of the settlement or MOU are then forwarded to the referring Court for an appropriate order. Mediation can be applied to resolve disputes concerning personal injury, commercial litigation, family matters, and medical malpractices.172 It can resolve some of the issues and leave the rest to be dealt with by the Court. Mediation can resolve every issue in connected proceedings elsewhere also. It resolves issues that have not yet been raised in any Court and the parties’ consent for it. Some of the issues can be a part of arbitration [Med-Arb].173 In the case of Afcons Infrastructure Limited and Another v. Cherian Varkey Construction Company Private Limited and Others,174 discussing the scope of Section 89, the Court pointed at the specific areas, appropriate stage, and the procedure that needs to adopted during this process. The Court suggested that cases relating to trade, commerce, contracts, consumer disputes, and torts can be mediated. Reference to mediation by the Court is possible at virtually every stage of litigation, including after filing of papers, at the trial stage, or the appellate stage. However, some disputes are not fit for reference to mediation. It includes cases in which there is a severe imbalance between the parties in terms of strength and resources, which reflect correspondingly in their negotiating ability (a battered woman in marriage) the only Court, should decide.175 Mediation can be of various types. It can be Evaluative Mediation that is often used in monetary agreements and involves a realistic view of the negotiating positions and legal aspects of the dispute. In the case of Transformative Mediation, 170 Mediation

Training Manual of India (pp. 7–8). (2006, p. 35). 172 Sharma (2001, p. 787). 173 Ramanathan (2012, p. 7). 174 Afcons Infrastructure Limited and Another v. Cherian Varkey Construction Company Private Limited and Others, (2010) 8 SCC 24. 175 Panchu (2011, p. 187). 171 Sinha

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the focus is on the underlying cause of the dispute and the nature of the relationship. The decision-making is controlled by the mediator who fosters empowerment and recognition. In Facilitative Mediation focus is on problem and identification of interest during caucus and impasse or a deadlock is broken when parties stick to their positions.176 The other forms of mediation are Narrative Mediation (based on stories built by disputants about conflicts), Insight Meditation (challenges expectations and assumptions and are relationships centred rather than problem-centred) Consultative Intervention (mediation world view of disputants and external intervention unravels the conflict based on self-reflection) and Strategic Mediation (addresses the fundamental dysfunction that fuels the conflict with a focus on communication and understanding).177 Mediation can be classified as Private Mediation in which qualified mediators offer their services privately to the general public and on payment of the fee. Private mediation can be conducted for disputes pending before the Court and in pre-litigation disputes. In Consensus Building, mediation certain matters of general public interest like pollution that will affect the public in general can be dealt with. Such disputes may require public consensus building and the mediator may be helpful.178 Box 3.4: Amendments to make Mediation Effective The Consumer Protection Act, 2019, Chapter V Section 37-38 provides for consumer mediation cells. India is a signatory to the United Nations Convention on mediation (the Singapore Convention), which gives mediation settlements the force of law. In 2018, the amendments were made to the Commercial Courts Act 2015 that stated that before instituting the suit, parties were mandated for exhausting the remedy of pre-institution mediation. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules 2018 stated that settlements arrived during this process will be enforceable by law and to count the limitation period, the period of mediation will be excluded thus providing a provision for helping dispute resolution. The Court has now suggested the government to consider the feasibility of enacting an Indian Mediation Act. Mediation is referred to as an informal but structured process with four functional stages. The first stage is known as Introduction and Opening Statement in which the mediator introduces himself, explains the mediation process, establishes his neutrality, and explains the ground rules. The second stage is that of a Joint Session in which the mediator gathers information about the parties’ background and their interest. He tries to create an environment in which both parties can feel confident and start interacting. All this is required for an amicable settlement. In the third stage of the Separate Session mediator will permit the disputing parties to explain their 176 Riskin

(2003). (2012, p. 8). 178 Mediation Training Manual of India (p. 18). 177 Ramanathan

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grievances, will gather more information, and will persuade the individual party to share the confidential information so that he can assist them in creating options for a mutual settlement. Lastly, in Closing or agreement, the mediator will confirm and clarify the terms of the settlement. In the end, the mediator will reduce the settlement into a clear, complete, concise, and binding agreement. These functional stages are used informally and flexibly so that the mediation process gains momentum.179 The mediator helps the parties to negotiate options and solutions for an acceptable agreement. The parties modify their positions; options are traded and bargaining occurs. Thus, the generic process of mediation includes nine stages that include recognizing the problem, choosing the area in which to settle in the problem like mediation, selecting the mediator, gathering the data (fact-finding), defining the problem, developing options to solve the problem, redefining positions to rationality, bargaining, drafting the agreement, and drawing memorandum of understanding.180 Mediation offers several advantages. It is speedy, less costly, informal, economical, and the process can be completed within a short duration of time. Reference to mediation by the Court is possible at virtually every stage of litigation, including after filing of papers and before the case is processed for litigation. When a matter comes up for interim orders after making interim orders, at the stage of framing issues, at the trial stage, at the appellate stage cases pending in the list of long causes.181 It offers a range of settlement options without the need for hiring advocates. Parties can confidentially and freely interact with each other, avoid complicated procedural laws and technicalities and offer a win-win solution.182 The mediator facilitates communication, but the parties retain their control throughout by directly participating in the negotiation. Since the outcome in mediation is self-determined, it has more compliance rates from all the parties.183 In case a settlement is arrived at in the court-annexed mediation, the Court fees paid is refunded as per rules.184 The mediated agreed terms of the settlement are usually confidential and mutually acceptable.185 The process does not prejudice any party, and all the parties are free to refuse offers made in mediation. They can walk out without the risk of anything being held against them in case the Court later, i.e. if the Court determines the dispute. Mediation is a voluntary process, and the mediator cannot make or impose any binding decision but helps them to define their problem and find solutions, to coordinate their activities, and effectively bargain.186 Mediation gives prominence 179 Mediation

Training Manual of India (p. 24). and Charlesworth (1996, p. 2). 181 Panchu (2011, p. 256). 182 Riskin and Westbrook (1987, pp. 2–3). 183 Fisher et al. (1991, pp. 177–187). 184 Mediation Training Manual of India (pp. 18–19). 185 Goodman and Harmmerton (2010, p. xvii). 186 Justice M. Jagannadha Rao (2003) Concept of Conciliation and Mediation and their differences. Papers Presented in International Conference on ADR and Case Management (May 3–4) organized by Law Commission of India. Ministry of Law and Justice. Government of India. New Delhi. 180 Haynes

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to parties and allows them to make decisions that are best suited. Mediation is also referred to as assisted negotiation as the mediator encourages the parties to a dispute to characterize the problem and find a solution for themselves by bargaining in their interaction with the disputants.187 Mediation is an extension of the negotiation process as it extends the bargaining during the interaction of the contesting parties.188 Mediation is also defined as a voluntary and facilitative process in which disputing parties engage the assistance of an impartial third party (the mediator) who helps them to try to arrive at an agreed resolution of their dispute. A mediator is a neutral person who uses specialized communication and negotiation techniques for facilitating parties in resolving their disputes.189 He does not adjudicate arbitrate or judge the dispute.190 The mediator has no authority to make any decisions that are binding on them rather he uses certain procedures, techniques, and skills to help them to negotiate an agreed resolution of their dispute without adjudication,191 in contrast to the arbitrator or judge.192 He is not required to follow the procedural law, but he is expected to observe the fundamental principles of natural justice. He creates an atmosphere under which parties can resolve their disputes by reaching the underlying root cause of disharmony and discontent and by creative remedies which would be helpful to both parties.193 Often the process of conciliation and mediation are confused and used interchangeably. However, they are different from each other as in the conciliation process; the neutral third party plays a more effective role in putting forward his known suggestions for the settlement of the disputes. In the mediation process, parties resolve their disputes by getting to the fundamental cause of disharmony with a focus on finding a creative solution that will be suitable for both. The mediator can be appointed by the consent of the parties or by the Court’s assistance.194 The decision-making powers remain with the parties, and the mediator facilitates the process.

3.4.2.3

Reconciliation

Conciliation is a friendly settlement of disputes or a compromise. As per the Merriam Legal Dictionary, it is the settlement of a dispute by mutual and friendly agreement to avoid litigation. Conciliation is the practice by which the services of a neutral 187 Christopher

W. Moore quoted in Relevance of Mediation to Justice Delivery in India, Paper presented by Justice M.M. Kumar in the National Conference on Mediation, organized by the Mediation and Conciliation Project Committee, Supreme Court of India, New Delhi (July 10, 2010). 188 Tripathi (2005, p. 286). 189 Knowing and Encouraging Mediation: Court Integrated Mediation. 190 Brown and Mariot (1997, p. 127). 191 See Footnote 191. 192 Goldberg et al. (1999, p. 123). 193 Annual Report of Delhi Mediation Centre (2005–2006). 194 Rao and Sheffield (2002, p. 24).

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third party are used in a dispute as a mean to help the disputing parties to reduce the extent of their differences and to arrive at an amicable settlement or agreed solution (International Labour Organisation (1983) Convention no. 87 and 98). It is a process of orderly or rational discussion under the guidance of the conciliator. Today, conciliation has become a highly specialized tool for the settlement of disputes in countries like the UK and the USA.195 In India, conciliation is as old as Indian history. It is ingrained in Indian culture and mentality.196 As discussed, Section 89 of CPC contains a provision that enjoins a duty on Courts to make efforts to assist the parties in arriving at a settlement. The section permits the Court to refer a dispute for conciliation even where parties do not consent (provided the Court thinks that the case is one fit for conciliation). Conciliation is now statutorily recognized under the Arbitration and Conciliation Act 1996 (hereinafter A&C Act), that provides the law concerning Conciliation in Part III (Section 61 to 81). The Act does not define conciliation, but the way it should be practiced in the disputes arising out of a legal relationship whether contractual or not, and to all proceedings relating thereto can be conciliated. During the conciliation process, the conciliator, a neutral third person assists in discussion and guides the parties in reducing their differences for amicable settlement of disputes. The conciliator may express his opinion about the merits of the disputes. He can make ‘proposals for a settlement’ and ‘formulate the terms of a possible settlement’ or ‘reformulate the terms’ in Section 64(1) and Section 73(1) of the A&C Act. The conciliator may persuade both parties to mutually discuss the subject matter of the dispute and its underlying reasons. During the process, he helps the parties to evaluate their risks and choices and amicably settle them all by making some adjustments and accommodating the need of the opponents so that cordial relations can be maintained. The conciliator plays a proactive role during this entire process. Conciliation is more successful when a dispute or controversy between the parties arises and the parties with free will decide to resolve the dispute. The intention of parties to have a solution through the constructive help of a conciliator and to achieving a long-lasting solution to the problem gives impetus to the resolution of disputes.197 Conciliator reduces tension, improves communication, interprets issues, and backs them in exploring solutions for bringing about a voluntary, amicable, negotiated settlement. This conciliation agreement is legally acceptable in every Court of law. Conciliation is advantageous as it does not restrict the chances of parties defending their cases or one or the other party being dominated by anyone. Conciliation is voluntary, economical, non-binding, and involves less risk to the parties than adjudication and arbitration.198 It is non-coercive, recommendatory and suitable for all civil disputes provided parties are eager for an early settlement without overlooking their

195 Rao

and Sheffield (2002, p. 42). (2005 p. 42). 197 Bansal (2005, p. 28). 198 Patil (1977, p. 14). 196 Singh

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interests.199 Conciliation can be applied in most cases without risking the fairness and finality of settlements.200 It is an informal process with a milder form of third party intervention in which the conciliator cannot impose terms of settlements.201 The conciliation process allows the parties to be more directly involved in the resolution of the dispute so the party retains freedom of action concerning initiating conciliation, adapting the proceedings to their particular case, and discontinuing any seemingly futile attempt at conciliation. The settlement reached binds the parties, and it shall have the same status and effect as if it is an arbitral award under Section 30 of the Act. Conciliation with the help of third parties is believed to be a primary method of bringing about an amicable settlement and enables parties to resume their relationship. For this purpose, we, in India, have to draw benefit from the practices of countries in which methods of conciliation have already become a developed art.202 Conciliators have the experience and competency to objectively and impartially resolve a dispute with patience and integrity. A conciliator works in a dual-party or multi-party contest, and he has to be an excellent facilitator.203 Conciliation and settlement are statutorily recognized remedial mechanisms in family disputes long before part III of the A&C Act was enacted. In the context of matrimonial disputes reconciliation implies the act of reuniting. It is a process that brings the parties together and a third neutral, impartial person guided by the principles of impartiality, equity, and justice settle their dispute. If the process is successful, the settlement agreement is recorded and signed by the parties thus transforming a contentious situation into conciliation.204 Reconciliation is an act of reaching fully considered decisions in an atmosphere of calm consideration rather than tension and hostility.205 It is usually done by the judges/judicial officers of the concerned Court. For the amicable resolution of the disputes, parties undertake discussions under their guidance. Usually, the parties are initially reluctant and show retribution when referred to reconciliation. They think that it would be unwise on their part to participate in such a process and forget all his wrongdoings committed over the years. Thus, the judges have to make an earnest attempt on their part to bring reconciliation.206 Indian Courts too lean strongly towards family arrangements so that peace and harmony are maintained and justice is done to other members by avoiding future disputes.207 In every matrimonial dispute, the legal provisions mandate for attempting 199 Bansal

(2005, p. 20). (2005, p. 20). 201 Rao (1963, p. 36). 202 Singh (2009, p. 525). 203 Bansal (2005, p. 21). 204 Kwatra (1999, p. 39). 205 Parkinson (1997, p. 7). 206 Goel Manju (March 2005) Successful Mediation in Matrimonial Disputes: Approaches, Resources, Strategies and Management, Paper presented at First Advanced Course on ADR Methods Organized by National Judicial Academy, Bhopal. 207 Krishna Beharilal v. Gulabchand, AIR 1971 SC 1071. 200 Bansal

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matrimonial reconciliation. The sanctity of marriage is the cornerstone of civilization, and the state is interested in the security and preservation of the institution of marriage through mutual dialogue. The Court can make effort for reconciliation at any stage.208 The SC appreciates all such efforts of the ADR centres that help the parties to arrive at a settlement.209 The familial justice concerns must be met with sensitivity to yield better results and attempted before initiation of litigation. Apart from judges who are doing mandatory reconciliation, it is a practice followed by police and crime against women cell. The attempt must be made in the beginning and not at the end.210 In India, various laws have made reconciliation a mandatory process.211 Moreover Section 8 of the FCA excludes family disputes from the regular Court’s jurisdiction. While considering an application for dissolution of a marriage by a decree of divorce, the Court shall have regard to the interests of children and if there is a reasonable probability of reconciliation between the parties (Section 14(2)). Before granting a divorce, duty is cast upon the Court of the first instance to attempt at reconciliation and settlement of the dispute. But before arriving at this decision, the case facts are considered to ensure that no prejudice is caused to the substantive rights of the parties. There is a good number of case law that establishes that the judge must attempt at reconciliation.212 These judicial pronouncements have strengthened the concept of ADR in the family disputes domain. The Indian Courts strongly lean in favour of familial harmony, justice for its members, and avoiding future disputes.213 Commenting on the trend of a huge number of divorce or judicial separation cases case is flooding the Courts have stressed making efforts to bring about conciliation for bridging the communication gap that lead to such undesirable proceedings. The Courts leaned in favour of bringing about conciliation to save the marriage, especially in cases where the children are involved as they will bear the brunt of the dissolution of marriage.214 The Court should reconcile the parties unless the breakdown is irreparable.215 The Court must consider the matrimonial matters with human angle and sensitivity.216 The objects and reasons for setting up of FC emphasise conciliation.217 The Courts have observed that the judge should stimulate the compromise process of a ruptured marriage as his first duty. Thus, there is a growing emphasis on the requirement of attempting mandatory meaningful reconciliation and out of Court settlement against litigation.

208 Love

Kumar v. Sunita Puri, AIR 1997 P&H 189. Bhatla v. Bhavana Bhatla, 2009 SCC (3) 448. 210 Jaswinder Kaur v. Kulwant Singh, AIR 1980 P&H 220. 211 Section 14 and Section 23 of the HMA and Section 29 and Section 34 of the SMA attempts at reconciliation between parties. 212 Sangeetha v. Suresh Kumar, JT 2000 (8) SC 527. 213 Krishna Beharilal v. Gulabchand, AIR 1971 SC 1071. 214 Gaurav Nagpal v. Sumedha Nagpal, AIR 2009 SC 557. 215 Naveen Kohli v. Neelu Kohli, AIR 2006 SC6. 216 Jivubni v. Ningappa Adrishappa Yndwad, AIR 1963 Mys 3, 4 & 5. 217 Baljinder Kaur v. Hardeep Singh, AIR 1998 SC 764. 209 Aviral

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Unlike the other ADR mechanism, the process of conciliation is not gaining much popularity. This is due to the concentration of this process to few sectors only like family disputes, labour disputes, and few commercial disputes. Secondly, even the statutory recognition of this mechanism under the A&C has not made any big changes in its functioning. Thirdly, the conciliation process is procedure-oriented though theoretically required to be flexible. This takes the process away from the general people, and so, masses do not have access to it except in few forms of disputes.218 Lastly, for reconciliation the presiding, judge must make his efforts at finding out the truth and he must, for that purpose, take the initiative, without depending on the parties and must actively conduct the trial, while the presiding judge is not expected to investigate the facts he actively participates in the trial. In case there are gaps, obscurities, conflicts, or inconsistencies regarding the essential facts, the judge should make his efforts to ascertain the truth.219

3.4.3 Indian Laws for Resolving Matrimonial Disputes Through ADR The ADR is now established as a fundamental element of our justice administration and judicial system. It offers numerous advantages in terms of reducing caseload and increased satisfaction to the parties among others. Under the Indian legal system, several ADR-related provisions are steadily incorporated under various laws. Quite a lot of amendments passed during the last decade are progressively giving life to new ways to diversify ADR. To begin with, the IPC contains a long list of offences that can be compounded or compromised with the permission of the Court dealing with those pending cases.220 Further, the Police Act, 1861 contains rudiments of ADR that gives authority to police officers to resolve certain disputes at the police station itself. In Section 16 of the Court Fees Act of 1870, a provision for the refund of the fee is stated.221 The Indian Contract Act of 1872 permits reference of future as well as existing disputes to arbitration. Section 28 renders an agreement void if it restraints legal proceedings and Exception 2222 to this section mentions about ‘Arbitration Agreement’ as an exception to Section 28. Sections 63 (promisee may dispense with or remit performance of promise) provides for encouraging mutual settlements 218 Khan

(2006, p. 22). (1991, p. 18). 220 Section 324, 337, 343, 344, 354, 379, 403, 406, 417 and 482. 221 It states that if the parties referred by Court to any one of the modes of dispute settlement in Section 89 of CPC, the plaintiff shall be entitled to receive back the full amount paid in respect of such plaint. 222 This section will not render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which have already arisen, or affect any provision of any law in force for the time being as to references to arbitration. 219 Bakshi

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through ‘accord and satisfaction’. Further, the Industrial Dispute Act, 1947 makes provision both for settlement of the dispute through conciliation and arbitration. Conciliation is given statutory recognition by prescribing detailed procedures for resolving a dispute between workers and the management. Section 4 of the Act prescribes the appointment of a conciliator who will mediate and promote the settlement of industrial disputes. Sections 12 and 18 of the Act provide for settling disputes through negotiation, mediation, and conciliation before resorting to litigation. In the wake of huge pendencies in the Criminal Court, the CrPC and the Criminal Law (Amendment) Act 2005 introduced the idea of plea bargaining by inserting Chapter XXIA (Section 265 A to 265 L). The concept was mooted in the 142nd, 154th, and 177th Reports of the Law Commission of India. Plea bargaining in the framework of a criminal case is a process in which the accused and the prosecutor work out a mutually satisfactory disposition of the case. The defendant may plead guilty in return for a lighter sentence subject to Court approval. The Administrative Tribunals Act of 1985 aims to settle disputes regarding service conditions through simple and speedy methods. The Consumer Protection Act of 1986 settles consumer disputes effectively and quickly by constituting a redressal forum at the district level, state level, and national commission. Following this trend, the A&C Act provides for the two modes of ADR, i.e. arbitration and conciliation, for resolving disputes arising out of a legal relationship, whether contractual or not, and to all proceedings relating thereto. Section 30 corresponds to Article 30 of the UNCITRAL Model Law and Article 34 of the UNCITRAL Arbitration Rules. It prescribes the use of mediation, conciliation, or other procedures during the arbitral proceedings. The Legal Services Authorities Act, 1997 (hereinafter LSAA) that is based on Article 39A provides free and competent legal services to the weaker sections of the society. The section promotes the ideal of justice, ensures speedy trial, provides for the organization of Lokadalats, and mandates a pre-litigation method for reconciliations and resolution of cases. The ADR and Mediation and Conciliation Rules, 2004 are the results of the committee report constituted after Salem Advocate Bar Association v. Union of India.223 Some of the important rules are Rule 2, Rule 4, Rule 8, Rule 10, and Rule 15. In the context of matrimonial disputes, the ADR is recognized under different Laws. Firstly, the preamble to FCA was enacted to promote conciliation and secure speedy settlement of all disputes concerning family and marriage and matters connected therewith. It provides for establishing FC that will adopt an approach fundamentally different from the one that is followed during the ordinary civil proceedings224 and to make efforts for settlements. Again, the CPC under its Order 32-A which relates to suits concerning family matters enjoins a duty upon the Court to make efforts for settlement. Section 14 of the PWDVA directs the parties, i.e. respondent or the aggrieved person to undergo counselling at any stage of the proceedings. The Courts in India lean strongly in favour of the preservation of the family unit; for this, it makes it

223 Salem 224 K.A.

Advocate Bar Association v. Union of India (2003) 1 SCC 49. Abdul Jalees v.T.A.Sahida (2003) 4 SCC 166.

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mandatory for the judge to attempt reconciliation.225 The HMA under Section 23 (Decree in proceedings) cast the duty of the Court where litigation is initiated to try and settle the matter by reconciliation before granting a divorce. Various other sections of this Act contain ADR provisions including Section 13 (B) that provides for divorce by mutual consent; Section 14 which states that no petition for divorce to be presented within the prescribed years of marriage and 14(2), especially when the interest of children are involved. Section 21B for the special provisions relating to the trial and disposal of petitions under the Act ensures expeditious disposal of proceedings.226 Under Muslim law as well, the legal decisions stress reconciliation. The Quranic verse on judicial divorce shows the disregard for divorce. But divorces are inevitable in the current scenario divorce.227 The Court has observed in several cases that as per Holy Quran, Talaq must be for a reasonable cause preceded by attempts at reconciliation between the husband and the wife. If in case the attempt fails then Talaq may be granted228 but only in case of extreme emergency.229 The SMA in Sections 29(2) and 34 puts a duty on the Court to bring about reconciliation between the parties, wherever possible. For this, the Court may adjourn the proceedings and refer the matter to the person nominated by the Court. The Court is bound by this duty even if the parties make a joint divorce petition under Section 28 of the Act. In cases where divorce is pronounced without reconciliatory efforts, on an appeal, it can be set aside for non-compliance with these mandatory provisions. Thus, reconciliation and settlement are statutorily recognized remedies for family disputes. The enactment of FCA now specifically excludes all family and matrimonial matters from the jurisdiction of other regular Courts (Section 8). Reconciliation with the help of third parties is now adopted as a primary mechanism for settling matrimonial disputes. An amicable settlement of this kind enables parties to resume their relationship.230

3.5 Conclusion The third chapter focused on the various matrimonial laws in India that provide for the resolution of the matrimonial dispute and related remedies. There can be a whole range of legal proceedings that may flow out of any matrimonial conflict including 225 Sangeetha

v. Suresh Kumar, JT 2000 (8) SC 527. Sikha Gorai v. Subodh Chandra Gorai (2003) 3 CalLT 230 HC. 227 Quran, Sura IV; Ayat 35; it states “If you fear a breach between them twain, appoint (two) arbiters, one from his family and the other from hers; if they wish for peace, Allah will cause their reconciliation: for Allah has full knowledge, and is acquainted with all things”. Yusuf Ali Abdullah (Translator) (2004). 228 Musst. Rebun Nessa v. Musstt. Bibi Ayesha & others AIR 2011 Gau. 36; Jiauddin Ahmed v. Mrs. Anwara Begum (1981) 1 GLR 358; Must. Rukia Khatun v. Abdul Khalique Laskar (1981) 1 GLR 375. 229 Shamim Ara v. State of UP, 2002 SC 3551. 230 Avtar (2009, p. 525). 226 Shrimati

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maintenance, dowry harassment, judicial separation, restitution of conjugal rights, conflicts after remarriage, custody right, settlement of property, and post-separation parenting to name a few. Though divorce might appear as a simple phenomenon in practical life, its implication is massive. Termination of a matrimonial tie can be distressing experiences in terms of social, psychological, emotional, and economic repercussions on the spouse, their children, family, and society. The chapter highlighted the impact of divorce on the separating couple, children, and society. Women are the worst sufferers as the implication of divorce are far-reaching for them. Women are considered as a financial burden, and parents usually disown them and pressurize to remain with their husband despite abuse and violence in the marriage. Since the majority of social problems are born out of dysfunctional families, state efforts are directed towards the preservation of the family unit. It is thus required that any dispute resolution process must ensure a healthy resolution of the matrimonial dispute with sensitivity about the vulnerability of the litigating women. Further, the chapter discussed the concept of ADR with a focus on the salient features of the three major ADR dispute resolution processes, i.e. counselling, mediation, and reconciliation that are specifically employed to resolve any kind of matrimonial dispute. Their advent, relevance, emergence, utility, Indian laws and legal provisions were elaborated upon.

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Cavanagh, J. R. (1963). Fundamental marriage counselling: A catholic viewpoint. The Mercier Press. Choudhary, J. N. (1988). Divorce in Indian society. Printwell. Davis, K. (1960). Human society. Collier Macmillan Ltd. New York. Derrett, D. M. (1970). A critique of modern Hindu law. N. M. Tripathi Private Ltd. Dicks, H. V. (1969). Marital tension clinical studies towards a psychological theory of interaction. Routledge & Kegan Paul. Diwan, P. (1985). Hindu law. Allahabad Law Agency. Enough is enough—Don’t tolerate domestic violence. National Commission for Women, New Delhi. Mahila Adhikar Abhiyan. Fayzee Asaf, A. A. (2005). Outlines of Muhammadan law (4th ed.). Oxford University Press. Fisher, R. (1991). Negotiating power: Getting and using influence. In J. W. Breslin & J. Z. Rubin (Eds.), Nagotiation theory and practice. The Program on Negotiation at Harvard Law School. Fisher, R., et al. (1991). Getting to yes: Negotiating agreement without giving in (2nd ed.). Penguin Books. Fonesca, M. (1966). Counselling for marital happiness. Makantalas. Goel, M. (1997). Successful mediation in matrimonial disputes: Approaches. Resources. Strategies and management. APH Publication. Goldberg, S. B., Sanderand Frank, E. A., et al. (1999). Dispute resolution: Negotiation, mediation and other processes. Aspine Law & Business. Goodman, A., & Harmmerton, A. (2010). Mediation advocacy. Universal Law Publishing Company. Griffith, E. F. (1967). Marriage and the unconscious (2nd ed.). Charles C Thomas Publishers. Grillo, T. (1991). The mediation alternative: Process dangers for women. Yale Law Journal, 100. Haynes, J. (1981). Divorce mediation: A practical guide for therapists and counselors. Springer Publishing Company. Haynes, J. M., & Stephanie, C. (1996). The fundamental of family mediation. The Federation Press. Herbert, W. L., & Jarvis, F. V. (1959). A modern approach to marriage counselling. Methuen & Co. Ltd. Hidayatullah, M., & Hidayatullah, A. (2010). Mulla’a principle of Mahomedan law (19th ed.). Lexis Nexis India. Irving, H. H. (1981). Divorce mediation: A rational alternative to the adversary system. Universe Books. Jaisingh, I. (1990). Family courts: From the frying pan into the fire? The Lawyers. Kashyap, B. G. (1995). Reformative law and social justice in Indian society. Regency Publications. Khan, S. A. (2006). Lokadalats. APH Publishing Corporation. Knowing and encouraging mediation: Court integrated mediation. A Programme of the Mediation and Conciliation Project Committee. Supreme Court of India. Kusum. (2012). Family law lectures. Family law I (3rd ed.). Lexis Nexis. Butterworths Wadhwa. Kwatra, G. K. (1999). The arbitration and conciliation law of India. The Indian Council of Arbitration. Manzumdar, D. P. S. (1997). Indian family in transition. In M. Sehgal & N. Sherjung (Eds.), Marital disputes and counselling: Remedial measures (Vol. III). APH Publishing Corporation. Mediation Training Manual of India. MCPC. Supreme Court of India, Delhi. Mohta, V. A., & Mohta, A. (2008). Arbitration. Conciliation and mediation (2nd ed.). Manupatra Information Solutions Pvt. Ltd. Mudd, E. H. (1951). The practice of marriage counselling. Association Press. Mudd, E. H., & Stone, A. (1958). Marriage counselling—A casebook of practice of marriage counselling. Association Press. Mukherjee, A. (1988). Marriage. Separation and divorce. Sarkar. Mukherjee, R. (1997). Legal status and remedies for women in India. Deep & Deep Publications. Mulla. (2013). Principles of Mohameden law (20th ed.). LexisNexis Butterworths Wadhwa. Nelson, R. (2011). Divorce mediation as a mentally healthier process for children. The Indian Arbitrator, 3(9).

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Pagelow, M. D. (1990). Effects of domestic violence on children and their consequences for custody and visitation agreements. Mediation Quarterly, 7. Panchu, S. (2011). Mediation practice & law. Lexis Nexis Butterworths Wadhwa. Paranjape, N. V. (2013). Law relating to arbitration and conciliation in India (5th ed.). Central Law Agency. Parkinson, L. (1997). Family mediation. Sweet and Mexwell. Patil, B. R. (1977). Conciliation in India: It’s functioning and effectiveness. Chugh Publications. Pearson, & Thoennes. (1984). Mediating and litigating custody disputes: A longitudinal evaluation. Family Law Quarterly, 17. Plumb, G. B., & Lindley, M. E. (1990). Humanizing child custody disputes: The family’s team. Charles C Thomas Pub Ltd. Pothen, S. (1986). Divorce: Its causes and consequences in Hindu society. Shakti Books. Prashar, A., & Dhanda, A. (Eds.). (2008). Redefining family law in India. Routledge. Qureshi, M. A. (2007). Muslim law (3rd ed.). Central Law Publications. Ramachandrappa, S. (2012). Causes and consequences of divorce in Bangalore city—A sociological approach. OSR Journal of Humanities and Social Science, 4(4). Ramanathan, U. (8th July 2012). Need for Enhancement of Standards in Mediation Practice. Paper Presented at the 3rd National Conference on Mediation. New Delhi. Rao, A. V. R. (1963). Mediation. Conciliation and arbitration. Popular Prakashan. Rao, P. C., & Sheffield, W. (Eds.). (2002). Alternative dispute resolution—What it is and how it works. The International Centre for Alternative Dispute Resolution. Universal Law Publishing Co., Pvt. Ltd. New Delhi. Riskin, L. L. (2003). Decisionmaking in mediation: The new old grid and the new grid system. Notre Dame Law Review, 79(1). Riskin, L. L., & Westbrook, J. E. (1987). Dispute resolution and lawyers. West Publishing Co. Russell. (1982). The law of arbitration (20th ed.). Stevens & Sons Ltd. Satya, L. D. (1991). Women-headed families problems, coping patterns, support system and some related policy matters. In S. Bharat (Ed.), Research on families with problems in India. TISS. Scott, N. M. (2020). Introduction to counseling: An art and science perspective (5th ed.) Sage Publishing. Sehgal, M., & Sherjung, N. (Eds.). (1997). Marital disputes and counselling: Remedial measures (Vol. III). APH Publishing Corporation. Sharma, B. (2001). Mediation: Getting conflicts resolved amicably. IJPA, XLVII(4). Sharma, B. R. (1997). Women: Marriage. Family. Violence & divorce. Mangal Deep Publications. Singh, A. (2009). Law of arbitration and conciliation and ADR systems (9th ed.). Eastern Book Co. Singh, G. (2005). Mediation: A choice of dispute settlement in India. M.D.U. Law Journal, X(1). Singh, G., & Gill, S. (1986). Problems of widowhood. The Indian Journal of Social Work, 47. Sinha, S. B. (2006). Mediation: Constituents. Process and merit. Nyaya Deep, 7(4). Siwan, A. (2004). Dowry and property rights. BREAD Working Paper No. 080. Spencer, D., & Brogan, M. (2006). Mediation law and practice. Cambridge. Sridhar, M. (2011). Alternative dispute resolution negotiation and mediation (1st ed.). Lexis Nexis Butterworths Wadhwa. Srivastava, S. S. (2001). Judiciary and the common man. Amity Law Review, 2(2). Stephenson, R., et al. (2008). Domestic violence, contraceptive use, and unwanted pregnancy in rural India. Studies in Family Planning, 39(3). Tayabji. (1968). Muslim law (4th ed.). N.M. Tripathi. Tripathi, S. C. (2005). The arbitration and conciliation act. 1996 with alternative means of settlement of disputes (3rd ed.). Central Law Publication. Uberoi, P. (Ed.). (2006). Family, marriage and kinship in India (7th ed.). Oxford India University Press. Venables, E. (1971). Counselling. The National Margen Guidance Council. Yusuf Ali Abdullah (Translator) (2004). The Holy Quran. Ayman Publications.

Chapter 4

ADR Institutions, Role of ADR Practitioners, and Frequency of Resolution of Matrimonial Disputes

4.1 Existing ADR Institution and Prototype Justice and equality are important constituents of the Indian judicial system. Currently, the justice administration suffers from delays and pendencies. Article 39-A of the Constitution of India ensures equal justice and free legal aid, Article 14 and Article 21 provide access to justice to the marginalized sections of the society by ensuring that opportunities for securing justice are not denied to any citizen because of social, economic, and other disabilities. To provide access to justice and prompt legal services, efforts are directed at making legal machinery more accessible to women. Further, the divorce proceedings can be stressful especially when either party is bent on contesting it. Such challenging divorces take longer to resolve as various grounds prescribed for divorce are required to be proved to the Court’s satisfaction with cogent evidence. The entire Court procedure is expensive and embarrassing and embitters the relationships. Thus, the focus now is on developing various ADR mechanisms that will provide timely, informal, and swift settlement with creatively settling all the underlying issues that could bring back parties to Court.1 Various institution have already been accepted and recognized as effective ADR methodologies. Legal Aid Cells, Family Courts, Lok Adalats, Women’s Courts, and other centres are set up for effective dispute resolution. To address the special needs of women experiencing abuse, all women police stations, police counselling cells, community policing initiatives, and special cells run by the non-governmental organization are established.2 The other state responses are counselling cells and shelter homes. Some of these important ADR mechanisms covering the field of marital disputes are discussed below:

1 Goldberg

et al. (1985, p. 8). Violence in India a Summary Report of Three Studies (1999, p. 20) Violence against Women in India: Evidence from Rural Gujarat, International Center for Research on Women, Washington, DC.

2 Domestic

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8_4

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4.1.1 Family Counselling Centres (FCCs) As discussed in Chap. 2, family is the most important and basic unit of society. It helps children in imbibing good values and life skills so that they develop into responsible citizen. Dysfunctional families lead to dysfunctional societies. Previously, the erring couples facing strained relations and marital discord were counselled by their elders. All this is not there now, and parties require a platform to discuss their problems and find their solution. To ensure amity and harmony among families and to support women victims, the Government of India launched the FCC scheme in 1983. The scheme provides preventive and rehabilitation services to women against atrocities, harassment, and family mal-adjustments, through the counselling process. FCC also provides trauma counselling services to women and children in case of disaster or crisis. The voluntary organizations are identified and recommended by the State Social Welfare Boards that implement the scheme with the help of the voluntary organizations across the country.3 The crisis intervention and systematic counselling are rendered for uniting families on the verge of collapse.4 The FCC creates awareness on social issues affecting women and mobilizes public opinion on them. These centres work in collaboration with local authorities and institutions like the police and short stay homes and intervene in cases of atrocities against women or when a woman is in crisis. There are around six hundred and twenty-three FCCs that are functioning in all the major states.5 About 50% of FCC is functioning in seven major states.6 Many of these FCC have been declared service providers by the state governments and counsellors declared as PO under the PWDVA.7 FCC is doing special interventions in different setups like FCC at police headquarters, all

3 Available at: https://wcd.nic.in/sites/default/files/WCD%20percent20ENGLISH%20percent202 018-19.pdf (Accessed on July 19, 2020). To give special focus to the welfare of women and children, the Central Social Welfare Board was set up in 1953 that came under the Department of Social Security in 1964. As an autonomous body, it was set up in the First Five-Year Plan itself for assisting in the improvement and development of social welfare activities (p.119). 4 Available at: https://cswb.gov.in/sites/default/files/Scheme_of_FCC_eng.pdf (Accessed on July 02, 2020). 5 Available at: https://cswb.gov.in/sites/default/files/location/FCC_List_of_contact_person_201920.pdf (Accessed on June 03, 2020). 6 Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Tamil Nadu, Uttar Pradesh, and West Bengal. 7 The state governments have declared 192 FCCs as service provider under Domestic Violence Govt. of India holding charge of Chairperson, CSWB. A presentation was given, and decisions were taken on the administrative and financial issues of the Board as per delegation of powers. Annual Report of the Board for the year 2017–18 was approved by the General Body. Act, 2005, and 98 numbers of counsellors have been declared as protection officers. Available at: https://wcd.nic.in/sites/default/ files/WCD%20percent20ENGLISH%20percent202018-19.pdf (Accessed on February 04, 2020). Annual Report of Ministry of Women and Child Development, Government of India (2018–2019, p. 126).

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women police station,8 in Mahila Jails (women prisons), and at premarital counselling centres. As per the scheme, FCC should be easily accessible for seeking diverse assistance.9 The crimes against women are often perpetrated with impunity because women have no outside support systems. Society itself does not regard the person responsible for such heinous crimes against women’s dignity accountable. The FCC is a powerful mean of deterring the commission of such crimes as they not only form a support system for women but help them in punishing the wrongdoer.10 However on the flip side, these FCCs are mostly located in the urban areas (54.8% of the FCCs; the semi-urban area has 23.2%), while rural areas have less than 1/5th (19.3%) FCC. But the number of clients who come to seek help from small towns (19%) and rural areas (44.9%) is almost double the number who access FCC services from urban areas (35%, which is a combination of two percent in mega cities, 25.8% in cities, and 7.2% in peri-urban areas). As per the census 2011, 68.8% of the total population constitutes the rural population so there should be more concentration on setting up FCC in rural areas. The poor access of these FCCs due to their distant locations is yet another concern area.11

4.1.2 Legal Services Authorities: Lok Adalat, Legal Aid Agencies, Delhi Legal Aid & Advice Board The various legal reforms initiated after independence stressed upon approaches that are based on ADR systems. Among them, Lok Adalat is the most popular form of ADR process developed post-independence. The LSAA accords statutory recognition to this novel form of ADR or agency of Lok Adalat (people’s Court) that gives a new dimension to the justice dispensation system in India.12 Lok Adalat provides a supplementary forum for dispute settlement through conciliation rather than animosity and protracted adjudication. The settlement of disputes is encouraged by utilizing other ADR techniques of negotiations, arbitration, and conciliation (Section 4(f)). The process inculcates the spirit of harmony and puts aside the litigants from unease and expenses. The concept envisages providing an opportunity to the parties to make voluntary efforts to settle their disputes. It is an indigenous species of ADR that is non-adversarial, simple, quick, and cost-effective.13 8 Available at: https://timesofindia.indiatimes.com/city/trichy/family-counselling-centre-openedat-all-woman-police-station/articleshow/66252746.cms (Accessed on December 06, 2020). 9 Available at: https://cswb.gov.in/sites/default/files/Scheme_of_FCC_eng.pdf (Accessed on Jan 19, 2020). 10 Available at: https://mahiladakshatasamiti.org/family-counseling-centre/ (Accessed on March 21, 2020). 11 National Evaluation Study of Family Counselling Centres Sponsored By Ministry of Women And Child Development Government of India School of Social Work Tata Institute of Social Sciences, Mumbai (2018, p. 99). 12 Methew (1996). 13 Nariman (2006, p. 47).

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These Lok Adalats are regularly organized with financial assistance from central and state governments. The LSAA also provides for the composition of national-, state-, and district-legal services authorities. They set up counselling and conciliation centres in every district of the country to guide and motivate parties to amicably resolve their disputes. They especially assist women who are vulnerable to social exclusion. These matrimonial Lok Adalats are convened at all the district Court complexes at regular intervals by state legal services authority with the idea of facilitating the amicable resolution of cases relating to DV, maintenance under Section 125 of CrPC and Sections 18 and 19 of HAMA, divorce and restitution cases, and maintenance and custody of children to name a few. It can be resorted to at all three stages of litigation, i.e. pre-litigation, pending litigation, and post-litigation.14 The Act under Chapter VI of LSAA discusses the organization of Lok Adalats, its power and its functions. Chapter VIA of the Act provides for a compulsory pre-litigation mechanism known as Permanent Lok Adalats having jurisdiction over public utility services-related cases. Some of the other advantages of the Lok Adalats mechanism include a refund of the Court fee (Section 21) if a case pending in a regular Court is resolved through this mechanism. No lawyer is essentially required during the process though they can help parties. The Lok Adalats are guided by the principles of justice, equity, fair play, and legal principles. In case of no compromise or settlement, the case record is sent to the referring Court. As per Section 21(1) and Section 21(2) of LSAA, the award of the Lok Adalat is like a civil decree of the Court and being judgements by consent, the award is final, binding, and non-appealable. It is a voluntary process, and the decision is given when both parties mutually agree to solve their dispute. The Lok Adalat is doing a commendable job and giving smooth redressal of disputes.15 In Delhi, the Delhi State Legal Services Authority (DSLSA) that was previously known as the Delhi Legal Aid and Advice Board (formed in 1981) is constituted under the LSAA. It provides free and competent legal service to women and other weaker sections of society. Its central office is located at Patiala house Courts, and every DSLSA has four wings, viz. establishment wing; legal aid wing; Lok Adalats wing; and legal literacy wing. The counsellors attached with the DSLSA help aggrieved women in accessing free legal aid and counselling concerning family disputes.16 They bring about an amicable settlement in all or a few issues about a particular case, thereby easing the Court’s burden. Further, the Parivarik Mahila Lok Adalat (hereinafter PMLA) gives additional support to the efforts of the district legal service authority (hereinafter DLSA). They stress redressal and speedy disposal of marriage and divorce disputes and connected cases pending in various Courts. PMLA is an innovative concept that is evolved by the NCW for resolving cases under LSAA speedily, flexibly, and amicably. Any NGO 14 Bhatt

(2002, pp. 10–11). Hassan And National Legal v. Delhi Vidyut Board & Ors., AIR 1999 Delhi 88. 16 This Authority has a panel of counsellors who sit in its front office and provide counselling in pre-litigation matrimonial disputes, service matters as well as arbitration matters. https://dslsa.org/ ndd/?page_id=148. 15 Abul

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in association with District Legal Aid and Advisory Board, activists, advocates, and others can propose to organize PMLA with financial assistance from the commission. The 133 PMLAs organized so far have dealt with about 7500 cases in total.17 These PMLAs provide cost-free justice to women and generate awareness regarding the conciliatory mode of dispute settlement. It gears up the process of organizing Lok Adalats and encourages the public to settle their disputes outside the formal setup.18 In 1980, Committee for Implementing Legal Aid Schemes (CILAS) was constituted at the national level to oversee and supervise legal aid programme in the country and to monitor legal aid activities throughout the country. Now, the LSA prescribes providing free legal aid and free legal service in the conduct of a case. Legal aid is an essential part of the administration of justice, and the Act prescribes the criteria for providing legal services (Section 12). The idea behind the concept of legal aid is to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of knowledge. The Legal aid programme aims to secure justice for the weaker sections of the society including the poor, socially backward, women, children and handicapped by affording them equal access to justice just and information. Women as a vulnerable group face exploitation, harassment, molestation, and social discrimination. The legal service authorities like DSLSA help women in distress facing DV, workplace harassment, social abuse, societal unjust, dowry victims, rape victims, social abuse, and much more. They help marginalized women in accessing legal aid and complete assistance through their centre helpline. To give access to her legal rights, a woman is entitled to free legal services that among others includes the provision for providing legal information and advice to a woman in distress. The general objective is to empower marginalized women by facilitating their access to legal rights, counselling, and legal representation. The DSLSA provides legal awareness, counselling and mediations and financial aid to make women self-reliant.19 Lok Adalats were envisioned as forums that will be accessible to the disadvantaged groups and will help the Court in relieving their burden. However, questions are raised regarding the validity of these bodies for providing actual justice to the disadvantaged groups. It is feared that this mechanism might not always be providing justice and would end up imposing decisions that may seem expeditious and less costly but are not the real entailments they could have got under the legal system.20 It is often stated that the informal process of the Lok Adalats with its emphasis on compromise and speedy disposal could disadvantage weaker parties.21 To enable the citizens to be informed and aware about these process awareness generations is seen as a crucial solution. The legal aid agencies and authorities created under the LSAA regularly 17 Available

at: https://ncw.nic.in/ncw-cells/ppmrc-cell/parivarik-mahila-lok-adalat-pmla (Accessed on December 04, 2020). 18 Available at: https://ncw.nic.in/sites/default/files/Parivarik_Mahila_Lok_Adalats.pdf (Accessed on October 05, 2020). 19 Gallanter and Baxi (1997, p. 67). 20 Galanter and Krishnan (2003, pp. 113–117). 21 Baxi U & Galanter M (1979, p. 367).

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organize legal literacy and awareness camps. As a part of the preventive strategy, the national legal service authority through the state legal service authorities conducts legal literacy programmes for women empowerment. Some 5.35 lakh legal awareness camps are organized, and around 28.58 lakh eligible persons that include women, children, persons in custody, persons belonging to poor and backward categories have been benefitted through these free legal services authorities.22 The vulnerable women are educated about their legal rights and entitlements through these legal literacy awareness programmes.

4.1.3 Gram Nyayalaya or Village Courts or Mobile Courts, Panchayat and Nyaya Panchayats To reduce the barriers and shortcomings associated with the justice delivery system and to reduce its workload, the Panchayati Raj or self-governance and the forum of Gram Nyayalaya or village Court at the village level were conceived.23 These two institutions aim to revive the traditional village community life and will provide easy access to speedy and inexpensive justice. Panchayatand Nyaya Panchayats(Judicial Councils) If we look at the administration of justice in India from ancient times some form of self-governance has always existed at the village level.24 Panchayat that means a ‘group of five’ has existed in India for thousands of years. The Panches are the senior-most and respectable community members selected by villagers to resolve their simple disputes.25 However, this native system lost its relevance during British rule as it was not allowed to function as autonomous and self-sufficient bodies.26 The participatory system of Panchayati Raj at the grass-roots level is now revived, formed, formalized, and mandated in Article 40 of the Constitution of India. The article prescribes that state must take initiatives to arrange village Panchayat and provide them with such powers and authority as may be necessary to enable them to function as a unit of self-government. This traditional and indigenous form of dispute resolution mechanism is revived and reformed and made a part of the formal legal system. The Constitution of India through the 73rd amendment of the Constitution (1992) inserted Part IX (Articles 243(A) to 243(O)) and added Schedule XI to organize village Panchayats, to enable them to function as units of self-government, and to secure social justice. The statement of object and reasons states that the Panchayat Raj Institutions that have existed for a long time have not acquired the status and dignity 22 Available

at: https://dlsa.nic.in/ (Accessed on December 24, 2020). Kushwaha v. Pushap Sadan (2016) 8 SCC 509. 24 Drummond (1937). 25 Law Commission Report (1958, p. 874). 26 Sharma (1962, p. 29). 23 Anita

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of viable and responsive people’s bodies due to various reasons. The revived system provides reservation of not less than one-third of the seats for women along with other members who are appointed for five years. When the Panchayat is convened, the process entails discussion in a cordial environment for reconciling the dispute. This face-to-face interaction minimizes acrimony and maintains communal harmony. Unlike Courts, there are the least chances of corruption and delays in settling disputes and getting justice. Members hear dispute of the parties who can freely and personally present their contentious issues. All this ensures permanent holistic resolution of a dispute. No formality or technicality is observed during the process.27 The Nyaya Panchayats and Lok Adalats both are created for achieving the objective of dispensing speedy justice in informal settings and for achieving public participation in the administration of justice.28 Through its 14th Report (1958), the Law Commission of India is recommended for laying the foundation of the concept of Nyaya Panchayats in India. As the judicial component of the Panchayat system that is the lowest rung of our society, it administers justice at the local or rural level. The Nyaya Panchayats have civil and criminal jurisdiction and can levy fines but have no power to sentence offenders to imprisonment, substantively or in default of fine. The emphasis during the process is on the amicable settlement of disputes with an emphasis on conciliation. The Nyaya Panchayats formed out of the members of the Gram Panchayats decide petty disputes. They are set up at the district and block level to informally decide the personal disputes of people. However, their decision is not final and parties are free to approach the Court for its resolution. The principle of res judicata is not applicable. The Nyaya Panchayats differ from Panchayats as Nyaya Panchayat members are elected whereas for Panchayats they are merely chosen from among the senior and wise members. The Nyaya Panchayats administer the laws and not only enforce local custom. However, these ADR means envisioned for dealing with disputes at the local level have failed to achieve their objectives. Their functioning is not up to the mark with some committees recommending their abolition for being partial and for not being private.29 As per the 77th Report by Law Commission of India, they are faction-ridden institutions as justice is provided based on caste community and other considerations leaving room for biases and injustice. This sort of arbitrary decisions makes the constitution of this ADR mechanism a backward step. The awards of the Nyaya Panchayats are appealable and are not the decree of the Court. As per the 1973 report of the Expert Committee on Legal Aid, however, it is still considered part of a larger scheme of legal aid and access to the Courts as inexpensive, accessible, expeditious, and suitable to preside over conciliatory proceedings. As an indigenous system of participatory justice, its decisions are honoured and accepted by the community people.

27 Varghese

(2011, pp. 38–39). and Baxi (1997). 29 Maharashtra Committee’s Report on Panchayati Raj (1971) and The Rajasthan Committee Report (1973). 28 Gallanter

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Gram Nyayalaya or Village Courts or Mobile Courts In its 114th Report (1986), the Law Commission of India recommended setting up Gram Nyayalaya at the grass-roots levels. As per the preamble, Gram Nyayalaya or village Court is an important development that provides legal assistance to the rural people at their doorstep. After almost two decades, the Gram Nyayalayas Act of 2008 was enacted to secure justice to citizens and to ensure that no one would be allowed to suffer for want of justice. The Gram Nyayalayas are different and separate from Panchayats or Nyaya Panchayats. The main difference between Nyaya Panchayat and Gram Nyayalaya is while five elected members constitute Nyaya Panchayat, for Gram Nyayalaya one Nyayadhikari is appointed. Nyaya Panchayat can only impose a fine. Gram Nyayalaya can impose punishment or a fine. As per Section 3(1) of the Act, the state government establishes Gram Nyayalaya for every Panchayat. The seat of the village Courts is the headquarters of the immediate Panchayat. For providing access to justice, the mobile Courts will go to the doorstep of the villages, work there, and dispose of the cases (Section 9). The village Court deals with civil and criminal cases except when the pronouncement of punishment would exceed over two years (Sections 11, 12, and 13) and those prescribed under the First Schedule and the Second Schedule. A person accused of an offence may apply to plea bargaining (Section 20). The summary trial procedure is followed (Sections 19 and 24) that is not bound by the rules of evidence but principles of natural justice. The Act provides for Ist Class Judicial Magistrate to be called Nyayadhikari (Sections 5 and 6). He will dispense justice and settle the civil disputes concerning marriage, divorce, custody of children, and share in the property by making efforts for conciliation (Section 26). The judgement and order passed by the Gram Nyayalaya shall be deemed to be a decree. Thus, these Courts reduce subordinate Courts workload by providing inexpensive, speedy, and easy access to justice.30 A Sections 33 of the Act debars the right to appeal. If we evaluate the functioning of the Gram Nyayalayas, the Act is not enforced properly. Only scant numbers of Gram Nyayalayas are functional in the country against the target number. The financial assistance was initially provided by the centre (Vide Notification No. J-12021/5/2009-JR dated 16.12.2009) that was later passed on to the respective state government. Till today, a mere 320 Gram Nyayalayas have been notified by various state governments and of that only 204 are operational.31 So far, only 11 states have taken steps to notify Gram Nyayalayas. This huge disparity due to the non-setting up of these Courts in a majority of the states seems to have defeated the intention with which they were envisioned. There is the reason behind the non-enforcement of this beneficial mechanism due to financial constraints, the reluctance of lawyers, lukewarm response of the bar, public prosecutors, police officials, and other state functionaries to invoke jurisdiction of Gram Nyayalayas. In practice, Gram Nyayalayas having parallel jurisdiction 30 Times

of India (Oct 4, 2009) Village Court opens in Puri.

31 Evaluation Study of the Scheme of Establishing and Operationalizing Gram Nyayalayas (January,

2018) Sponsored by the Ministry of Law and Justice and Conducted by the National Productivity Council.

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along with other regular Courts are established in cities and towns. For example, in Indore, the Gram Nyayalaya functions within the regular Court premises. Infrastructure and security are grossly inadequate. Many of the stakeholders like litigants, lawyers, police officers, and others are not even aware of their existence. Further, the number of cases disposed of by Gram Nyayalayas is negligible and that they do not make any substantial difference in the overall pendency in the subordinate Courts. There is a general lack of economic viability, or incentives and the unsafe location of a Gram Nyayalaya (sometimes being close to a forest, where crime rates are high) are other reasons behind their unpopularity. In its report to parliament, the Department-Related Parliamentary Standing Committee expressed dismay stating that the Gram Nyayalayas have failed to bring a revolution at the lowest level of the judicial system due to fund sharing problem between the central and the state governments. Challenges like the problem of infrastructure and security, creation of awareness among various stakeholders, creation of a regular cadre of Gram Nyayadhikari, and establishment of permanent Gram Nyayalayas remain.32 Despite these shortcomings, these village Courts are of great help to women litigants. The Gram Nyayalayas conduct its proceedings in the local language used within a particular jurisdiction. They help the local women in litigating their rights. Village women are not literate in legal terminology and about their legal rights. They hardly understand the complicated legal procedures. These institutions follow a sensitive approach towards women and provide intervention to them in their local language. Women facing wrongs against them find them as a viable mean to support their claims during disputes.33 To make this ADR institution provided to women at the grass-root level must be made effective through concrete, well-planned and continuous planning and efforts. To fulfil the mandate of the Act, policymakers need to review, reflect, and act upon the suggestions of stakeholders.

4.1.4 Role of Crimes Against Women Cell (CAWC)/Mahila Thana/Parivar Paramarsh Kendra If we look at the statistics of NCRB, it shows an upward trend regarding the crimes of violence and discrimination against women, in both private and public domains. To cater to the peculiar needs of women, from 1980 onwards the women’s organizations proposed the idea of ADR methodologies. It was felt that marital disputes need to be dealt with through mutuality without resorting to litigation. The women’s cells set up in police stations that deal with women’s complaints regarding dowry demands and DV.34 To deal with these and other contentious issues concerning women, the special 32 Available

at: https://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee% 20on%20Personnel,%20PublicGrievances,%20Law%20and%20Justice/67.pdf (p. 6). (Accessed on August 05, 2020). 33 Available at: https://doj.gov.in/sites/default/files/gram-nyayalayas_0.pdf (Accessed on Jan 26, 2020). 34 Poonacha and Pandey (2000, pp. 566–574).

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police cells look into cases of harassment and violence in the family and matrimonial discords. They are functional in many states around India and providing enabling environment to aggrieved women. In 1983, the first cell was set up in Delhi initially referred to as an anti-dowry cell (Section 9 of Delhi Police Act, 1978). As a police response to separately deal with the harassment and crimes faced by women, in 1985 it was renamed as Crimes against Women Cell (hereinafter CAWC). Today, the Delhi police have formed a CAWC in each of its 11 districts that receive numerous calls every day.35 Women view the mainstream police stations as frightening place that do not encourage reporting of personal crimes by them. The creation of Mahila Thana is an important step in achieving the objective of making the police station more approachable and less intimidating to women complainant.36 They are constituted to facilitate women’s rights without resorting to lengthy Court procedures and to protect the woman interest. They strike a balance between unnecessarily criminalizing the domestic arena and not screening it from intervention. It ensures that if a marriage is terminated, it does not result in harm to a woman’s rights. With help from reputed NGOs, rescue shelters, and short stay homes, the CAWC assists women through their counselling and free legal services.37 The focus is on counselling families and meeting the gender-specific police response in police stations that are managed by male police officers. The idea was to give attention, sensitive and sympathetic dealing with certain specific problems of women.38 Mostly, DV, domestic disputes, and dowry harassment cases under 498A of IPC are dealt with by these cells apart from other gender-specific crimes like rape, sexual harassment.39 The counselling centre attached to these cells handles the matrimonial disputes and offences under Section 498A of the IPC following a more sensitive approach towards women victims. They bring about reconciliation between the parties up to the stage of preregistration of FIR.40 The CAWC investigates crime about women without causing any discrimination based on sex and serves the social purpose of dealing with their problems sensitively. CAWC is like any other specialized wing of the police like a special cell, crime branch, where firstly an attempt is made to bring about reconciliation between parties; if it fails, the law is allowed to take its course making these cells a suitable forum for women-related dispute resolution.41

35 Hindustan Times (September 14, 2012, p. 4) Domestic Violence tops Calls on Helpline, New Delhi. 36 Mathur (2004, p. 120). 37 Deol (Series no. 69, pp. 80–81). 38 Deol (Series no. 69, p. 77). 39 Available at: https://indianexpress.com/article/india/india-news-india/crime-against-womencell-handling-less-crime-more-domestic-squabble-cases-3026357/ (Accessed on August 05, 2020). 40 Mr. Raj Kumar Khanna v. The State (NCT of Delhi) and Ors., 2002 (1) JCC 327. 41 Smt. Jasbir Kaur v. State (Govt. of Nct Delhi) and Ors., 134 (2006) DLT 325.

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In case of a matrimonial dispute, the married woman can complain in writing against dowry demand and cruelty inflicted by the husband and his family to the CAWC. She can complain in the area in which she resides that is entered in the register maintained for this purpose. The cell will summon the concerned parties to try and get the dispute and difference resolved among them. During the entire proceeding, a women police inspector is always present to ensure that the victim is comfortable in narrating her ordeal. The complainant wife submits a list of her Stridhan entrusted and kept at the matrimonial house. If she no longer wishes to stay with her husband, efforts are made to recover the Stridhan properties for her physical possession. Generally, when the husband visits the cell for the first time, a counsellor tries to ensure a patch-up between the warring spouses. If there are any chances of mutual reconciliation, the process is carried forward at future dates given by the counsellor. The counsellor maintains the record of proceedings and ensures the same is crosssigned by both parties. An amicably arrived written settlement by the parties is signed by all the parties. After a few meetings, generally between five to seven with the cell officials, if there is no scope of reconciliation between the spouses, the complaint is referred to the legal cell of the CAWC that goes through the complaint and makes its recommendations for filing of FIR at the concerned police station. In case of no compromise, a failure report is sent to the concerned authorities. The complaint of the woman is forwarded to the related police station for registration of a regular FIR. Once the recommendation for registration of the FIR is made, the role of the CAWC comes to an end. The husband has to seek anticipatory bail to thwart his arrest.42 These cells counsel the victim and their family to provide free legal advice. It saves marriages by providing a forum to the parties to sort their disputes in a reconciliatory and voluntary manner before an FIR is registered. The police headquarters frame the procedure to be followed by the CAWC for preventing abuse of the process of law. The cells resolve the difference between parties and for an amicable settlement. The cell safeguards the marriage by not immediately registering the case. Once an FIR is registered, it becomes difficult to solve matrimonial tangles and things reach such a pass that makes it difficult to restore.43 The cell, however, has reconciliation as the prime agenda and cannot investigate the crime.44 If we look at the Court judgements concerning the powers and procedures of CAWC, almost every judgement mandates reconciliation forgetting the crime aspect.45 These cells assist the parties in the reconciliation of their preliminary disputes and the legal system in reducing the Court’s burden. In cases registered under DVA, every petition filed should be decided within 60 days. But they lack judicial or quasi-judicial powers and power to take any coercive action against the husband or his family. It cannot investigate the crime and can merely send request letters to

42 Harpal

Singh Arora and Others v. State and Another, W.P.(Cr.) 1009/2007. Raj Kumar Khanna v. The State (NCT of Delhi) and Ors., 2002 (1) JCC 327. 44 Crl. M. No.9052/2007; W.P. (Crl.)1045/2007. 45 Raj Kumar Khanna v. The State (NCT of Delhi) and Ors., 2002 (1) JCC 327. 43 Mr.

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the accused to participate in the conciliation process.46 All women police station handles women’s cases exclusively but faces the problem of ill-maintained records, poorly trained staff, no assistance from any women’s bodies or support groups, and a surprisingly patriarchal attitude towards the victims along with the refusal to register complaints. These cells were created with the motive of providing quick redressal to women related issues. Practically they too suffer from long waits and delays. Due to heavy workload, lack of infrastructure, and manpower, they often fail to dispose of cases within the stipulated time.47 Women’s dispute is regarded as minor, and they are convinced to avoid lodging complaints and reconcile with the spouse. Most of the staff agrees that ‘it is important for the woman to reconcile as there is little else that she can do as most women who approach are uneducated and have little or no source of income, so we think it is better if the parties patch up’.48 The larger idea is to prevent damaging the relations between the parties that makes it impossible for the women to return to their matrimonial home. The cell is thus successful in dealing with crimes committed against women although much improvement is possible. It is required that such cells are created in all states to inspire confidence among victim women and for ensuring speedy help to them.

4.1.5 Role of National Commission for Women (NCW)/Delhi State Commission for Women (DCW) In 1958, a devoted department for women and child development was set up. Later, in 1971, the government appointed a Committee on the Status of Women in India (hereinafter CSWI) to raise various issues concerning women like socialization, resources, power distribution patterns, and prevailing cultural values. The report stressed the need to transform de jure equality into de facto equality. Later under the National Perspective Plan for women (1988–2000), the NCW was set up as a statutory body on 31 January 1992 as per the National Commission for Women Act, 1990. The purpose was to facilitate the mainstreaming of women’s issues in government programme and policies. It aims to act as a surveillance body that facilitates the redressal of grievances of women. The mandate of the commission covers a wide range of function mentioned under Section 10. These functions include investigation and examination of the legal safeguards provided for women under the Constitution of India and other laws and recommend measures to the government for their effective implementation. It looks into complaints and takes suo moto notice of matters 46 W.P.

(Crl.) No.1032/2007; Crl.M.A.No. 8989/07; W.P. (Crl.) No.849/2007. Times (September 14, 2012, p. 4) An RTI filed revealed that of the 14,887 cases filed (1926 cases were withdrawn) in seven Districts Courts in Delhi since 2007, the Courts have neither decided nor dismissed even a single case (New Delhi). 48 Times of India (12 March 2012, p. 12) No help for women at Mahila Thanas. 47 Hindustan

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relating to deprivation of women’s rights. It takes up these issues with appropriate authorities and conducts studies and research on socio-economic issues. Its other roles are inspections of jails, remand homes, and seeking remedial action where necessary. The Complaints and Investigation Cell of the NCW processes the complaints received. The complaints falling under the nineteen identified categories mentioned under Section 10 of the Act (including harassment of married women, dowry harassment, dowry death, bigamy, polygamy, and DV) are then investigated by the police. The commission monitors their day to day proceedings and ensures their timely disposal. It registers and investigates a large number of cases received from women across the country. It helps in resolving these complaints by following them up with the concerned authorities.49 The complaints are registered for various reasons like the right to live with dignity, dowry harassment and death, police apathy against women.50 It processes the complaints and cases relating to family disputes. Matrimonial complaints are resolved or compromised after personal hearings and through counselling. The inquiry committee looks into serious crimes, and after conducting enquiries, the examination of witnesses, it collects evidence and submits its report with recommendations.51 The commission also takes suo moto cognizance of cases based on various media reports. Complaints relating to the deprivation of women’s rights and non-implementation of laws relating to them for providing speedy justice to the victims are considered. As mentioned earlier, the commission pursues these matters with the concerned authorities by seeking action taken reports. In serious cases, it constitutes inquiry committees headed by members of the commission.52 The NCW has evolved the novel concept of Parivarik Mahila Lok Adalat 53 for redressal and speedy disposal of cases under LSAA. The PMLA seeks amicability, mutual settlement, and flexibility in its functioning. It saves time, efforts, and expenses and provides speedy and cost-free dispensation of justice to women. During this Lok Adalat, the decision arrived through the mutual consent of the parties is final and non-appealable. An informal process is followed during the hearing with counselling playing a crucial role in its settlement. The counsellors assisting PMLA help in justice delivery by playing a positive and constructive role in resolving the disputes through confidence creation among parties. The parties might take time to open up to sort out their disputes amicably. The expert counsellor with his experience of 49 Annual Report (2018–19, pp. 7–9) National Commission for Women, New Delhi (During 2018– 19, the C&I Cell of the Commission registered 19,279 complaints/cases falling within its mandate) Available at: https://www.ncw.nic.in (Accessed on July 11, 2020). 50 Annual Report (2018–19, p. 9) National Commission for Women, New Delhi. Available at:https:// www.ncw.nic.in (Accessed on April 18, 2020). 51 Available at: https://ncw.nic.in/frmComplaintUnit.aspx (Accessed on June 05, 2020). 52 Available at: https://ncw.nic.in/ncw-cells/complaint-investigation-cell (Accessed on April 24, 2020). 53 Available at: https://ncw.nic.in/ncw-cells/ppmrc-cell/parivarik-mahila-lok-adalat-pmla (Accessed on September 21, 2020).

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promoting the settlement of disputes between the parties effectively helps them. He assists in drafting settlement that will be later confirmed by the presiding officer.54 The PMLA is organized by NGOs in association with DLSA, activists, advocates, and others for selected and admissible women-related cases. The financial assistance for these Lok Adalats is received from the commission. They promptly redress the dispute of marriage and family affairs. Before the date of the PMLA, the NGO through its counsellors approaches the parties and counsels them to bring about compromise or settlement. On the specified date, the summoned parties will attend the PMLA organized by NGO. The settlements are reduced to writing, and each party signs it to be later on presented before PMLA for its final and legal authentication. The goal is to dispose of a minimum of 40% of the cases on the date of PMLA. As per statistics released by the commission so far, 133 PMLA have been organized that have disposed of 7500 cases that it took up. The Delhi State Commission for Women (DCW) DCW is an autonomous institution setup in 1996 under the Delhi Commission for Women Act, 1994. It investigates and examines women-relating issues and makes recommendations for implementation for improving the conditions of women. The prime objective of the commission is to ensure the security, development, and wellbeing of women in every sphere of life and to make provisions for their advancement. It reviews state laws and suggests new legislation and amendments to existing laws to meet the objectives of gender equity. Under Chapter III of the Act, several security policies, projects, and programmes are undertaken for gender justice. For example, the Crisis Intervention Centres scheme provides support and care to rape victims and victims of crimes other than matrimonial cruelty. Sahyogin, the family counselling unit cell of the DCW, has the powers of a civil Court and hears and counsels disputing parties on their grievances to bring about reconciliation. It sensitively addresses family issues about DV, harassment, dowry demands.55 Launched in 2001, the Mahila Panchayat is another initiative of the commission for women’s legal empowerment and distress redressal. In this programme, a group of women identified by NGOs forms a Panchayat for their area and take-up disputes between parties and counsels them for reducing violence in their locality. They organize camps at the community level to create awareness among women about their legal rights, social, family, and health issues. Also in August 2016, the NCW initiated a pilot project named Mahila Jan Sunwai that dealt with an increased number of women complaints and their speedy disposal. The Mahila Jan Sunwai was conducted in collaboration with the DLSA and police authorities. The chairperson heads it, and members of the commission form their

54 Available

at:https://ncw.nic.in/sites/default/files/Parivarik_Mahila_Lok_Adalats.pdf (Accessed on October 21, 2020). 55 Available at: https://dcw.delhigovt.nic.in/wps/wcm/connect/lib_dcw/DCW/Home/Projects/ (Accessed on May 08, 2020).

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part. They dispose of complaints by conducting spot hearing of the matters.56 The next effort by NCW in collaboration with the Tata Institute of Social Sciences and Delhi police is a special cell for women. The project aims to empower women and help women survivors of violence in both public and private life. The project entails placing trained social workers and providing quality psycho-legal services for violated women at all district headquarters. At present, 24 social workers are appointed at the district level positioned in CAWC of Delhi police. The progress of these cells is jointly reviewed by the commission and the Delhi police. The project is now being replicated in 22 districts of 7 other states on a pilot basis, including Bihar, Assam, Meghalaya, Punjab, Madhya Pradesh, Odisha, and Tamil Nadu, wherein a support mechanism is promoted for women victims of DV and a systemic grievance redressal mechanism has been created within the police/criminal justice system. In the context of matrimonial disputes, worried by the large figures on failed marriages and those facing difficulties, the premarital counselling programme started in 2008. To thwart future matrimonial disputes, the counsellors attached to these cells counsel pre-nuptial couples on various issues including marriage equality, adjustment to the changed life situations. The DCW helpline launched in 2000 also counsels parties on areas like child custody, marital disputes, rape, sexual harassment at the workplace, etc.57 The commission takes care of women subjected to various kinds of offences within the marriage, family, and outside and their concerns following a speedy and expeditious process with a focus on counselling and amicable reconciliation.

4.1.6 Role of Religion-Specific Institutions Article 372 of the Indian Constitution permits the continuation of ‘all laws in force’ in the territory of India immediately before the commencement of this constitution. Further, Entry 5 of the concurrent list recognizes ‘personal law’ on which both parliament and state legislatures can legislate. Apart from the state-sponsored dispute resolution forums, some other non-state dispute resolution forums are operating in the country. They are considered as ADR institution and protected under Articles 25 and 26 of the Indian Constitution. To resolve family and matrimonial dispute, the consenting parties can approach them for arbitration. For example, Section 29 of the HMA recognizes customary divorces without the Court’s intervention. These non-state forums and customary means of divorce provide a cheaper and informal way of negotiating and ending marital relationships. Only a few of these non-state forums are recognized by the laws, and in general, their legality is debated. Some of these non-state, unofficial, and out-of-court forums are discussed below: 56 Annual Report 2018–19, National Commission for Women (p. 10) New Delhi. Available at: https://www.ncw.nic.in (Accessed on May 17, 2020). 57 Available at: https://dcw.delhigovt.nic.in/wps/wcm/connect/lib_dcw/DCW/Home/Projects/ (Accessed on October 27, 2020).

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Catholic Tribunals or Church Courts

Since the twelfth century, Ecclesiastical Courts in England were applying Canon Laws. They were recognized to have exclusive jurisdiction over matters related to marriage and divorce. Through the Matrimonial Causes Act, 1857, divorce by the judicial process was introduced. In the case of India, by Sections 18 and 19 of the IDA, the power to make decrees of nullity of marriage on the ground of duress or fraud was granted to the HC that was earlier exercised by the SC of India.58 For a long time, the Catholic tribunals constituted across India and popularly known as ‘church courts’ were dealing with their marriage issues. They had the power to grant annulment decrees by following a simple mechanism. As a matter of practice, Catholics who want to avoid lengthy and delaying Court procedure were approaching these Courts. Through its various judgements, the Indian Courts have declared the decision delivered by Ecclesiastical Courts will not affect the civil rights of the parties arising out of a marriage. The decision of the Ecclesiastical Tribunal should not be treated as final and conclusive between the parties. Marriage between the parties creates civil rights, and the Ecclesiastical Tribunals have no jurisdiction to annul marriages and the civil rights of parties. Through its various judgements, the Indian Courts have declared that the decision delivered by Ecclesiastical Courts will not affect the civil rights of the parties arising out of a marriage. The decision of the Ecclesiastical Courts cannot be final and conclusive between the parties. Marriage between the parties creates civil rights, and thus the Ecclesiastical Courts have no jurisdiction to annul marriages and the civil rights of parties.59 In yet another case the full bench of the Delhi HC held that the Ecclesiastical law under which the marriage was dissolved by the church will not affect or govern the civil laws. Ecclesiastical Tribunals have no jurisdiction to adjudicate upon such matters.60 A Christian marriage can be dissolved only by a decree passed by the concerned Court based on the provisions contained in the IDA, and Ecclesiastical Tribunal has no jurisdiction to pass a decree of divorce.61 The Catholics Courts will have no legal standing and Catholics will now have to obtain a secular divorce. Thus, these churches having its ADR system for marriage and its annulment will now be devoid of civil effect.

4.1.6.2

ADR Institutions Under Islam

Since the beginning, Qada (judicial administration) held an important position in Islamic administrative law. Qadi/Kazi are titles of the functionaries who exercise 58 T.

Saroja David v. Christie Francis, AIR1966 AP 178. v. Alice, 1989 Cri LJ 1527. 60 Jecronimo Francisco Sacrafamilla Eric D’Souza v. Florence Martha D’souza nee Fernandes, A.I.R.1980 Del. 275. 61 George Sebastian v. Molly Joseph, AIR 1995 Kerala 16. 59 Jose

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the powers and perform the judicial and advisory functions. They expound on the principles of Muslim law and advise the civil Courts. However, during British Raj in India, the Adalat system was abolished in 1864. The Kazi ceased to function as Court advisers and retained only their non-judicial duties. This abolition was objected to by the Muslims who favoured the regulation of their cases as per Islamic law and tried by Kazis only and by no non-Muslim judge.62 The appointment of Kazi was retained, and the Kazi Act of 1880 regulated their powers. Both, the Darul Qaza or Sharia Courts that are run by All-India Muslim Personal Law Board and the Imarat-e-Shariah apply Islamic law principles.63 These Courts deal with the personal law of Muslim parties. They solve Nikah, divorce, inheritance, gift, Khula, and other issues by hearing the parties and delivering judgement without favour. Their proceedings are less time-consuming, less expensive, and in line with Quranic prescriptions. The Kazis and Naib Kazis are trained to administer justice in matters concerning the personal law of Muslims according to Shariat laws and the Muslim Personal Law (Shariat) Application Act, 1937. As an ADR, they are believed to reduce the burden of regular Courts by solving problems especially Muslim women issues with great care.64 Imarat-e-Sharia in Bihar is another organization established based on the cardinal principles of Islam and its Shariat laws. They try disputes between Muslims and are presided over by the Kazis whom the local Courts recognize as arbitrators. The parties voluntarily submit their disputes to the judge of this organization who will hear arguments, examine documents, and pronounce verdict following Islamic law. Its main objectives are to ensure applications of Islamic laws relating to marriage, divorce, inheritance, Khula, etc., to safeguard Muslim interests and rights.65 Shariat Court or Darul Qaza in Arabic term means the house of Kazi or an Islamic scholar. It settles the family law disputes between Muslim parties who submit their dispute for adjudication. Since 1919, these Courts are functional in several states. They follow lucid judicial procedures and speedily decide cases without the payment of Court fee and other undue expenses. Their decisions are commonly respected and readily followed by the parties. Some civil Courts even accept them as arbitration awards, and decrees are issued to confirm them. However, under state law, a Shariat Court decision cannot attract the application of the principle of res judicata and the parties to a decision would be free to take their case to the competent state Court.66 Among the various objectives of Darul Qaza, some twenty-four are directly related to women. These include settling claims for separation on the grounds of nonpayment of maintenance, claims for Khula, Haqq-e-hazanat (the right of the mother to rear her children), Mehr and alimony, the return of articles given in jahez (dowry), protection of the interests of minors, confirmation of the validity of a Nikah and 62 Mahmood

(1977, pp. 62–63). (2012, pp. 1027–1063). 64 The Times of India (July 8, 2014, p. 9) Shariah Courts in Pune solves Muslim Women Issues with Great Care. 65 Mahmood (1977, p. 68). 66 Hallaq (2009, p. 57). 63 Redding

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certificates of marriage and for authorization of Nikah.67 But the Shariat Courts are often criticized stating that ‘only obedient, moral, battered, and materially neglected women are deemed worthy of the Qazi’s support’.68 The officers presiding over these disputes often hold paternalistic views but regard themselves as committed towards women welfare.69 Through a PIL, their validity was challenged in the SC for being a parallel form of the judiciary and so is illegal, illegitimate, and unconstitutional.70 The Court upheld both these institutions and while refusing to ban them observed that these institutions are permanent ADR to resolve family and matrimonial disputes of consenting parties. Instead of approaching a civil Court if both parties agree they may approach them for dispute resolution. As an ADR mechanism, it strives to settle disputes outside the Courts, expeditiously, amicably, and inexpensively. Since it has no power or authority to enforce its orders, it cannot be regarded as in conflict with or parallel to the Indian judicial system. It is within the discretion of the parties who volunteer to use this forum to accept, ignore, or reject its decision. Thus, it held that they are like arbitral proceedings that bring amicable settlement between the parties. It is not a parallel judicial system established in derogation of or conflict with the recognized judicial system. More recently hearing an appeal on this decision, the Court overturned its previous decision. It observed that power to adjudicate must flow from validly made law and these Courts established to settle disputes of Muslim parties are neither created nor sanctioned by any laws. Hence, they do not have the power to adjudicate the rights and liabilities of Muslims. The decisions by them are mere opinions that are neither binding on anyone nor enforceable. Further, it clarified that their existence is not illegal and is merely a form of informal justice delivery system that brings about amicable settlement among Muslim parties.71

4.1.6.3

The Caste Panchayats (Village Councils) and Customary Divorces

The caste Panchayats are functioning in various states of the country and deal with disputes like declaring a marriage invalid. The poor parties belonging to the weakest sections of society approach them to get swift justice and their village level.72 Under HMA, apart from Section 13 providing different modes of divorces, Section 29 validates the customary divorces. The Act permits rights recognized by custom or conferred by special enactment and without the need to approach any state authority for the solemnization of the marriage or for dissolving it without official law.73 67 Available

at: https://www.imaratshariah.org/darulqaza.html#qaza (Accessed on June 06, 2020). (2017, p. 158). 69 Vatuk (2005, p. 46). 70 Vishwas Madan Lochan v. Union of India, Writ Petition (Civil) No. 386/2005. 71 Vishwa Lochan Madan v. Union of India (2014) 7 SCC 707. 72 Malhotra and Ranjit (2012, pp. 148–149). 73 Agnes (2015, p. 10). 68 Tschalaer

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Section 29(2) of HMA is an exception to the general law of divorce, and it expressly saves the customary mode of divorce. But the prerequisite is that the custom has to be specifically pleaded and established with the help of cogent evidence. The party relying on the customer has to prove that it has all the characteristics of a valid custom. Before allowing a custom, it needs to consider if the public policy, good morals, and the interests of society permit them. The application of custom should be in tune with the manner, reason, or cause specified in law and not contrary to the law of the land or opposed to public policy.74 The custom must be specifically pleaded based on which a marriage is sought to be dissolved. The person propounding such custom or procedure to be followed for dissolving marriage and claiming its prevalence within the community must be established through satisfactory evidence.75 Also, while claiming a customary divorce, evidence and particulars about when and how divorce had taken place and the existence of custom in the community have to be proved. Custom should have a long-standing practice followed and recognized by a particular community, and its details must be given in the pleadings or evidence.76

4.1.7 Others (Fast Track Courts, Mahila Adalats and Tribunals) 4.1.7.1

Fast Track Courts (FTC)

In tune with Article 275 of the Indian Constitution, the 11th finance commission of India recommended for FTC scheme and sanctioned a huge grant for this purpose. It permitted the creation of FTC for the long-pending cases in various district and subordinate Courts. The idea was to dispose of protracted cases expeditiously and within a time-bound framework. The Ministry of Finance sanctioned money under the category of ‘special problem and upgradation grant’ for judicial administration. Initially, the scheme was for 5 years and was to end in March 2005. However, the SC of India supervise the functioning of these Courts stated that the scheme should not be disbanded abruptly. It directed the Union of India to continue them for a further period of 5 years (up to 31 March 2010 and later) and further sanctioned grants for it.77 However, after discontinuation of central funding, the scheme is now run by the respective states.78 As of December 2018, there are 699 FTC that are functional across the country. These Courts deal with cases about heinous crime, 74 Yamanaji

H. Jadhav v. Nirmala, 2002(2) SCC 637. and Ors. v. M. Chandralekha, AIR 2005 SC 485. 76 Virendrakumar v. Preeta, 2009 (3) ALL MR 628. 77 Brij Mohan Lal v. UOI & Ors (2005) 3 SCR 103. 78 In case of Brij Mohan Lal v. UOI & Ors, reference was made to the case of All-India Judges’ Association and Ors. v. Union of India and Ors. (2002) 2 SCR 712 that observed that the expense on administration of justice in the states is incurred by the respective states. The Court in this case observed the states to approach the Finance Commission or Union of India for more allocation of funds. 75 Subramani

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causes related to women, children, senior citizens, disabled, litigants affected with terminal ailments, and civil nature cases of property disputes that are 5 years old.79 Under the scheme, ad hoc judges are appointed to preside over the FTC.

4.1.7.2

Role of Women’s Court or Mahila Adalats

The Mahila Court is an attempt to overcome some of the problems faced by women in the litigation process. As an ADR forum, they do not bar the intervention of the normal Courts. They are instituted in India to reconcile matrimonial disputes through counselling and mediation between the disputing parties. During the proceedings, compromise, settlement, and mutual commitment remain central for encouraging parties to settle their issues. It aims at keeping the family unit intact by dealing with matrimonial disputes, cruelty, DV, shelter, and maintenance cases concerning women. These specialized Courts dispense speedy justice to women facing legal battles due to matrimonial discords. Through these Courts, the deprived and less informed women can get swift justice and negotiate their monetary assistance issues in an informal and congenial atmosphere.80 Some of these Courts are run by voluntary organizations with assistance from government bodies. Others are independently run by philanthropic NGOs committed to women’s cause. Thus, they have a mixed composition of being run by the State, NGOs, or women’s cooperatives committed towards promotion, welfare, and empowerment of women. The Court is presided over by women judges, and all women mediators try to intervene in a friendly way.81 After due considerations of life realities and sociocultural contexts, the peer mediators who share similar cultural assumptions and beliefs suggest solutions to women.82 These Courts offer several advantages to women victims who are informally and sensitively heard about their claims and grievances. These Courts provide a setting in which women can speak without any fear and inhibitions. This kind of congenial environment helps them in resolving domestic issues they face and proves to be a great motivation to women who are reluctant to approach the state machinery for redressal of their disputes. Despite being partially state-sponsored, their judgements have no authority under the judicial system. They reduce hostility among the couple and offer congenial space to women victims. The Courts are criticized that in them women might end up accepting stakes that jeopardizing their interest. They might be persuaded to enter into a settlement that is not being to their liking. Although women face violence and abuse both emotional and physical, the volunteers always stress the reunion. Believing that it will not be in the best interest of the women to sever the matrimonial ties or divorce their husband defies the radical resolution.83 79 Available

at: https://doj.gov.in/node/1139078 (Accessed on February 22, 2020). (2013, p. 76). 81 See Footnote 80. 82 Vatuk (2013, p. 97). 83 Vatuk (2001, pp. 226–238). 80 Vatuk

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Tribunals

The word ‘tribunal’ is derived from the Latin term tribunus which means ‘a raised platform with the seat of a judge, who elected by the pleas, protect their interests’. According to the Oxford Dictionary, the tribunal means ‘judgement seat’ or ‘a court of justice’. In India, the 42nd Amendment of 1976 introduced the concept of the tribunal under Part XIV-A (Articles 323-A and 323-B). Further, Articles 136 and 227 of the Indian Constitution mention about the tribunals. Apart from the regular Courts, some specialized tribunals are functioning in India.84 Apart from them, large numbers of quasi-judicial and administrative tribunals are created as an alternative method of dispute redressal. These quasi-judicial tribunals provide a quick, informal, and economical remedy in a large number of disputes and thus help in justice administration.85 Evolved from the 1970s onwards, they are an alternative to the regular Courts. Though the tribunal and Courts have many common features as both have a formal structure independent of the department whose matter they adjudicate upon, both are required to follow formal procedures and perform a judicial function.86 However, there are several distinguishing characteristics of the tribunals that separate them from the Courts. The tribunals may not be required to follow the procedures prescribed by the IEA, CPC, or CrPC but governed by the Act under which it is constituted and the procedures laid down. It might be able to regulate its procedure. A person expert in the subject matter of the dispute presides over the tribunal. They provide cost-effective adjudication as compared to Courts. Unlike the Courts, the tribunals may have a mixed composition consisting of persons with judicial experience and those without such experience. The chairman and members of a tribunal are appointed by the government who may not necessarily belong to the state judicial services. There are single-member tribunal as well as multi-member tribunals. As an alternative forum, tribunals are undoubtedly helping the regular Courts in offloading their burden. But practically these tribunals are facing problems of overcrowding resulting in not being able to provide timely relief. The consumer redressal forums and commissions are proving inadequate in efficiently dealing with the growing volumes of complaints. They also face heavy pendency and long delays.87

84 Some of them are: the Income Tax Appellate Tribunal (Section 253 of the Income Tax Act, 1961); the Industrial Tribunal or Labour Court under the Industrial Dispute Act, 1947, deals with appeals against the findings of the domestic disciplinary authorities in labour matters. The State Transport Appellate Tribunal under the Motor Vehicle Act, 1988, hears appeals against the decision of the State Transport Authority of the Regional Transport Authority. 85 Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. 1950 AIR 188 and Jaswant Sugar Factories v. Lakshmi Chand, 1963 AIR 677. 86 Sathe (1996, p. 10). 87 Singh (2009, p. 509).

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4.2 Family Courts and Mediation Centres as Harbinger of Peace and Closure As discussed, there is an increase in the incidence of divorces and family disruptions due to structural changes in society, change in family dynamics, interaction pattern, and role functioning. Law seeks to preserve the two fundamental units of society, i.e. family and marriage. Due to huge pendencies and matrimonial disputes, taking a variety of forms requires different sorts of handling. In this direction, the institution of Family Courts and court-annexed mediation centres were conceived. These two important ADR mechanisms are provided in a court-annexed setting and thus fully sponsored by the government. They aim at providing speedy and expeditious justice, especially to women litigants. They follow an informal process and provide a conducive setting to battered women for seeking remedies under laws. The important role of these two prominent ADR processes is discussed in this section.

4.2.1 Family Courts Family matters are different from normal disputes; thus, they need to be dealt with differently. A demand for enacting laws that would ensure economic rights for women within marriage will make divorce proceedings speedy, less expensive, less traumatic and just for a woman and by keeping unequal power balance in consideration was made for long.88 In 1975, the CSWI report recommended separately deal with family matters. Later, the Law Commission of India in its 54th (1973) and 59th report (1974) recommended the establishment of FC. Finally, after a long persistent demand by the women’s groups the Family Courts Act of 1984 (hereinafter FCA) was enacted. The Act aims to make FC a forum that is easily accessible to women, and they can voice their familial concerns in a simple way.89 FC is an ADR forum setup in various cities for the efficient disposal of marital disputes. They settle the dispute between the parties through reconciliation and consensus.90 The various personal laws covering matrimonial disputes and the substantive right and obligations of the parties under them remain the same. Thus, the FC made changes in procedure only and the parties will still be governed by their law. For example, if a Hindu woman wants a divorce the petition will be filed in the FC and the dispute will be tried under the provisions of HMA. The FC is given the jurisdiction to settle these disputes by following the FCA and not overriding the personal laws. The majority of the states have constituted their own FC that debars the regular Courts from entertaining a matrimonial dispute.91 As of 31 December 2018, around 535 FC are functional in the country with twenty-one in Delhi.92 88 Agnes

(1996, p. 285). (2015, p. 96). 90 Solanki (2011, p. 121). 91 Maharashtra, Bihar, Andhra Pradesh, Delhi, Karnataka, Tamil Nadu, Kerala, Orissa, U.P., Rajasthan, Gujarat, Assam, and Tripura to name a few. 92 https://doj.gov.in/sites/default/files/Family%20percent20Courts%20percent20pdf.pdf. 89 Basu

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As per the preamble of FCA, its main objective is to establish Family Courts for promoting conciliation, to secure speedy settlement of disputes relating to marriage and family affairs and for connected matters. It is also a part of the trends of legal reforms concerning women that facilitate satisfactory, smooth and effective disposal of disputes concerning the family. It is conceived as a forum that is expected to work expeditiously and in a just manner. Their approach is to ensure the maximum welfare of society and dignity of women.93 Women may not always be well educated and have the means to fight long legal battles. The Act has speedy disposal of cases concerning family and more specifically that impacts women. To ensure justice with dignity the act is a reform that has women concern at its core. These Courts were different from the hostile and intimidating Court atmosphere marred with delays, cumbersome procedures and the sexist and anti-women interpretation of laws by judges.94 Section 3 provides for the establishment of FC. It provides that the state government after consultation with the HC shall establish FC for every area of the state consisting of a city or town whose population exceeds ten lakhs and in other areas as it may deem necessary. These Courts deal with matrimonial cases concerning legality of marriage, restitution of conjugal rights, judicial separation, divorce, property rights, guardianship and custody disputes and maintenance under Section 125 of CrPC.95 The criminal cases concerning assault, dowry demands, offences under the IPC, DPA are not tried by these Courts but by the criminal Courts. FC may receive as evidence any report statement document information or other matter that may assist in resolving the dispute before it and irrespective of if that evidence would be otherwise irrelevant or inadmissible under the IEA. As per Section 15 of the Act in suits and proceedings before a FC, it shall not be necessary to record the evidence of witnesses at length. The FC doesn’t need to record the evidence of what the witnesses have deposed. Further, under Section 16, evidence may be given by way of affidavit. Section 11 of the Act makes it obligatory on the part of the Court to hold the proceedings in camera if any party so desires or if the Court deems fit. The Act doesn’t allow the parties to bring a lawyer to represent them as a matter of right. In complicated questions, the judge may allow one or both parties to be represented by a lawyer or if it feels that uneducated and poor litigants will be unable to conduct their case well without legal assistance.96 The judgement of the FC is like a decree of a regular Court. 93 K.A. Abdul Jaleel v. T.A. Shahida (2003) DMC 765 SC; NCW (2002) Family Courts: Report on Working of Family Courts and Model Family Courts, New Delhi. 94 Ghadially (1996, p. 174). 95 The application may be filed under the following laws: Chapter IX of the Criminal Procedure Code, 1973; Hindu Marriage Act, 1955; Hindu Adoptions and Maintenance Act, 1956; the Hindu Minority and Guardianship Act, 1956; Dowry Prohibition Act, 1961; Muslim Personal Law (Shariat) Application Act, 1937; Dissolution of Muslim Marriages Act, 1939; Muslim Women (Protection or Rights on Divorce) Act, 1986; Parsi Marriage and Divorce Act, 1936; Indian Christian Marriage Act, 1872; Indian Divorce Act, 1945; Special Marriage Act, 1954; Child Marriage Restraint Act, 1929; Anand Marriage Act, 1909; Foreign Marriage Act, 1969; Guardians and Wards Act, 1890 (8 of 1890). 96 Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi, AIR 1991 Bom 105.

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Practically, once the petition is filed in the FC, the judge may on the very first date of hearing refer the parties to the counsellor attached to the Court. The parties will visit the counsellor to sort out their dispute and the counsellor will regularly suggest those ways to reconcile their difference. If parties agree on conciliation its terms will be written and signed by the parties and countersigned by the counsellor. The MOU will be referred to the Court where the case is pending. The judge will direct the parties accordingly. In case of no conciliation, the counsellor will try to amicably settle the connected disputes relating to Stridhan, dowry, maintenance and child custody and suggest the parties file for divorce by mutual consent. The Court fees are usually nominal. These Courts are especially beneficial to women litigants coming from different communities. Through the amendment in IDA by the Indian Divorce (Amendment) Act, 2001 and the Marriage Laws (Amendment) Act, 2001 the concurrent jurisdiction granted to both FC and HC is divested in FC.97 The ordinary Courts follow the adversarial process against conciliation making marital litigation less time-consuming. The FC resolves cases within a few months only unlike the adversarial Courts where it may linger for years. The in-camera proceedings are suitable for women as they can share their grievances without any shame and guilt. The counsellors give therapeutic assistance against the lawyers who might not be well suited for such sensitive cases. A woman may seek injunction orders to live in the matrimonial home from either the civil Court under the provisions of CPC or Specific Relief Act, 1963 or by making an application in the FC if established. The application or petition filed before the FC must contain the party’s particulars and the details of the reason for seeking an injunction. To enforce the FC decree, the salary and bank accounts can be attached or sealed when there is a default in payment. In Delhi, beginning from the year 2009 the FC under the FCA was inaugurated in various complexes. They sort out family disputes in congenial, litigant friendly and supportive surroundings instead of the overcrowded and repelling Court environment. They adopt an approach radically different from ordinary civil proceedings.98 These Courts are witnessing an overwhelming response. Full-time psychologists counsel and guide the disputing couples facing a rough phase in their marriage. The Courts deal with issues of maintenance, custody, guardianship and divorce.99 Their counselling and consultancy services are staffed by qualified family consultants who possess knowledge and expertise in working with children and families experiencing relationship difficulties.100 The FC employs a mix of conciliation, mediation and adjudication for conflict resolution and to achieve constructive cooperation from parties to enter into a compromise without fighting in the Court. The Act aims to protect and preserve the institution of marriage, promote the welfare of children and settlement of disputes by conciliation through counselling and speedy justice. The parties are directly involved in the 97 Sebastian

Champappilly v. The Registrar High Court of Kerala, 2002 (3) KLT 22. Abdul Jalees v. T.A. Sahida (2003) 4 SCC 166. 99 Khanolkar (2005, p. 348). 100 Nagasila (1992, p. 1735). 98 K.A.

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FC proceedings and the services of any person can be sought for assisting the Court in discharging the function and objectives of FC properly. While selecting the judges of FC, chapter II of the Act states that preference should be given to the woman (Section 4(4) b). The Act stipulates for the association with this Court of institutions and organizations engaged in the social welfare of persons, engaged in promoting the welfare of the family or persons working in the social welfare field or experts in family matters. It also stipulates for the appointment of counsellors, officers and other employees necessary for its functioning. Thus, the FC is truly beneficial to women as these Courts are like a one-stop solution for settling several connected cases else for which the women have to go to Court again and again. The FC has the potential of settling not only one but almost all the connected/related cases in totality saving time money and energy of the parties. To provide conciliation, speedy settlement, non-adversarial approach, multidisciplinary strategy to deal with family disputes, informal and simple rules of procedure and gender justice are the philosophy of the FC.101 Section 9 of the Act makes it imperative for FC to make efforts for settlement just like Section 23(2) of the HMA. However, the FC is often criticized for in reality these Courts have preservation of marriage as their sole agenda and that too often at the expense of women not provided gender equality.102 Studies show that the clichéd thinking of counsellors about compromising a family dispute rather than settling a case through a judgement appears to be a reason for stressing reconciliation among the couples who seek separation. Reconciliation among parties is regarded as an important outcome of a dispute for children and women’s sake on the logic that women will be better off within the patched-up marriage compared to being divorced.103 The FC is stated to have failed to usher in a new and dynamic approach to family litigation and to ensure gender justice. They are not less formal or less technical or have a women-friendly environment.104

4.2.2 Mediation Centres In the fifth century B.C., Confucius propagated the idea of mediation for disputants to reach an agreement through constructive discussion and with help from an unbiased person. There is a long tradition of mediation in Jewish communities. The American Jewish community set up the Jewish Conciliation Board in New York in 1920 to encourage consensual settlement of disputes. Apart from formal mediation procedures, many informal kinds of mediation are used all over the world. In parts of Africa, there is a tradition of calling a moot or community meeting where the respected local leader helps those involved in a dispute to settle it cooperatively. In 101 Jamwal

(2009). (1996). 103 Basu (2015, p. 103). 104 A study of Family Courts of Tamil Nadu (p. 2). Available at: https://archive.nyu.edu/bitstream/ 2451/33913/2/Family%20Court%20Ekta.pdf. (Accessed on September 21, 2020). 102 Agnes

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Modern China, government-sponsored mediation is widely used to resolve disputes based on societal principles of peaceful coexistence. In Bangladesh, mediation is tremendously successful in delivering justice to the poorer sections of society. Mediation is the norm of dispute resolution in America and litigation is the exception. In England, the Courts do not award costs if a litigant unreasonably rejects mediation.105 For a long, mediation has traditionally existed in our Indian society. Caring elders and respected members were mediating the disputes at the family level. A variety of conflicts was managed in a well-organized form for maintaining societal cohesion and equilibrium. The concept of mediation and conciliation can be traced to ancient India. Kautilya’s Arthashatra suggested the use of conciliation to prevent discontent and disputes.106 At the community level, Panchayat was resolving the disputes through mediation. With effect from July 2002, the Indian legislature through the Code of Civil Procedure (Amendment) Act, 1999, amended Section 89 of the CPC and envisaged mediation as one of the modes of settlement of disputes. Thus, Section 89 has been introduced to promote ADR. It recommended that the Court may require personal attendance of parties to arrive at an amicable settlement. Once the parties fail to settle it through the ADR methods mentioned in this section the suit could proceed further as a litigation proceeding. The 13th finance commission of India emphasized the need for training of judges and advocates as mediators and allocated huge funds for this purpose. Box 4.1: The Mediation and Conciliation Project Committee (MCPC) The MCPC was constituted on 9 April 2005 by the then Chief Justice of India. Its objective was to encourage amicable resolution of disputes pending in the Courts following Section 89 of the CPC. The committee which is part of the legal aid programme has been able to bring notable contribution concerning mediation. To promote awareness, it has been organizing national-level mediation programmes. It has created a pool of mediators whose creative and innovative style has made differences in the case outcome. Time and again, it has been conducting training sessions for the trained mediators to further enhance their skills. It even initiated a Court integrated mediation process which has proved to be highly successful. Encouraged by the results, the MCPC has conducted awareness, referral judges, training, and mediation training programme in about a dozen states and several cities across the country107 In Salem Advocate Bar Association, Tamil Nadu v. Union of India,108 the SC upheld the constitutional validity of this reformed section and appointed a committee 105 Knowing

and Encouraging Mediation: Court Integrated Mediation. and Mohta (2008, pp. 534–535). 107 Annual Report (2018–2019, p. 21). Available at: https://main.sci.gov.in/pdf/AnnualReports/Sup reme_High_Court_AR_English_2018-19.pdf (Accessed on March 20, 2020). 108 AIR 2005 SC 3353. 106 Mohta

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to frame rules and implementation of mediation procedures in civil Courts. The committee framed the model rules ‘Alternative Dispute Resolution and Mediation Rules, 2003’ later approved by the SC and direction was issued to every HC for referring to mediation, conciliation and arbitration mandatory. It was only in 2007 onwards that the process of mediation virtually commenced in various states. Court-annexed mediation centres are now functioning at the various Courts across India. A pilot project on mediation was initiated in Delhi in 2005 with the first permanent mediation centre. Today, the court-annexed mediation centres are established in Courts that dispose of a large number of cases referred to it. The courtannexed mediation programme applicable to cases filed or pending in the Courts is vastly famous now. In this mediation programme, the Court provides mediation services as a part of the Indian judicial system. The judge who refers a case to the court-annexed mediation centre keeps general supervision during this while. When the case is referred for mediation, the Court stays the proceedings pending before it except in the case where urgent relief is required by any party to a dispute. The lawyer hired by the parties represents them before the Court and the mediators. The litigants get a chance to participate in the resolution process and the mediator remains unbiased throughout the mediation proceedings.109 The mediation services are provided free of cost and freely available within the Court complex. For this, the SC and HC have framed rules and established mediation centres in all the SC, HC and district Courts in the country. In case of settlement of the dispute, it is recorded into an MOU and sent back to the Court for a final decree. No appeal lies against the final court-annexed mediation settlement approved by the Court. To make the mediation process short, three months is granted for the case referred to get settled else the matter is treated as unsettled. On the plea of the parties, it can be again referred back to the mediation centre. The settlement is made effective by the Courts through an order or decree passed in terms of the MOU. A mediation settlement is like an arbitral award on agreed terms and enforceable as a Court decree.110 Nowadays pre-suit mediation is becoming more widely accepted. In the case of K. Srinivas Rao v. D.A. Deepa,111 the Court observed that: some mediation centres have set up “Help Desks” at prominent places including facilitation centres at Court complexes to conduct pre-litigation mediation. Several matrimonial disputes are settled and these centres have a good success rate in pre-litigation mediation. If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled.

So, both the counsellors as well as the mediator try to bring about reconciliation between the litigating parties in a matrimonial dispute through the process of negotiations. The difference between the role of counsellor and mediators is very fine. In 109 Bhatt

Niranjan J. (October 15, 2002) Court Annexed Mediation, Legislative Initiative for Court Annexed Mediation, paper presented at fourth Indo-Us legal forum meet at US Supreme Court on India Advantages Of Court Annexed Mediation. 110 Section 74 of the A&C Act and Section 36 of the A&C Act, respectively. 111 AIR 2013 SC 2176.

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counselling, the counsellor focuses on the feelings, perceptions and relationship of the parties whereas in family mediation the focus on practical arrangements, finances and cooperative decisions.112 Mediation centres aim to help parties in reaching a consensual settlement of disputes. In this process party participates, collaborate and cooperate. Mediation provides a neutral environment in which parties can freely and confidentially present their case. Mediator as a neutral third party helps both the parties in limiting their issues. Though mediation is an informal process but is a structured process that follows certain settled stages. These stages are the introduction and opening statement, joint session, separate session and closing or agreement. To simply state mediation includes recognizing the problem, choosing the process like mediation, selecting the mediator, collecting the related facts, defining the problem and developing options, redefining positions to rationality, bargaining, drafting the agreement and drawing a memorandum of understanding.113 The mediation process is confidential, voluntary, quick, inexpensive, and nonbinding till the settlement is converted into a written agreement. Once the settlement is reduced to writing, this agreement will be like a contract (Section 74 of the A&C Act). Mediation applies to varieties of disputes concerning commercial and medical malpractices, suits for an injunction, specific performance, suit for recovery, labour management disputes, motor accident claims cases and family and matrimonial disputes. As far as criminal cases are concerned, cases of harassment on account of dowry and cruelty under Section 406/498-A IPC and cheque dishonour cases under Section 138 of Negotiable Instruments Act, 1881 are suitable for mediation. In India, a facilitative form of mediation is practised. In this, the mediator facilitates discussions and resolution of the dispute among parties. He keeps a check on the power imbalances.114 In severe disputes, mediators can perform the role of both counsellors and conciliators. In contrast to commercial mediation, family mediators majorly use therapeutic counselling with a focus on relationships.115 To begin with, the mediator explains the mediation process and ground rules. He will appraise the parties about his role, will establish his neutrality and will initiate the process by maintaining confidentiality in the setup. The mediator will begin with gathering facts and parties interests and will create a suitable environment in which parties can interact and amicably settle their dispute. The mediator may convene a separate session for each party to understand their specific grievances and share confidential information. This stage is crucial as the parties can create options that suit their needs and lead to an amicable settlement. In the end, the mediator will help the parties in reducing their agreed terms into a binding settlement. The functional stages are followed with

112 Parkinson

(1997, p. 86). and Charlesworth (1996, p. 2). 114 Parkinson (1997, p. 402). 115 Arnold Tom in Rao and Sheffield (2002, p. 215). 113 Haynes

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flexibility and for maintaining momentum in the entire process.116 Thus, mediation is a confidential process in which parties meet and discuss things in a private setting and the mediator assists the parties especially women to negotiate the acceptable solution. The process aims at a win–win solution, resolve the underlying issues so that the cordial relationship and harmony among the parties is maintained. The larger goal is to reduce hostility and escalation of disputes for maintaining peace. The mediation can also be a private mediation in which the parties undertake independent mediation separate from the Court. In this type of mediation, expert mediators provide mediation services for which the expenses are born by parties. India is still working towards framing laws governing private mediation. As of now, the agreement arrived through them are treated as binding contracts.117 Several institutions are providing private mediation services in India. Some of the institutions are the International Council of Alternative Dispute Resolution (New Delhi); the International Centre for Alternative Dispute Resolution (New Delhi); the Indian Institute of Arbitration and Mediation (Cochin); India International ADR Association (Cochin). Box 4.2: Sample of Counselling Referral Order IN THE COURT OF SHRI…………..: PRINCIPAL JUDGE: FAMILY COURTS………………….………DISTRICT : ………………..COURTS, DELHI Referral Date:………………………… Case No:.……………………………… …………………..…………………………………..…….Petitioner/Petitioner no. 1 Versus .…………………………………………………….…….Respondent/Petitioner no. 2 Next Date of Hearing:…………………………………...……………………………. Nature of Case:……………………………………………………………………….. COUNSELLING REFERRAL ORDER Parties are sent to Principal Counsellor…………………………………………for their Counselling in the above case. Counsellor to submit their report. (…………………….) PRINCIPAL JUDGE, FAMILY COURTS ……………………………………….,DELHI Signature of Petitioner/Petitioner no.1 Respondent/Petitioner no.2 Ph/Mb. No. of Party…………… Name of the Advocate………………. Ph/Mb. No. of Adv………………

116 Mediation

Signature of Ph/Mb. No. of Party…………… Name of the Advocate………… Ph/Mb. No. of Adv………………

Training Manual of India, p. 24. 74 in the Arbitration and Conciliation Act, 1996: Status and effect of settlement agreement: The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under Section 30.

117 Section

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Box 4.3: Sample Mediation Agreement

MEDIATION CELL FIR NO. UNDER SECTIONS PS …...…………………………………… V. ……………………...…….…………… Connected case: 1. FIR No. …………..…..at P.S. …….………..…..Registered by the petitioner-wife 2. Case No. …/2014 pending in Family Court…………..…..filed by the respondenthusband. Next Date of Hearing:…… ……………..Date of settlement Present: ………………………………………………………………………… The present case is received for Mediation from the Hon’ble Court of……………….. Process of Mediation explained to the parties. Joint and separate sessions held. Brief facts of the case are that the marriage between the parties was solemnized on ……………. Due to temperamental differences and certain other reasons, they have been living separately from each other since…………There is one female child namely……………..born on…………… from the said marriage. After mutual discussions, both the parties have amicably and without any force or coercion, resolved their disputes in respect of present case and the above cases on the following terms and conditions:1. That both the parties have mutually agreed to file a joint petition for getting divorce by mutual consent…. 2. In view of the terms of this settlement-agreement, both the parties herein undertake to withdraw all the above pending cases …... 3. Both the parties undertake that henceforth they would not file any civil/criminal complaint or any case against each other…... 4. The Respondent, ……… has further agreed to pay a sum of Rs…… (Rupees …..Only) in three installments….. to Mrs. ………., Petitioner herein as full and final settlement towards all and any past, present and future claim including her maintenance, Stridhan, alimony expenses etc. Mrs. …………,……. 5. That the respondent Mr. ……… has agreed to pay the aforesaid amount of Rs…… (Rupees …..Only) in three installments….. 6. That the custody of their daughter namely …………… 7. By signing this Agreement the parties hereto solemnly state and affirm that they have no further claims or demands against each other and all the disputes and differences have been amicably settled by the parties hereto through the process of Mediation. 8. The parties undertake before this Hon'ble Court to abide by the terms and conditions set out in the above mentioned Agreement, which have been arrived without any coercion, duress or collusion and undertake not to raise any dispute whatsoever henceforth. 9. In case any of the parties does not abide by the terms and conditions of this settlement, other party shall be at liberty to take appropriate action as per law.

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10. That both the parties shall bear their respective cost of litigation. 11. That the contents of this settlement have been explained to the parties in vernacular and they have understood the same. Both the parties undertake that they have signed the above settlement after going through and understanding the contents and they have settled the dispute between themselves of their own will and without any force, pressure or coercion from any quarter. ------------------------------------------------------------Signature of Complainant /wife

---------Signature of Respondent/husband

----------------------------------------Signature of mother of Complainant /wife -------------------------------------------------------------------------------Signature of Advocate Signature of Advocate (…………………………..) Mediator Parties are directed to appear before the Hon’ble Referral Court on the date fixed i.e. ………along with their respective counsels. Copy of the settlement is given to the parties free of cost.

4.3 Role of the ADR Practitioners in Settling Matrimonial Disputes As per the rule of separation of power, the three wings of the state, i.e. executive, legislature, and judiciary, work within their respective sphere. The legislature makes the law but the judiciary interprets it according to the need of the society. Because of the continued efforts from various functionaries, the beneficial provisions of FCA were enacted and the mediation centres that promote amicable settling of matrimonial litigation were made a reality. Some functionaries have an important role in the ADR process. They have to discharge their role efficiently, effectively and to enforce the reconciliatory measures. They advocate, assist and encourage parties to utilize the process of counselling, mediation and reconciliation.

4.3.1 Role of Mediators In matrimonial disputes, the mediation process is preferred as it offers a faster solution and qualitatively superior solution which is not always available in law.118 A mediator is a third neutral person who is required to be impartial, fair throughout the process of settlement of the dispute and is allowed to meddle in the subject matter of the 118 Goel

(2005, p. 34).

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dispute by either party or both the parties.119 In matrimonial disputes, the mediator might perform the role of counsellor and conciliator. He facilitates discussion and resolution of disputes. Once the settlement is reduced into a written agreement, it becomes enforceable between parties just like a contract under the law of contracts (See Section 74 of A&C Act). A mediator is a neutral person, and he does not give his opinion, deliver judgement, or dictate the terms of the agreement to the parties.120 He facilitates and encourages both the parties to communicate their interests. He makes every effort for the amicable resolution of the dispute. He tries to bridge the personal or emotional barriers between parties that obstruct their settlement. The mediator can help find a creative resolution for settlement especially in cases where parties have an ongoing or significant past relationship; i.e. there is a strong incentive to settle the case else the cost of litigation will be incurred. During the process, the mediator can primarily follow two approaches or function either facilitative or evaluative. In his facilitative role the mediator tries to enhance communication among the spouses whereas in the evaluative role he guides the parties.121 He can do evaluative mediation which is more often in monetary agreements. In this role, the mediator provides a realistic view of the negotiating positions and legal aspects of the dispute for helping and guiding the parties to evaluate their case and the options for settlement. The facilitative role of the mediator signifies the soul of mediation. In this role, the mediator creates an environment to facilitate parties to resolve their disputes voluntarily.122 He employs his expertise and experience to help the disputing party in assessing the situation and its solution to reach the mutually acceptable conclusion that they believe is fair.123 The focus is on the problem, position to which parties stick to, identification of interest and to break impasse or deadlock. The mediator facilitates communication between the parties. He maintains control over the process and guides the discussion through managing the interaction between parties. He uses various communication techniques to identify and remove the obstacles to communication between the parties. He tries to gather more and information about the dispute and the underlying interests. He assists the parties to the dispute to generate options and finalize a mutually acceptable settlement that will be reduced into writing. The third approach is transformative mediation in which the focus is on finding the nature of the relationship and the underlying cause of the dispute. Decision-making is controlled by the mediator who fosters empowerment and facilitates the parties to learn more about themselves.124 The transformative mediation is closer to a facilitative than an evaluative approach. The other forms of mediation include narrative mediation (based on stories built by disputants about conflicts); insight mediation (challenges, expectations, and assumptions which are relationship-centred rather than 119 Sinha

(2006, p. 37). Madhava (1998, p. 159). 121 Riskin (1996). 122 Gupta (2011, p. 224). 123 Stitt (2004, p. 3). 124 Stitt (2004, p. 5). 120 Menon,

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problem-centred); consultative intervention mediation (world view of disputants); external intervention (to unravel the conflict based on self-reflection); and strategic mediation (addresses the fundamental dysfunction that fuels the conflict. Focus is on communication and understanding).125 Through the identification, recognition, understanding and gentle exploration of the parties view, mediation, can bring about a paradigm shift in the parties approach to the dispute.126 In the Indian court-annexed mediation programme, the mediator plays a crucial role. Rule 3 of the Mediation and Conciliation Rules, 2004 prescribes the qualifications of the mediators or conciliators. A mediator can be a retired judge of SC of India, the HC or District and Sessions judges or retired officers of Delhi higher judicial service; district and sessions judges or officer of higher judicial service. He can be legal practitioners with at least ten years standing at the Bar at the level of SC or the HC or the District Courts or experts or other professionals with at least fifteen years standing and persons who are themselves experts in mediation and conciliation. For accreditation of the mediator, a 40-h training course is recommended. As compared to a legal advisor the mediator plays an altogether different role and responsibility. The legal advisor represents his party but the mediator has a responsibility to help both participants, equally and impartially. The mediators are generally advocates who have training in conducting mediation. During the separate and joint sessions, he helps the parties to vent out their emotions to get them in a fit frame of mind to resolve the conflict. A legal advisor is concerned with their client’s legal position but the mediator acknowledges and mutualizes feelings of both the parties to manage their anger and help them move forward according to the common concern.127 Different conflicts between the parties may call for a different approach from the mediator. There are many duties that a mediator has to fulfil. His role is challenging. He has to understand the problem of the parties and plan the schedule of the resolution, after examining social, economic and psychological factors related to disputes.128 The disputants coming with rough tempers have to be pacified first. Confidence must be reposed in him and should be made to feel understood. The mediator should have a good sense of timing as he should not start making suggestions too early or withhold, till it is too late to make them.129 He should work out the terms of separation without any ambiguity. He must provide them reasonable time so that creative, qualitatively superior and wholesome solution is possible unavailable under the law.130 He has to promote self-determination and ensure that the agreement reached is voluntary and non-coerced. He should be non-advisory unless the participants have given their express consent for it. He should respect confidentiality and check that parties perceive the outcome as fair and equitable.131 The mediator doesn’t exert 125 Ramanathan

(2012, p. 8). and Randolph (2004, p. xvi). 127 Parkinson (1997, p. 21). 128 Khanolkar (2005, p. 348). 129 Rao (1963, p. 35). 130 Goel (2005, p. 34). 131 Hardy and Rundle (2010, p. 105). 126 Strasser

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pressure on any of the parties for effecting immediate settlements as this will hit the voluntariness of this process. As an impartial, neutral and independent person mediator should empathize with the parties. He must respect the needs, interests, aspirations, emotions, sentiments of the parties to mediation. During the mediation session, he should be sensitive towards the specific needs of the women and must work towards neutralizing existing power imbalances among parties. Patience, persistence and perseverance and good communication skills must be his virtues. He should conduct the process in a balanced and even-handed way, without taking sides or favouring one party over the other.132 In the context of matrimonial dispute along with the party, the mediator has to discover a solution. He bridges the gap between the parties to arrive at a consensual proposal.133 During the entire negotiation process, he must act as a detached observer and should allow parties to think for them. The mediator must have commitment and involvement at an interpersonal level to provide the right atmosphere for conducive communication.134 He needs to focus on both the monetary and emotional aspects and the happiness of the parties. He cannot simply make suggestions for a solution. The proposal and solution must come from the parties. There are certain restrictions imposed on the powers of a mediator. He cannot force the attendance of any person or the production of any document. Since mediation is a consensual process the mediator cannot make an ex parte settlement and compel the parties to accept his decision. The settlements at mediation are not enforceable and the mediator acts till the parties desire or till the consent is withdrawn. He has no power to penalize an obstinate party.135 A mediator has an important role to play in marital disputes to enhance the support level and sense of equal bargaining as an equal participant in the abused women. In case of a power imbalance between battered and the batterer, he must be sensitive to the specific needs of the women. Mediator’s bias and stereotypes must be prevented through training to develop a sense of awareness about it to which the mediator might not be even conscious. Sexist remarks regarding women demand and their claims based on stereotyped notions must be checked. The mediator should have sensitivity towards his own attitudinal bias and understanding of gender and social issues so that the impact of biases does not twist justice especially in matrimonial cases with a history of spousal violence.

4.3.2 Role of Counsellors Marriage counselling is an art that requires a set of skills that may not always come naturally but developed through experience and education. A marriage counsellor 132 Parkinson

(1997, p. 13). (2005, p. 27). 134 Ramanathan (2012, p. 3). 135 Paranjape (2013, p. 363). 133 Goel

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should be one who has special knowledge of the problems and interpersonal relationships of family life.136 It is a professional engaged in by people of many disciplines after gaining specialized training and clinical internship in handling marital problems.137 The marriage counsellor should have studied the interpersonal relationships bonds, loyalties, conflicts, loves, rivalries, and hostilities.138 List of principles is recommended for professional orientation and practice in marriage counselling. The counsellor should be flexible, open-minded, objective in his approach, nonjudgemental and non-moralistic in his attitude. He should listen and not prejudging the case at hand based on his previous experience.139 He must endeavour to give his support, encouragement, reassurance, and unbiased perspectives about the problem.140 A marriage counsellor plays several roles during the counselling process. He may act like a moderator and evaluator but should not have any interest or association with the outcome. He should aim towards the consensual resolution of differences and facilitation of negotiation by providing a secure environment. Empowering party is an important characteristic of this ADR unlike the male-dominated and patriarchal conventional legal system.141 He should maintain confidentiality and containment of escalation, to encourage a problem-solving approach by facilitating communication.142 He must be able to deflate the inflated misunderstandings between the parties. He enables them to see the reasonableness of the other party’s point of view who might be preoccupied with its attitude to the problems. If necessary, he may meet both separately and make suggestions that could be acceptable as alternative solutions.143 Marriage counsellors may need to associate with experts from the other field for their help. As an unbiased person, the counsellor assists the parties in their settlement but never discloses the conversation details between him and the opposite party. After the conclusion of the process, he is required to submit a report that will merely indicate if the settlement was arrived at or not. The counsellor goes to the depth of the problem and evaluates the party’s dispute in the larger context of society. Children are another important factor in the process of reconciliation. A marriage counsellor has to have, in-depth knowledge of human emotions, like warmth, friendliness, exaltation, ecstasy, anxiety, fear, despair, repulsion, antagonism, hate, anger, prejudice, ambition, success, frustration, failure and anguish when dealing with the complicity of human emotions144 He must understand the basic social structure to which the husband and the wife belong. It helps him to

136 Kapoor

in Sehgal and Sherjung (1997, pp. 115–116). (1968, p. 3). 138 Kapoor in Sehgal and Sherjung (1997, pp. 115–116). 139 Mudd et al. (1958, pp. 43–45). 140 Mudd et al. (1958, p. 31). 141 Rifkin (1984, pp. 21–22). 142 Singh (2005, pp. 50–52). 143 Rao (1963, p. 36). 144 Wadhwa in Sehgal and Sherjung (1997, p. 2). 137 Rutledge

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understand the emotions of the concerned parties and to strive for a solution that will be in there and the children’s interest and interest of society.145 The counsellor is an expert in marriage-related problems. He tries to diagnose the problem and endeavours to bring about reconciliation or to attempt a separation. He will adopt a strategy that will be his own. The choice of the treatment will depend upon his perception of the problem.146 Some steps and precautions should be taken while dealing with individual cases. The counsellors are required to use their influence in such a way that they can collect detailed information about the client. For this, he should first build rapport with the client, to help him to open up and talk about his problems. Third parties presence should be avoided that may be counterproductive. The counsellor should approach the parties in such a way that it does not increase estrangement between them. The counsellor must remain neutral and objective throughout the counselling process. No judgement should be passed by him and he should not allow irresponsible allegations to be made by any party.147 Counsellors should encourage the client to express them fully.148 Thus, the role of marriage counsellors is ever increasing with the changing family environment. In India, several laws about counselling are enacted. The Delhi FC Rules, 1996 prescribes the terms and conditions of association of counsellors (Rule 11 of Chapter III). The counsellors (principal counsellors and counsellors) attached to the counselling centres are appointed by the HC in consultation with experts qualified in family and child welfare. For appointment as a counsellor, appropriate qualifications and work experience is prescribed (Rule 12). The counsellors attached to FC Courts provide equal opportunity to the parties to raise their concerns during the counselling sessions. These sessions are conducted to identify the underlying emotions behind the strained relationship for reconciliation of the differences.

4.3.3 Role of Judges Judiciary is one of the important pillars of Indian democracy. Judges administer the best justice with the least cost and in the shortest time span.149 As important third constitutional limb judges play a vital role in the criminal justice delivery system. While dealing with cases concerning women, the Indian judiciary keeps social justice concerns primary. The children are a consideration to prevent every form of discrimination against them. Several judgements delivered promote women’s rights in every socio-economic and political environment.150 The Indian judicial system has independently and effectively intervened on the issue of women emancipation by giving 145 Wadhwa

in Sehgal and Sherjung (1997, pp. 2–3). (1997, pp. 38–39). 147 Kapoor in Sehgal and Sherjung (1997, p. 122). 148 Wallis (1968, p. 34). 149 Anil Rai v. State of Bihar(2001) 7 SCC 318. 150 Singh Devinder and Kumar Dinesh in Singh (2009, p. 47). 146 Goel

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new meaning to the already passed laws and further direction where it was unclear or lacking. There is a host of judgement through which the Indian Courts have helped in ensuring a dignified status to the women.151 The Hon’ble SC is interpreting the Constitutional provision in favour of women. Despite these positive developments, often the judge’s fundamental sexist assumptions are manifested in these pronouncements. Given the judge’s male point of view and the incompetence and apathy of the police, it becomes difficult for women victim to sustain their charges during Court proceedings.152 Judge belongs to a family, a community, a group, a society. He has friends, relatives and foes and is a member of the society in which he lives. This being so, several social factors might influence a judge in his decision-making capacity.153 Further, the judges are the product of their own set of cultural values, stereotypes and biases. Culprits are acquitted of the crimes against women. Doubts are raised due to faulty investigation and collected evidence about not believing the victim and refusing to file an FIR, discouraging the victim from pursuing compliant under the guise of social and cultural impact, asking indecent, rude and bullying women during questioning insensitively in cases involving crime against woman.154 The state is interested in the security and preservation of the institution of marriage.155 Various legal provisions cast a duty on the judges to attempt and actively help in the compromise and reconciliation of a ruptured marriage (eg. Section 23(2) of HMA). The Court should attempt reconciliation between the parties through mutual dialogue. Efforts must be made to bring about conciliation to save a marriage especially in a case where the children will bear the brunt of its dissolution.156 Various reports have also emphasized the role of the judges. The selection of the judges dealing with marital disputes has to be done after careful consideration. Women judges or gender-sensitive male judges must be preferred to better judge and empathize with the plight of women and will render gender justice. Since family law cases need to give special importance to the socio-psychological aspects, it would help if the presiding judge has some training in these areas and he can always seek the aid of a full-fledged, qualified and skilled counsellor.157 Concerning ADR reference is a prerequisite to initiate the mediation or counselling proceedings. The role of referral judge begins immediately after admission or denial of documents. Though there is no formula for referring a dispute for mediation the Court must ensure that a request for sending the parties to mediation is not 151 C.B.

Muthamma v. Union of India, AIR 1979 S.C. 1868; Pratibha Rani v. Suraj Kumar, 1985 AIR 628; Vishaka and others v. State of Rajasthan, AIR 1997 S.C. 3011; Gita Hariharan v. Reserve Bank of India, AIR1999 SC 1149; Air India v. Nargesh Mirza, AIR 1981, SC 1829; Mrs. Neera Mathur v.Life Insurance Corporation, 1992 AIR 392; Apparel Export Promotion Council v. A.K. Chopra (1999) 1 S.C.C. 759. 152 Ghadially (1996, p. 175). 153 Vadackumchery (1997, p. 54). 154 Ghadially (1996, p. 174). 155 Love Kumar v. Sunita Puri, AIR 1997 P&H 189. 156 Gaurav Nagpal v. Sumedha Nagpal, AIR 2009 SC 557. 157 Parkinson (1997, p. 15).

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used as a mechanism for delaying Court proceedings.158 Delhi mediation centre is regularly conducting training and sensitization programmes for the judicial officers particularly in the light of judgement delivered in Afcons Infrastructure Limited and Another v. Cherian Varkey Construction Company Private Limited and Others,159 resulting in an enormous increase in the referral of suitable cases. The judges must do sensitive handling of cases relating to violence against women. Sticking to principles of natural justice, as unbiased practitioner they must avoid gender stereotypes in the sentencing policy. It becomes imperative for them to sensitively deal with these cases. Procedural impediments must be eradicated to ensure that justice is not only done but also appears to be done. An all-around change in attitudes is necessary160 judges have an additional obligation to secure that woman is equitably and impartially treated during the ADR process by being gender-sensitive to the gender bias for a thriving ADR programme in India. While making a referral he must minutely scrutinize the facts of the issue at hand. He must evaluate if the presence of power imbalance will have a bearing on the outcome of the matrimonial dispute, if the reference will do more harm to the battered woman and if she will be honestly helped by the process. For this gender justice education must be imparted as a part of the judicial training programmers especially to the newly inducted judges. The judges have a supreme responsibility in the entire process.

4.3.4 Role of Advocates According to Warner E. Burger, chief justice of the SC of USA, ‘the entire legal profession-lawyer, judges and law professors-has become so mesmerized with the stimulation of the courtroom that they tend to forget what ought to be healers of conflicts’.161 Advocates are often blamed that they exploit litigants. Lots of cases are lawyer stimulated that is either not required or could have been solved amicably.162 The majority of advocates make every effort to make a case out of a trivial issue. The sole aim and desire for money prompt them to charge not only the hefty litigation charges but demand for additional charges justifying it for some extraneous reasons. Any lawyer, who has been in practice for some time in the litigation area, will have seen clients even those for whom they have won the case, suffering from litigation exhaustion, not just in a financial sense but emotional sense as well. A bad lawyer will contribute towards delayed justice by asking for adjournments but a good lawyer will look for a resolution acceptable to the client and resolve the most disputes rather than win the most cases. A lawyer has an additional social responsibility of helping

158 Kohli

(2006–2010, p. 113). 8 SCC 24. 160 Bhandare (2010, p. 26). 161 Malhotra and Malhotra (2006, p. 10). 162 Mukherjee (1997, p. 115). 159 (2010)

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the ignorant and the underprivileged parties in attaining justice.163 Thus, lawyers representing in disputes have an obligation towards their client, to advice them about the advantages of ADR procedure. Thus, lawyers representing in disputes have an obligation towards their client, to advise them about the advantages of the ADR procedure. In the context of ADR, the advocates are now playing an important role in the entire mediation process. They help their clients in proposing and considering a settlement option that will focus and serve their best interests. A lawyer plays an important role during the ADR process. He is expected to be sensitive about the needs of his client. It is crucial to give worthy representation to the women clients who might be unaware of the ADR process and their rights. An advocate can empower the parties with information and awareness and help parties in reaching an informed decision through his assistance and counselling. A lawyer can also look into the history of spousal violence and abuse in the relationship. He can thus help the client in examining and deciding if it will be in her interest to go ahead with the ADR process or say no to it. He will be a better judge to understand the power dynamics between the spouses and thus effectively counsel the client. During the process also he can help humble, non-confident and incoherent, client by protecting and supporting their needs and claims. The presence of an advocate will be comforting for a disempowered woman as it will strengthen her sense of empowerment even when the advocate appears in the capacity of amicus curie during this process. They are slowly recognizing the fact that their effective participation in the mediation programme will not hamper their work volume. Rather, the mediation programme is an opportunity in the sense that swift settlement will instil faith among the litigants concerning the formal legal system. The judicial mediation advocates will represent the client’s interests in place of arguing adversarially as they do in a courtroom setting. They assist their clients and help them in proposing and finalizing a settlement given their client’s long-term interest. The advocates play a crucial role during the matrimonial dispute resolution. They help the parties in the conciliation process and thus lessening in Courts burden. Under the Act, parties can be represented by a legal practitioner only if the judge considers it necessary in the interest of justice. Else the judge and counsellor help the parties. Advocates are allowed in the role of amicus curiae to help the parties in the drafting of their replies and counter. These documents are of importance as the plaints form the basis of claims and denials but the parties’ direct involvement remains supreme. Practically, none of the parties appears without their advocate and the Court usually permits them to represent their party. The success of any ADR programme largely depends on the supportive role played by the lawyers. The success of the ADR programme in the USA is attributable to the cooperative role played by the lawyers. Initially, there was a lot of non-cooperation and apprehension in the mind of the lawyers about the ADR programme. They perceived these techniques as adversely affecting their prospects in the profession. However, subsequent awareness, sensitization and experience have shown that these 163 Lakshmanan

(2009, p. 282).

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processes are a new opportunity that has opened up a new dimension to their profession. The advocates are primarily appearing and carrying on the ADR process thereby greatly enlarging the dimension of their law practices. The lawyers who have been trained in mediation have seen an increase in their practice and income. People prefer to go to an advocate who would quickly resolve their disputes. The lawyers are now getting timely justice for their clients, praise for them and for installing faith in the judicial system. Hence, mediation provides satisfying results to the disputing parties, advocates, judges and judicial system.

4.3.5 Role of Police The police as an organized institution came into existence with the Police Act, 1861. According to NCRB (2018) around 2.8 police personals are engaged in the role of investigating crimes against women. As the forerunner of justice, they further the spirit of the law but unfortunately, at times, the police force is criticized for its apathetic attitude and gender insensitivity but sometimes as the perpetrators of crime. Besides, the judicial authorities have etched various guidelines that are blatantly disregarded. Police in India is a male-dominated organization in whom women have less confidence. The police response towards crime against women is regularly criticized for failing in providing adequate protection to them. The investigation conducted by police in crimes against women is of paramount importance. Most often than not, because of poor investigation techniques, they fail to preserve the required evidence leading to the failure of the trial. Often adequate evidence to prosecute and convict the culprit is not collected especially in rape and DV-related cases which ultimately results in the miscarriage of justice. The importance of the Police as an institution cannot be stressed enough. But they are neither sufficiently trained nor have developed the competency for dealing with women’s issues especially related to DV, counselling, mediation practices and such related aspects. The DVA aims to provide safety to the women victim and the Police is the first machinery whom they approach for their grievance and protection. It must be borne in mind that women are normally reluctant to report DV to the police because of the culture of belief that reporting their problems to the police will do little good and more harm by making the private dispute public. Reeling under the general belief that women use the DV Act to negotiate and bargain their terms or to put pressure on the husband to reprimand him and save the marriage, the police are often unsympathetic and show apathy towards women. Often they refuse to entertain DV reporting of case by women until the allegation is clubbed with or connected with dowry demand harassment and settlement of the property. They are reluctant to believe the women’s side of the storey and these additional grounds believed to give the required credibility to the DV case. Broadly in case of a matrimonial complaint police refuse to register cases unless these are palpable evidence of cruelty which generally means that the concerned woman alleges physical assault. The other criticisms of the police response to DV are categorizing severe DV

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as domestic disputes, trivializing it and reluctance to intervene in them. There is a general belief that dealing with the domestic dispute is not a real police work with a preference for reconciliation among parties rather than the criminal prosecution of the offence. Domestic incidents are often assigned to the ‘no crime’ category.164 Further, for preserving marital ties, counselling in domestic disputes is the first response of the police when a woman makes a complaint to them at the police stations or CAWC.165 The law nowhere mandates this but when women approach them for filing a case concerning marital wrong they are subjected to force counselling despite them suffering physical violence and in the negation of the legal protection. Such counselling by unqualified police personnel is a setback to the courage shown by a bettered woman and denial of protection that they are searching for. The women are scared about the after-effects and the consequences of taking this drastic step of going against the family. She fears that she will face trouble for trying to break up the family. Even after all these reservations, if the reluctant women file an FIR under 498-A police mainly focus on mediation and counselling to preserve the family. Such intervention by untrained, non-qualified, non-specialized and non-state-appointed counsellors is an area of concern. Usually reeling under biasness the accused women is blamed for filing the complaint with the sole motive of seeking vengeance. The couple is advised to compromise and stay in the marriage.166 The culture of masculinity is prevalent in the department making the officer hold stereotypes about violence against women. They consider the complaints of wifebeating and torture as a matter of misunderstanding in the conjugal relationship which can be sorted out through reconciliation despite a grave allegation of humiliation, torture and beating by the wife. The police taking the role of the counsellor without formal training is criticized by women’s groups as well. The police lack training on the general rules of counselling and have no job training of the principles. Usually, they tend to impose their patriarchal mindset of keeping every marriage intact even when the woman is suffering in it. There is no statistical data to prove that husband will stop abuse against her after counselling by police.167 They feel that it is their responsibility to mediate, to bring back order, to reaffirm family and marriage by bringing women to their husband as their rightful place is in their home. They think that it is pointless to break up the family and with their counselling efforts for compromising the dispute they are doing well to the family and the women even though they have no requisite training of doing so.168 The women will rather feel more helpless as even the state machinery makes her believe that there is no redressal against her odds. Thus despite an allegation of repeated and severe physical abuse, telling the women victim to turn to the 164 Sharma

(1997, p. 98). Rights Watch, India (2009, p. 52). 166 Available at: https://scroll.in/article/827094/forced-counselling-moralising-the-difficulties-offiling-dowry-harassment-cases-under-section-498a (Accessed on October 25, 2020). 167 Deol (Series no. 69, p. 80). 168 Mukhopadhyay, Maitrayee (1998, p. 180). 165 Human

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police as a last resort and in case they are facing constant violence is wrong. This tendency of not treating DV as an offence and too much focus on ‘compromise’ between women victim and their spouse and their family is a negation of women’s rights and legal provisions. Police should rather be appraising the victim women about the avenues and opportunities available under laws like PWDVA. There are various reasons behind this kind of attitude among the police including their defective training, inadequate supervision leading to the general perception of being corrupt and oppressive.169 Ideally, in the case of DV, the police assist the Court and enforce its orders. The investigating police officers provide information to the aggrieved woman about her right to make an application to the PO; availability of SP and PO. He must tell them about the availability of the right to free legal services and that she can file a complaint about initiating proceedings. The tendency on the part of the Police cells to see their role as counsellors, neither to prevent DV nor to deter violent husbands, but to persuade a woman to return to their families is bad.170 The Padmanabhaiah Committee and the Second Administrative Reforms Commission recommended that constables, and the police force in general, should receive greater training in soft skills (such as communication, counselling, and leadership) given they need to deal with the public regularly.171

4.4 Frequency of Settlements/Disposals Attained Through ADR Process In the context of counselling, it is provided in a court-annexed FC setup. Other state authorities are providing additional support to the counselling and conciliation programme. Matrimonial disputes are increasing and couples are approaching Courts for their redressal. The overburdened Courts make the speedy disposal of matrimonial disputes difficult. Section 9 of the FC Act makes it the duty of the Court to make efforts for a settlement of matrimonial disputes through counselling and mediation. In case of a reasonable possibility of settlement among parties, the proceedings may be adjourned by the Court. The achievement of FC at Delhi shows a huge number of cases settled amicably.172 A brief survey of the Court’s decision brings out the growing importance of FC and the counselling process. The Court is under a duty to attempt reconciliation in every matrimonial dispute.173 FC is bound by this objective even if the divorce is sought on 169 Bharti

(2006, p. 5). Rights Watch, India (2009, p. 9). 171 Second Administrative Reforms Commission (2007) Public Order. Available at: https://arc.gov. in/5th%20percent20REPORT.pdf (Accessed on June 15, 2020). 172 Sutradhar (August 2011, p. 4) Vol. 1 (1) Newsletter of Family Courts Delhi. 173 Section 23 of the HMA and Order XXXII-A of the CPC; Jagraj Singh v. Bir Pal Kaur, JT 2007 (3) SC 389. 170 Human

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exceptional grounds under which compulsory settlement action is not mandated.174 Thus, stress is laid on the preservation of marriage in tune with the objectives laid in FCA.175 Also, mediation is a must before a divorce. Excluding the cases of severe allegations, the cases concerning Section 489A of IPC the complaints should not be dealt with by the regular Courts unless the mediation centres intervenes. The Court stressed on introducing pre-litigation mediation, counselling and mediation was also stressed.176 Many beneficiaries get assistance from the funds released for FC during 2008–09.177 The success rate of conciliation and counselling by DLSA is also good.178 In the context of mediation, statistics suggest that the success rate of the courtannexed programme in India is high. A significant number of cases are settled at the various court-annexed mediation centres. The mediation process is less timeconsuming, cumbersome and dilatory as compared to a Court trial. The entire mediation proceedings get completed within a short period. Even when the cases do not settle, the process prepares the groundwork for a future settlement. The mediation centres provided in a court-annexed setup are doing commendable work and producing excellent results.179 The Supreme Court Mediation Centre (SCMC) has been functioning since 6 August 2009. It mediates and resolves only those matters which are pending before the SC and referred by it. SCMC has a panel of 91 trained mediators including senior advocates. Interested parties can approach the Coordinator, SCMC for assistance and information. Since its inception, the mediation centre has settled 847 matters (out of which 142 were settled between July 2018 and September 2019).180 The settled cases include disputes concerning family and matrimonial disputes, commercial disputes, business contracts and consumer disputes.181 The Delhi HC mediation and conciliation centre is known as Samadhan. Since its institution in May 2006, Samadhan has helped thousands of people to resolve their disputes and differences. It has commenced pre-litigation mediation and also deals with cases referred to it by the HC, SC, district Courts in Delhi, company law board cases and the disputes referred by the telecom regulatory authority of India. A variety of disputes relating to matrimonial disputes, real estate transactions disputes, construction disputes, employment and services disputes, industrial disputes, intellectual property rights disputes, banking, insurance and commercial disputes are

174 Bini

v. K.V.Sundaran, AIR 2008 Kerala 84. Kaur v. HardeepSingh, AIR 1998 SC 764. 176 K. Srinivas Rao v. D.A.Deepa (2013) 5 SCC 226. 177 Ministry of Women and Child Development, Annual Report (2009–10, p. 232), New Delhi. 178 3rd, 4th, 6th, and 7th Annual report DLSA. 179 Ajit Ranjan v. State and Others, W.P. (Cr.) 458/2007. 180 Available at: https://main.sci.gov.in/pdf/AnnualReports/Supreme_High_Court_AR_English_2 018-19.pdf (p. 121) (Accessed on September 01, 2020). 181 Biennial Report, High Court of Delhi (2010–2012, p. 109). 175 Baljinder

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dealt with by it. It submits verification reports in habeas corpus matter referred by the HC.182 The Annual Reports of Delhi Mediation Centre from 2005, i.e. the year of its inception in Delhi till date, are very encouraging. Mediations undertaken by these centres are well appreciated as a large number of settlements are happening under them.183 The statistics highlight the success of mediation.184 On the conclusion of a successful mediation, followed by a decree, the plaintiff is entitled to a full refund of Court fees. Statistics on mediation activities in various states in India as of March 2012 showed a success rate of 42.40185 and for Kerala Mediation Centre from 2009 to 2016 the average success rate is 25.25%.186 Concerning the resolution of matrimonial disputes, a study conducted on the status of mediation reported that almost three-fourth of the cases handled at the mediation centres are marital issues. The remaining cases are for the dishonour of cheque, recovery suits and property disputes. The poor infrastructure of the centres was stated to be a hindrance whose improvement was expected to improve the settlement rate. The lawyers were not always interested in an agreement reached through mediation as they stand to lose their fees. The mediation success rate in the Haryana Court of Gurugram hovers around 30%. In a court-annexed mediation programme, among all the other types of cases referred by Courts for mediation, around 80% of the referred cases relate to matrimonial disputes. In these cases, the parties are rarely prepared for an amicable solution as they have already tried reconciliation in different settings and before they approaches the police and the Courts. there a need for the mandatory pre-litigation mediation process.187 The mediation centre setup by the SLSA is additionally supporting the Court-annexed mediation programme in India. The matrimonial Lok Adalat conducted by LSA is also a successful mode of dispute resolution. Continuous matrimonial Lok Adalat are conducted by LSA that facilitate an amicable resolution of cases relating to DV, maintenance under Section 125 of CrPC, Sections 18 and 19 of HAMA and for divorce and restitution of conjugal rights and maintenance and custody of children. During the period April 2015 to December 2018, 1.79 crores and 3.96 lakh cases have been disposed of by Regular Lok Adalat and Permanent Lok Adalat respectively. Moreover, 4.42 crore cases has been disposed of by National Lok Adalat during this period.188 Thus with the passage of time, the percent of cases referred for mediation and their disposal rates have increased. However till the time the basic issues like gender role expectations, fear of the system including police that is male-dominated and 182 Biennial

Report, High Court of Delhi (2010–2012, p. 105). Report of the Delhi Mediation Cell (2005–2006, 2006–2007, 2007–2008, 2008–2009, 2009–2010). 184 Biennial Report, High Court of Delhi (2010–2012, p. 109). 185 3rd National Conference on Mediation, organized by Mediation and Conciliation Project Committee, Supreme Court of India, Delhi, at Vigyan Bhawan, New Delhi on 7 and 8 July, 2012. 186 Available at: https://keralamediation.gov.in/Statistics (Accessed on July 15, 2020). 187 Available at: https://www.thehindu.com/news/cities/Delhi/mediation-an-overlooked-way-toaccess-justice/article25759710.ece (Accessed on August 05, 2020). 188 Available at: https://doj.gov.in/other-programmes/nalsa (Accessed on September 24, 2020). 183 Annual

14,324

No. of connected cases settled

14,363

10,627 (22.50%)

36,614 (77.50%)

47,241

498

7325

15,270(40.14%)

22,774(59.86%)

38,044

426

38,470

9890 (20.45%)

48,360

Rohini Courts 02/02/2009 to 29/02/2020

Available at: https://delhicourts.nic.in/dmc/statistical.htm (Accessed on August 21, 2020)

55,718 (60.00) %

92,868

No. of disposed cases

37,150 (40.00) %

1036

No. of cases pending for mediation

No. of cases not settled

93,904

No. of balance cases

No. of cases settled

11,622 (19.58) %

12,878 (12.06) %

No. of cases which were not fit for mediation 47,739

59,361

Karkardooma, 01/12/2005 to 29/02/2020

Total no. of cases referred 106,782 for mediation

Tis Hazari Courts 22/8/2005 to 29/02/2020

Six mediation centres functioning in Delhi district Courts

4906

9989 (29.21%)

24,206 (70.79%)

34,195

449

34,644

7158 (17.12. %)

41,802

Dwarka Courts 06/07/2009 to 29/02/2020

Table 4.1 Data of mediation centres compiled from general statistical reports of Delhi Mediation Centre

4012

11,276 (38.30)

18,162 (61.70%)

29,438

477

29,915

5697 (16%)

35,612

Saket Courts 30/04/2013 to 29/02/2020

3483

3916 (41.74. %)

5465 (58.26%)

9381

262

9643

1835 (15.98%)

11,478

Patiala House Courts 01/05/2015 to 29/02/2020

4.4 Frequency of Settlements/Disposals Attained Through ADR Process 161

162

4 ADR Institutions, Role of ADR Practitioners, and Frequency …

Table 4.2 Data on cases settled through mediation by NALSA Mediation (NALSA) cases settled S. No.

SLSA Year

No. of mediation centres established

No. of mediators

No. of cases settled

1

April 2015 to March 20161

788

10,660

39,503

2

April 2016 to March 20172

375

3

April 2017 to March 20183

1025

11,280

107,584

4

April 2018 to March 20194

1031

15,792

98,966

93,732

1 Annual

Report of National Legal Services Authority (2015–16, p. 15). Report of National Legal Services Authority (2016–17, p. 10). 3 Annual Report of National Legal Services Authority (2017–18, p. 6). 4 Annual Report of National Legal Services Authority (2018–19, p. 42). 2 Annual

Table 4.3 Disposal of cases in monthly Lok Adalat Disposal in monthly Lok Adalat (excluding National Lok Adalat) S. No.

SLSA year

Pre-litigation cases settled

Pending cases settled

Total cases settled

1

April 2015 to March 20161

7,335,332

6,143,718

13,479,050

2

April 2016 to March 20172

758,633

965,679

1,724,312

3

April 2017 to March 20183

984,512

944,170

1,928,682

4

April 2018 to March 20194

375,130

672,525

1,047,655

1 Annual

Report of National Legal Services Authority for (2015–16, p. 12). Report of National Legal Services Authority (2016–17, p. 9). 3 Annual Report of National Legal Services Authority (2017–18, p. 6). 4 Annual Report of National Legal Services Authority (2018–19, p. 41). 2 Annual

perception on the part of the women that their issue will not be heard seriously make women reluctant to reporting abuse. Further the lack of cooperative effort among various authorities hampers achieving fair and speedy justice for women.189 The lack of optimal utilization of the pre-litigation options like NCW, NHRC, police, NGO’s and the importance of counselling, mediation and settlement are yet other concern.190

189 Saxena 190 Jaising

(2001, p. 68). (2007, p. 102).

4.5 Conclusion

163

Table 4.4 Disposal of cases in permanent Lok Adalat National legal service authority (disposal in permanent Lok Adalat) S. No.

SLSA year

Total cases settled 20161

1

April 2015 to March

2

April 2016 to March 20172

93,555

3

April 2017 to March 20183

5,732,023

4

20194

5,895,635

April 2018 to March

103,559

1 Annual

Report of National Legal Services Authority for (2015–16, p. 13). 2 Annual Report of National Legal Services Authority (2016–17, p. 10). 3 Annual Report of National Legal Services Authority (2017–18, p. 6). 4 Annual Report of National Legal Services Authority (2018–19, p. 41).

4.5 Conclusion The divorce litigation in India and the ordinary Court procedures are time-consuming and expensive. They are embarrassing and embitter the relationship, thus obstructing the amicable resolution of the ancillary issues like custody, maintenance, and matrimonial property. The need is felt for alternative forums and procedures for matrimonial conflict resolution with the least hostility. In comparison with the formal Court system, ADR is acknowledged for delivering effective, a cost-saving resolution that avoids polarization of the parties to the dispute; it is educative and probes wider issues. The chapter evaluated the existing ADR institutions and their prototypes that emerged with the basic idea of resolving matrimonial disputes. It highlighted the recent emergence of Family Courts and mediation centres and their appropriateness to these disputes. Both these ADR mechanisms that are usually offered as a court-annexed process are now widely established for providing timely, informal, and swift settlement of matrimonial disputes with a focus on creatively settling all the underlying issues that could bring back the parties to Court. It analysed the role of various ADR practitioners involved in conducting these processes. With the help of secondary data, the frequency of settlements and disposals reached through ADR mechanisms was evaluated.

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Paranjape, N. V. (2013). Law relating to arbitration and conciliation in India (5th ed.). Central Law Agency. Parkinson, L. (1997). Family mediation. Sweet and Mexwell. Poonacha, V., & Pandey, D. (2000). Responses to domestic violence: Government and nongovernment action in Karnataka and Gujarat. EPW, 35(3). Ramanathan, U. (2012, July 8). Need for enhancement of standards in mediation practice. Paper Presented at the 3rd National Conference on Mediation, New Delhi. Rao, A. V. R. (1963). Mediation. Conciliation and arbitration. Popular Prakashan. Rao, P. C. R., & Sheffield, W. (Eds.). (2002). Alternative dispute resolution—What it is and how it works. The International Centre for Alternative Dispute Resolution. Universal Law Publishing Co. Pvt. Ltd. Redding, J. A. (2012). What American legal theory might learn from Islamic law: Some lessons about ‘the rule of law’ from ‘Sharia Court’ practice in India. University of Colorado Law Review, 83. Rifkin, J. (1984). Mediation from a feminist perspective: Promise and problems. Law & Inequality: A Journal of Theory and Practice, 2(1). Riskin, L. L. (1996). Understanding mediators’ orientations, strategies and techniques: A grid for the perplexed. Harvard Negotiation Law Review, 1(7). Rutledge, L. A. (1968). The future of marriage counselling. In B. N. Ard Jr. & C. C. Ard (Eds.), Handbook of marriage counselling. Science and Behaviour Books. Inc. Sathe, S. P. (1996). The tribunal system in India (9th ed.). N. M. Tripathi Private Limited. Saxena, S. (2001). Crimes against women and protective laws. Deep and Deep Publications Pvt. Ltd. Sehgal, M., & Sherjung, N. (Eds.). (1997). Marital disputes and counselling: Remedial measures (Vol. III). APH Publishing Corporation. Sharma, B. R. (1997). Women: Marriage. Family. Violence & divorce. Mangal Deep Publications. Sharma, V. S. (1962). Panchayat Raj. Vidya Mandir. Singh, A. (2009). Law of arbitration and conciliation and ADR systems. Eastern Book Co. Singh, G. (2005). Mediation: A choice of dispute settlement in India. M.D.U. Law Journal, X(1). Singh, S. C. (Ed.). (2009). Gender justice. Serials Publications. Sinha, S. B. (2006). Mediation: Constituents. Process and merit. Nyaya Deep, 7(4). Solanki, G. (2011). Adjudication in religious family laws: Cultural accommodation. Legal pluralism, and gender equality in India. Cambridge University Press. Stitt, A. J. (2004). Mediation: A practical guide. Cavandish Publishing. Strasser, F., & Randolph, P. (2004). Mediation—A psychological insight into conflict resolution. Continuum. Tschalaer, M. H. (2017). Muslim women’s quest for justice: Gender, law and activism in India. Cambridge University Press. Vadackumchery, J. (1997). Judges, culprit and the factors influencing decision-making. APH Publishing Corporation. Varghese, L. (2011). Panchayat court as an ADR mechanism: Effectiveness and advantages. Nayaya Deep, XII(4). Vatuk, S. (2001). Where will she go? What will she do? Paternalism toward women in the administration of Muslim personal law in contemporary India. In G. J. Larson (Ed.), Religion and personal law in secular India: A call to judgment. Indiana University Press. Vatuk, S. (2005). Moving the courts: Muslim women and personal law. In Z. Hasan & R. Menon (Eds.), The diversity of Muslim women’s lives in India. Rutgers University Press. Vatuk, S. (2013). The women’s court in India: An alternative dispute resolution body for women in distress. The Journal of Legal Pluralism and Unofficial Law, 45(1). Wallis, J. H. (1968). Marriage guidance—A new introduction. Routledge & Kegan Paul.

Chapter 5

Stumbling Blocks in Battered Women Access to Justice: Gender Inequities, Violence, and Economic Marginalization

The human rights committee in its General Comment 32 on Article 14 of the ICCPR relates to justice for the marginalized, poor, women, minorities, and children. It states about access to justice including ‘access to courts’, ‘legal representation’, and ‘just and equitable legal and judicial outcomes’.1 Despite several legislations enacted in India for women and regardless of changes in law and policy efforts, the situation is discouraging. In the event of a right violation, women rarely approach the legal authorities for accessing their rights and reliefs. Women shy in approaching the State legal machinery for seeking justice, and only after prolonged sufferings they seek help. Prevalence of unprofessionalism among the police investigation machinery, lack of proper investigation, presence of reasons including complexities of the law and slow procedures full of loopholes hampers their access to justice. The tardy enforcement of existing laws and drawbacks in the justice dispensation by the legal system are the prime reasons for the low conviction rates and scepticism about the legal machinery. Despite the evolution of various rights, women often lack information about their basic legal, constitutional and human rights. The majority of women who undergo matrimonial litigation have poor literacy rates and property rights, their work is considered non-productive. They are not remunerated for their contribution to family life and have the poor financial capacity. The presence of all these reasons makes them face violence and lack support from their own family and community at large. Because of meagre representation of their issues at the policy framing level, access to justice becomes difficult. In case of marital disputes, the culture of blaming and focusing on reconciliation without hearing women makes things difficult. For battered women society does not offer any alternatives in terms of long-term protection. Owing to women’s poor economic capacity, the ADR responses are aimed 1 UNDP,

Access to Justice: Practice Note (Draft 1) (2004, p. 6). Available at: https://www.undp. org/content/undp/en/home/librarypage/democratic-governance/access_to_justiceandruleoflaw/acc ess-to-justice-practice-note.html. (Accessed on October 14, 2020).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8_5

167

168

5 Stumbling Blocks in Battered Women Access to Justice: Gender …

at solutions that keep the marital ties intact even by putting them under pressure for their consent. Being less learned, less communicative, and less assertive, they accommodate, adjust, and tolerate till the end.2 Thus, it is important to comprehensively understand and evaluate the gender justice needs of women victims.3 These stumbling blocks need to be identified to mitigate the hardship faced by women facing dispute and litigation. Resorting to ADR without addressing these stumbling blocks will not allow the ADR process to be transformed into a useful tool towards promoting access to justice for women.

5.1 Deep-Seated Barrier Due to Gender Inequities Violence, discrimination and oppression of women are universal phenomenon. There is no dearth of studies and readings that can be referred to substantiate this statement. It is also a known fact that women face challenges and barriers while accessing their legally granted rights under various laws. The efforts to ameliorate the condition of women are diluted by the stereotypical mentality that is premised on patriarchal norms of a society. Indian women face oppression and general bias due to ingrained ideals of patriarchy. Socialization, gender roles assignment, gender stereotypes, gender subordination are the other phenomenon that impacts women access to justice. Religion and media further reinforces these traditional gender roles. When women decides to opt for redressal the presence of impediments and gender inequities discussed below makes them vulnerable and play down women’s access to justice through Courts and ADR.

5.1.1 Patriarchy and Gender Discrimination In the case of Bradwell v. Illinois,4 the SC of Illinois refused to grant a licence to practise law to women. Justice Bradley opined that: …[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should 2 Basu

Srimati (2001, p. 230). Report Gender Responsive Alternative Dispute Resolution DILI (4–5 December 2017, p. 30) UN Women, 2018 UN Women Timor-Leste. Available at: https://asiapacific.unwomen. org/-/media/fieldpercent20officepercent20eseasia/docs/publications/2019/03/tl-unw_adr-seminarreport.pdf?la=en&vs=1437 (Accessed on March 15, 2020). 4 Bradwell v. Illinois, 83 U.S. (16 wall.) (1872, p. 130). 3 Seminar

5.1 Deep-Seated Barrier Due to Gender Inequities

169

belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases. (p. 85)

The incapacity of Bradwell to contract barred her from performing the duties and trusts that belong to the office of an attorney and counsellor. This old judgement states that women have no separate legal existence, and when compared to the situation today one can easily deduce that nothing much has changed so far. Women are still regarded as subordinate to their male counterparts. Women belong to those marginalized sections of society that are subjugated in every sphere of their life due to the pre-existing patriarchal social structures which keep on taking new forms with changing times.5 The patriarchal families that came into existence from the third millennium BC have merely changed their form. Patriarchy is a system derived from Greek and Roman laws. With the establishment of the concept of private property, women were subordinated by exerting control over their mobility and sexuality to know the paternity of the child.6 This is a system under which the male head of the family is regarded as possessing unquestionable legal and economic power. This absolute power is called as ‘supremacy of a father’. In the societal framework, it is the extension and manifestation of male dominance over women and children in the family.7 The entire command, power and privileges are vested in men and women remain the deprived and subordinated sex. Even in modern times, every social structure in the world continues to be patriarchal as men play a dominant role in household affairs.8 Indian society is no exception to this trend and since ages the Indian families are patriarchal (the father controls the family), patrilineal (tracing the linage through males) and joint (the entire family resides together).9 The father is the head of the family and administrator of the joint property.10 Systemic gender discriminations by the patriarchal society is the reason why women cannot attain equal footing with men especially in rural areas.11 In such families, women have negligent property rights. The classical rules of partition and inheritance of the majority of communities make the male members the common and superior sharers of family property. In practice, society denies women a share in the common property or equates it with the dowry and marriage expenses. They are maintained by the natal family till their marriage, in case they are a widow or if divorced and return to their natal home.12 5 Saksena

(2004, p. 1). (2006, pp. 68–70). 7 Pandey in Vir and Mahajan (eds.) (1996, p. 221). 8 Prasad (2006, p. 136). 9 Uberoi (2005, pp. 363–376). 10 Murthy (2006, p. 102). 11 Sharma (2006, p. 145). 12 Gandhi (2008). 6 Chakravarti

170

5 Stumbling Blocks in Battered Women Access to Justice: Gender …

Males have complete control over the family property. The descent, inheritance and succession rights tilt in favour of the male members and the familial authority rests in the senior-most male members.13 The women are regarded as weaker members, discriminated and often tortured by the male members in their different capacities.14 Women’s duties as wife and mother are accepted as their essential role in the family. The assumption of good women is highlighted and they are expected to be sweet, gentle, loving caring and self-sacrificing.15 Further, the socialization process makes the women accept these patriarchal structures and their secondary role in the family. The traditional structure of family institutions ensures women’s subordination.16 Power to make a decision is an important area of concern for women. Gender bias is visible here as well as women hardly take decisions in family matters and they are overlooked by the dominant males in the family.17 With its clear division of roles, the family system supports patriarchy. The husband administers the property and the wife are made responsible for running the domestic affairs. This sort of division of labour based on gender distinguishes both sexes into two mutually exclusive categories of the woman and the man.18 Women lack control even over their sexual rights.19 The male of the family is the primary and central authority that rules over the females. The negative influence of patriarchy is discernible in discriminatory family laws that are contradictory to the constitutional provisions and manifested in form of the attitude of state institutions like judiciary, police, and administrative bodies. Even the Indian laws to an extent have a patriarchal character and protect the patriarchal values. Rape by the husband is not as yet a cognizable offence in India. Rape is the most humiliating and degrading act that violates the right to life and liberty and the consent of women. But in sexual relations, the wife’s consent is rarely taken. Marital rape is illegal in many countries but it is not recognized in India under the excuse of marital relations being a private affair.20 It gives the husband a right to rape his wife, state condones it and same is not regarded as any sort of violence. The legislation and judiciary are silent on this aspect despite the 172nd Report by the Law Commission of India (2002) recommending taking steps in this direction. Further, bigamy is still practised among the Indian Muslims that is long barred by many of the other Islamic states thereby putting the rights of women in jeopardy. The concept of the Uniform Civil Code that abrogates discriminatory religious practices is still awaited (Article 44 of the Indian Constitution).

13 Uberoi

(2009, p. 1). (2006, p. 136). 15 Mitra (2010, p. 3). 16 Menon (ed.) (1999, p. 3). 17 Satpathy (2010, p. 10). 18 Pandey Rekha in Vir and Mahajan (ed.) (1996, p. 222). 19 Pandey Rekha in Vir and Mahajan (ed.) (1996, p. 221). 20 America, Australia, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland, and Czechoslovakia. 14 Prasad

5.1 Deep-Seated Barrier Due to Gender Inequities

171

Patriarchy exerts its influence on the thought and behaviour of women as well. They are expected to adopt their husband’s surname after marriage. Young children are known by their father’s surname. Though the situation has changed to a greater extent women are still regarded as subordinates and controlled by men. In this kind of family, setup women internalize the notion of family hierarchy and their subordinated and discriminated roles. Patriarchy manifests itself in almost all the institution governing family life and has a strong impact on the culture of a nation. The evil effect of the patriarchal system is manifested in the form of DV, female foeticide, dowry demand, child marriage, denial of property rights, poor educational level and poor labour market and political participation. In totality, patriarchy hampers the growth and development of women. In the context of legal entitlements, originating from the unequal distribution of resources and decision-making along gender lines, patriarchy is apparent in the form of women’s non-access to justice. There are varied facets of patriarchy like lack of knowledge about legal rights obstructs women power to approach the Courts to seek justice for them.21 Gender inequality especially in family law frameworks is inbuilt and places women in a subservient position in society, community, family, marriage. The patriarchy and gender subordination is perpetuated due to economic dependence and traditional social norms. The Court and ADR programmes need to be mindful of these phenomena and their features.

5.1.2 Socialization, Gender Roles and Gender Stereotypes Under the laws both a woman is legally equal to a man. Beginning from the early Vedic period women enjoyed equal status with a man but in the later period, there was degeneration of their status. Across the globe, factors like patriarchal societies, the institution of slavery, the evolution of property rights, the authoritarianism of state and law have impacted gender roles and status by creating gender stereotypes. Irrespective of the theoretical regard to womanhood the theological attitude towards women needs and necessities of society to utilize the labour potentials of women contributed to the lowering down of their status.22 Socialization is the process of acquiring roles. During the formative years, women are socialized to play roles that are different from the boys. Roles here refer to socially defined ways of behaviour associated with a particular position in a social group or a society at large. Some aspects of role behaviour are consciously taught whereas some are learned by personal experience and imitation.23 The ‘Role assignment’ or ‘Sex stereotypes’ refers to the combination of different traits, activities, values and behavioural characteristics attributed to and used to describe and differentiate two sex groups in a socio-psychological setup.24 21 Knowing

your Rights—Women Family Law and Custom in the Muslim World (2003, p. 33). R. N. in Singh (ed.) (2009, p. 129). 23 Sharma (2005, p. 78). 24 Rehana (ed.) (1996, p. 124). 22 Sharma

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By observing others experience is drawn from what masculine and feminine behaviour is and how people should fulfil their roles as men and women.25 The Indian patriarchal society defines women’s duties and their role expectations in various capacities like a daughter, as a wife and as mothers. The role allocation process makes a distinction between the work done by men and women.26 The entire thrust on girl’s socialization process is to make them accept their inferior roles in the family setup. From the very beginning, males are expected to develop a mannish personality with aggression, dominance and independence as their essential components whereas girls are expected and reinforced to develop feminine traits like submissiveness, nurturing and dependent. The socialization process emphasizes modesty and adaptation for female, and teaches the male children to be assertive and superior.27 The two sexes have been stereotyped in terms of different tasks, privileges and role patterns traditionally assigned to them. Male is brought up to assert themselves and dominate the women in the family who gradually accept their unequal position.28 Girls are trained to believe in patriarchal authority in which they will have subordinate and inferior status. They are socialized to believe that men will work in the public and they belong to the domestic realm.29 The values transmitted by educational knowledge and the curriculum reinforce the gendered performance of tasks by women. Qualities of obedience, docility and diligence are stressed for women and bravery, outgoing nature, sportsmanship and leadership in sociocultural affairs are emphasized for boys and men.30 Discrimination between the two sexes is evident in almost every field of activity. Daughters and sons are still not being treated at par in education, nourishment, and ideological independence even by mothers who themselves had been the victims of such discrimination.31 While boys get greater attention in medical and health care facilities than girls who are deprived and prone to malnutrition and a host of other common illness and diseases.32 This is because of gender stereotypes. Reeling under the understanding that the male child is an asset while a girl child a liability the stereotyping, role assignment and socialization continue generation by generation. Women are supposed to accept the roles of good daughter, wife and mother. They are modelled within the framework that is distinctly recognized for them by the Indian patriarchal society. It is considered that only these accepted statuses complete women and while playing these roles they should be loving, kind, concerned and even sacrificing.33 Till today the entire socialization process makes woman accept a stereotyped role in the family. Over a while, the socialization and role assignment process by 25 Herbert

and Jarvis (1959, p. 40). (1988, p. 110). 27 Rehana (ed.) (1996, p. 109). 28 Bhasin (1993, p. 4). 29 Sharma (2006, p. 153). 30 Lakshmi (2007, pp. 212–213). 31 Kapoor in Mamta Sehgal and Nirmala Sherjung (eds.) (1997, p. 12). 32 Satpathy (2010, p. 11). 33 Mitra (2010, p. 3). 26 Dube

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family and society make them accept their dependent status. They think that they should confirm and fit into the mould of ideal Indian women who are nurturing caring sacrificing and keeper of the family. Stereotypes make them vulnerable to violence, discrimination and deprivation. Women are socialized to be bound to their home by reinforcing a sense of insecurity in them. These mental blocks prevent women from taking action against the wrongs, DV and abuse committed against them within the ‘private spheres’ get in the way of women’s access to justice.

5.1.3 Gender Subordination and Oppression As per Beijing Platform for Action recognized lack of access to productive resources and economic power-sharing leading to women’s poverty. Gender Subordination explains the status of a woman and the extent to which she has access to knowledge, economic resources and political power, as well as the degree of autonomy in decision-making and making personal choices.34 Numerous examples show the pitiable condition of an Indian woman. They are trapped in the web of sociocultural constraints, superstitions and blind faith perpetuated by the male-dominated society. A woman becomes a victim of cruel, inhuman attacks directed on her physical, emotional, social, political, and even spiritual growth. Her struggle for survival continues from the womb to the tomb without respite.35 Self-sacrifice and self-denial are the two parameters associated with women and portrayed as part of their nobleness and power. Patriarchy oppresses women in every phase and walk of their life. Whereas women constitute more than half of the population and are engaged in work that contributes immensely to the life and wealth of nations but they are subjected to gender discrimination at work, in their homes, and in every sphere of human activity. This sort of exploitation and subjugation of women has adversely affected the social fabric.36 During the modern period remarkable changes have been made in the country, but unfortunately less or no changes have come to the share of a majority of our women. The age-old attitude towards women still prevails due to considering them to be second class citizens with no rights of their own. Women’s social isolation and marginalization from the decision-making process, limited employment opportunities, inequality of wages, and lack of access to resources project the disability suffered by Indian women.37 The state has responded positively to this subordination and oppression but it hasn’t resulted in positive action at the grass-roots level. Due to poverty, lack of legal literacy, insensitive and male-dominated enforcement agencies, women are still fighting against the injustices and age-old patriarchal traditions.

34 Kaushik

(2007, p. 23). (2006, p. 322). 36 Khan (2006, p. 390). 37 Gupta (2000, p. 49). 35 Khan

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The Indian Constitution under Article 14, 15 and 16 prohibits discrimination based on sex. Sex determination and selection are banned under the Pre-Natal Diagnostic Techniques, 1994 (hereinafter PNDT) Act but a staggering rate of sex-selective abortions take place. Till today the birth of a girl child does not bring an atmosphere of joy and happiness to the family. She is considered to be an anta-property (parayadhan) and not treated on equal footings with her male siblings. Stigmatic conditions have created a specific woman psyche in society.38 Due to lack of proper implementation of the Act the gender ratio gap is continuously widening as female foetus are aborted39 making India a poor performer in the Global Gender Gap Index released by the world economic forum. It ranked 101 out of 136 countries, indicating a huge disparity in access of women to economic, political, educational and healthcare opportunities and their participation in such services.40 The discrimination between the two sexes is because the patriarchal and patrilineal society considers a male child to succeed his father and maintain the lineage. A female child is regarded as an economic liability belonging to the house of others.41 Son looks after his parents in old age as he stays in the same house.42 As compared to a girl child a male child is highly valued and is socialized in different ways stated above. Women’s powerlessness is expressed in violence against women, sexual exploitation and their vulnerabilities. Women accept this conditioning and learn to play submissive roles with husbands having a sense of exclusive possession over their wives.43 Gender bias may take many forms and implies viewing issues from the male perspective and trivializing problems faced by women.44 The judicial misinterpretation of the dynamic and significance of gender relationship leads to women and their subordinated roles and thus facing gender bias.45 It can be a result of the myths and misconception about socio-economic realism. If we look at the personal laws, in almost all of them gender bias exists. The fundamental theories and labels show their impact on the provisions concerning women’s rights, viz. alimony, maintenance, child support, and custody awards creating inadequate support awards for women.46 In India, the sentencing practices prove gender bias from the questions posed to the victim of sexual crimes about things concerning them. Violence and abuse against women are trivialized by the law and society denying women their right to life with human dignity. As a result of this women remain subordinated and oppressed and thus face challenges while accessing legal right. We need to remember that like men, 38 Prasad

(2006, p. 90). 2011, the figure stands at 914 females for every 1000 males, the lowest since 1947. It was 976 in 1961. 40 The Times of India (October 26, 2013, p. 23). India’s gender gap among worst stands at 101 in list of 136 nations Ranked on Disparity Index (New Delhi). 41 Bhopal (1997, pp. 483–492). 42 Satpathy (2010, p. 11). 43 Khan (2006, pp. 331–332). 44 Mahoney (1999, pp. 93–94). 45 Mahoney (1999, p. 95). 46 Mahoney (1999, p. 94). 39 In

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women are equally useful members of society. They too have the right to freedom, to develop their personality and after marriage does not become a subordinate but must be regarded as an equal partner; none of them is above each other but are equals.47 The cultural tradition and intuitional practices reinforce this phenomenon. Even the people responsible for the dispensation of justice reel under biased attitude, myths and misconception about women and the law itself.48

5.1.4 Role of Religion and Media in Reinforcing Traditional Gender Roles If we trace the position of women, both religion and society are highly influenced by the religious dictates that contributed to women discrimination in public and private spheres. Women were respected in the Dravidian and Aryan civilization but the rest of their journey is an account of their subjugation. During India’s 5000 years of civilization, women, by and large, led circumscribed lives.49 In ancient India, women enjoyed high religious status and their presence was indispensable from the religious and spiritual points of view. They were regarded as an equal partner with men and granted the right to knowledge and freedom to marry.50 From 300 B.C., the gradual trend in the deterioration of the status and position of women began.51 The upanayana for girls and right to study was discontinued. The reduced marriageable age for girls prevented them from acquiring Vedic knowledge. The Smritis and Kautilya denied sisters having brothers, a share in the patrimony.52 In the case of marriage and divorce, the sacred law held that the marriage union was indissoluble.53 After the Muslim invasion, the Purdah system and rules regarding widow remarriage became strict.54 Owing to the advent of various evil customs and practices, the condition of Indian women became degraded and pitiable. The awakening of women began from the nineteenth and twentieth century onwards when they started questioning gender bias. Reformist movements were initiated by the social reformers of the nineteenth century who took up the cause of women’s emancipation by highlighting their problems.55 The Britishers never interfered with the social customs prevalent at that point in time. To improve the status of women, from the twentieth century the nationalist movement strengthened the demand to bring about major changes in the law. Despite a few laws enacted during 47 Sharma

(2006, p. 153). (1999, pp. 93–94). 49 Khan (2006, p. 391). 50 Pore (1991, p. 104). 51 Murthy (2006, p. 114). 52 Murthy (2006, p. 119). 53 Murthy (2006, p. 127). 54 Gill (1986, pp. 33–34). 55 Kashyap (1995, p. 14). 48 Mahoney

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the pre-independence era, the emancipation of women remained unfulfilled. Therefore concern for women’s social justice was natural. Consequently, the constitution included women within the category of weaker section. Various rules and provisions were inserted in it to provide equality of status and opportunity between men and women.56 Measures like reservation, positive discrimination was undertaken in favour of women. But most of the women in India don’t have much knowledge and awareness about their rights. Even if aware women feel handicapped to exercise rights within the prevalent sociocultural conditions.57 As rightly pointed by Flavia Agnes, the political manoeuvrings at each stage of social reforms directed for women’s welfare, bartered women’s crucial economic rights.58 Women are not perceived as autonomous individual capable of making decisions appropriate to their own lives. Through its provisions concerning family, marriage and inheritance, religious laws reinforce patriarchy and make gender bias visible. Almost all the personal laws give differential treatment to women in matters related to property share. The Muslim and Christian laws are not reformed due to fear of hurting the religious sentiments of the people. Constitutional mandates for equality and justice have been considerably diluted by these personal laws.59 Many of these provisions existing in personal laws continue to violate Article 14 and 15 of the Constitution and thus should be declared unconstitutional. The cruel practise of unilateral talaq and polygamy permitted under Muslim laws are the biggest example of this discrimination. As already mentioned, the directive principles of state policy mandate for enacting a uniform civil code (Article 44) but the same has not been done so far. The discriminatory provisions under the personal laws continue to be protected under the garb of the fundamental rights to freedom of religion (Article 25). It must be kept in consideration that the pre-constitution laws based on male dominance and control over female sexuality were designed to preserve the traditional family system. Women have fewer rights than men and gender equality was subordinated to other considerations. The condition of the woman was and is full of disabilities and disqualification. Until recently their participation in civic life, in the workforce, in industries, in education and administration was minimal or insignificant.60 Since independence, several amendments have taken place in the personal laws to improve this situation but a lot can be done to improve and remove sex iniquities.61 An evaluation of the decisions regarding personal laws indicates that the Courts are reluctant to intervene in this regard or to declare discriminatory laws ultra 56 Midha

(1990, p. 72). (2010, p. 15). 58 Agnes (1999, p. 1). 59 Menon (ed.) (1999, p. 16). 60 Devinder Singh and Dinesh Kumar in Singh (ed.) (2009, p. 44). 61 The gender inequalities under the HSA were resolved by the Amendment of 2005 before which woman has no legal right in the ancestral property of their family. Till recently, the offence of adultery (Section 497 of the IPC) based on an irrational classification between women and men and denied women and the similar right given to men continued in the law. 57 Satpathy

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vires the Constitution. Practically the Courts made some progress either by liberally construing different provisions in favour of women, either by reading them down or straining their natural meaning but only with exceptions.62 Thus, religion has proved to be a formidable barrier to legal reforms favouring women in the areas of marriage, divorce, adoption, succession, maintenance, and guardianship.63 The family matters is based on religion and covered by the personal laws of each community. They are beyond the scope of states interference due to the protection of Article 25 of the Indian Constitution. The traditional religious notion about the role of women makes them face discrimination and subordination within family and society. This is often endorsed by the law by denying women their fundamental rights. The hold of religion over our society is so strong that it suppresses women and controls their lives.64 Reform in society is possible only when the influence of religion over our society can be watered down. Only a realistic and progressive change in the law according to the constitutional mandate for equality and its effective implementation can establish the real rule of law for achieving social justice for women.65 Religion tends to legitimize the patriarchal social practices through the positioning of the duties of the respective gender and their conduct. In the context of the role of media towards women emancipation there is so much more that can be done. Media is a powerful medium that affects the young susceptible minds who tends to accept and adopt things shown by the media. Depicting distorted families and social values have serious effects on gullible minds. The influence of television can be traced right from opinion formation to almost every field of human activity. To know the impact of tele-viewing, a study found that the decline of the patriarchal family system, crumbling of the joint family system, the spread of education, economic freedom and movement towards total liberation of women have made the urban Indian families more democratic but the rural patriarchal families haven’t changed much. The media creates sensationalism for every traumatic event that concerns women. Rather than focusing on publishing the success stories of women achievers, media portrays women as a commodity. The focus is first on promoting women subordination and second to show such women as ideal women. This irresponsible and gender insensitive portrayal can never bring the required attitudinal changes in society. Though today, women’s organizations are watchful of women’s portrayal in media and they scrutinize each remark and portrayal of violence against women.66 The way gender and sexuality is portrayed in media is often criticized. The indecent portrayal of women and sexual appeals in print, electronic, advertising or any other manner demeans women. Depicting the negative and stereotypical images of women 62 Mary Roy v. State of Kerala, 1986 (2) SCC 209, AIR 1986 SC 1011; Yamuna Bai Anant Rao Adhav v. Anant Rao Shivam Adhav (1988) 1 SCC 530, AIR 1988 SC 644; Sarala Mudgal v. Union of India (1995) 3 SCC 635. 63 Bhandare (2010, p. 8). 64 Midha (1990, p. 76). 65 Midha (1990, pp. 76–78). 66 Khan (2006, p. 344).

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is indicative of the general lack of sensitivity towards gender issues. Indecent representation is also a gross violation of the fundamental rights and duties enshrined in the Constitution of India under its various provisions and other laws.67 During the Fourth World Conference on Women, the Beijing Declaration and Platform for Action (1995) was adopted that was later endorsed by the United Nations General Assembly in 1996. It recognized 12 critical areas of concern with the potential of the media towards the advancement of gender equality and empowerment by promoting a well balanced and non-stereotypical portrayal of women. Begining from 1995, the Global Media Monitoring Project, 2010 maps the representation of women and men in news media worldwide. The studies (1995, 2000 and 2005) revealed that women are grossly underrepresented in news coverage in contrast to men resulting in an imbalanced picture of the world, non-representation of women’s voices and perspective in news media and presenting a male-centred world view. Globally, 24% of people in the news are female. 28% of news subjects in stories by female reporters were female against 22% stories by male reporters. Only 13% of the news stories focus on women. A meagre 6% highlighted gender equality or inequality; 9% challenged them and 46% reinforced gender stereotypes. Over 50% of stories on ‘crime’ reinforce stereotypes with 7% of stories reported by women challenge stereotypes against 4% by male reporters. 35% of stories by female reporters reinforce stereotypes compared to 42% of stories reported by men. In the Internet news domain, only 36% of the news stories reported by women, compared to 64% of stories reported by men.68 The stakeholders were called upon to join forces to combat ‘stereotyping of women and inequality in women’s access to and participation in all communication systems, especially in the media’.69 Media as the mirror of society gives information, educates people and influences public opinion. The portrayal of women in every form of modern media leads to significant implications for women. Media was found to be instrumental in creating awareness about laws protecting women’s rights.70 Television is a medium for disseminating knowledge about women-centric laws and their access to justice. It was, found that 60.0% of women agree that television decreases ignorance about laws protecting women’s rights, 24.9% don’t think so, whereas the remaining 15.1% 67 Article

21 grants women an inherent right to human dignity. Article 51A of the Constitution places a duty of every citizen of India to renounce practices derogatory to the dignity of women. Section 294 of the IPC prescribed penalties for ‘obscene’ acts or conduct. The indecent representation of women through advertisement or in publications, writings, paintings, figures, or any other manner is prohibited by the Indecent Representation of Women (Prohibition) Act, 1986. 68 As per Who Makes the News? (The Global Media Monitoring Project (GMMP, 2010). Available at: https://whomakesthenews.org/wp-content/uploads/who-makes-the-news/Imported/ reports_2010/highlights/highlights_en.pdf. Accessed on 15.03.2015 (Accessed on December 15, 2020). 69 Rethinking Women’s Empowerment and Gender Equality in 2015 and Beyond (2015, p. 8) UNESCO, Paris France. Available at: https://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/ BSP/GENDER/PDF/BPEN.pdf. (Accessed on: September 30, 2020). 70 Mahajan in Vir and Mahajan (eds.) (1996, p. 126).

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remained neutral on this query.71 Media can be used to create public awareness of women’s rights and for breaking numerous patriarchal stereotypes. But the derogatory representation of women reinforces gender stereotypes. In India, several laws are enacted to take care of the way women are portrayed in media.72 Therefore media can play a vital role in the promotion and preservation of gender justice. It has immense potential to promote the universality of human dignity, equality and welfare. However indecent representation of women contravenes women’s fundamental right to dignity. It encourages practices that are derogatory to women who are already a vulnerable gender because of their sexuality. In recent years it has been observed that the media has emerged as a major exploiter of woman. Even the advertisements show women as a commodity and create an image of ideal women that is gender-biased and stereotypical. Patriarchal ideologies are perpetuated through and reflected in the media by reinforcing male dominance and self-sacrificing, self-effacing, faithful wife and devoted mothers image for women.73 All these portrayals make women reel under guilt in case they even think about seeking outside help against the wrongs committed in family domain leave apart them approaching the legal machinery for their grievances. Both media and religion are hindrances to women’s rights and access to justice.

5.2 Revolutionizing Gender Justice and Areas of Concern ‘Gender justice’ is often used interchangeably with other concepts like gender equality, gender equity, women’s empowerment, and women’s rights. Gender justice means providing equal, fair and impartial treatment to women in every domain. Women have been long denied equality in status and a variety of rights. So giving them their legitimate place in society becomes pertinent. The concept is based on the idea that women are not an inferior sex.74 In the legal context gender, justice means formal and equal rights between men and women. Gender differences are socially created, upheld by ideology and perpetuated by socialization processes that affect the way women come to experience the law.75 Gender justice takes in its sweep every facet of life.76 Gender equality is that point of human social development in which women’s rights, responsibilities and opportunities will not be determined by them being female. They will get the opportunity 71 Mahajan

in Vir and Mahajan (eds.) (1996, p. 126).

72 The Indian Penal Code; the Press and Registration of Book Act, 1867; the Young Persons Harmful

Publications Act, 1956; the Press Council of India Act, 1978; the Anti-Sexist Act of 1986; the Cable Television Networks (Regulation) Act, 1995; the Information Technology Act, 2000; and the Indecent Representation of Women (Prohibition) Act, 1986. 73 Desai and Krishnaraj (2004, pp. 290–300). 74 Nair (2011, p. 7). 75 Kapur and Brenda (1996, p. 89). 76 Manohar (1999, p. 39).

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to realize their full potential just like their male counterparts.77 Gender justice can be defined as the ending of inequalities in terms of the distribution of resources and opportunities, human dignity, personal autonomy and rights that result in women’s subordination. It implies access to and control over resources and making women the power-holders in the household, the community, and the market. It includes making the state accountable for actions that limit women on the grounds of gender, or their access to resources or capacity to make choices.78 Thus, gender justice implies that no one should be denied justice or discriminated against only based on gender. It is not an easy process to achieve gender equality by changing deeply ingrained attitudes. Despite efforts, the picture is still overwhelming, as the age-old practices continue in the home, community and the decision-making.79 Our patriarchal and feudal society assigns a subordinate role to women and confines them to home-related tasks. This results in their socio-economic dependence and exploitation. This realization about the deep-rooted gender injustice is gradually leading to restructuring and reforms in the society on a just basis. Transformation of the social, moral, economic, political and legal and constitutional framework is now undertaken.80 Laws are granting numerous rights to women including equality, freedom, property, education, constitutional remedies, and their protection from exploitation. These state enacted special laws safeguards women interests but unawareness of these rights has interfered in their implementation and utilization to enjoy the offered benefits.

5.2.1 Gauging Gender Justice and Equality for Women Gender justice is an important concern that is slowly gathering pace. It means ensuring equal rights between men and women and challenging gender biases in the legal process. Law can be a mean to achieve equality for women for whom the discriminatory, exclusionary, oppressive laws and legal obstacles need to be removed and women’s access to law should be increased. Some important parameters help in gauging gender justice and equality for women. These are women’s participation in the development process, enhancing their decision-making rights and income earning capabilities, health and nutrition, raising productivity and reducing male–female literacy gap.81 After independence, the twentieth century saw the Indian women bringing several achievements to their credit in every field. Women are bringing laurels and establishing their identity. Society is changing, with a liberal upbringing and social

77 Sharma

(2006, p. 1). and Navsharan (ed.) (2007). 79 Sharma (2006, p. 2). 80 Manohar (1999, p. 39). 81 Barsha (2014, p. 226). 78 Mukhopadhyay

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reforms.82 Women are engaged in work that contributes immensely to the life and wealth of nations. However, the progress is far from satisfactory and limited to a few areas and families. The majority of women face the age-old attitudes that consider them as second class citizens with no rights of their own. Regressive diktats are issued by the self-styled guardians of social values. Women face sex-selective abortions occurring at an overwhelming rate leading to a low gender ratio.83 They have little access to productive resources and control over family income.84 Women’s social isolation and marginalization from the decision-making process, limited employment opportunities, inequality of wages and poor access to education are the different facets of gender injustice.85 The statistics show an imbalance between the male–female ratio, discrimination in education, and property rights. Lack of education and mistreatment in the form of DV, child marriage, early pregnancies, dowry, and divorce are other issues that concern women. In economic terms, women constituting another half of the population are human resources and economic wealth for a country that remains severely affected by gender injustices and gender inequalities. The patriarchal laws and their judicial interpretations reinforce oppression and marginalization of women needs.86 However, with the acceding to the international instruments and demands from women groups, the judiciary too is evolving and interpreting a right-based approach against inequality, discrimination and for women empowerment. Various state-run development activities and programmes are initiated to bring women into the mainstream of development. Slow changes are visible in the literacy rate, socio-economic conditions, work participation but much more remains to be done to ameliorate the subordinate status of women especially in the rural areas.

5.2.2 Women Movement and the Impact of Reforms on Women Welfare The re-emergence of the women’s movement in the latter half of the century has resulted in changes in how contemporary women view themselves and their place in the world.87 The concept of women’s empowerment entails the redistribution of power that challenges patriarchal ideology and male dominance. It means to alter the structures or institutions that reinforce or perpetuate gender discrimination.88 It

82 Khan

(2006, p. 320). Today (April 1, 2011, pp. 4, 8) No Place for Girls in Rising India, New Delhi. 84 Khan (2006, p. 392). 85 Gupta (2000, p. 49). 86 Gonsalves (1993, p. 183). 87 Williams (1982, pp. 175–179). 88 Suguna and Rani (2007, p. 302). 83 Mail

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concerns the transformation of power relations at individual, family, group, organization, village, community and society.89 Globally, women’s issues got impetus after the declaration of the period 1975–1985 as the United Nations decade for women. In the last fifteen years, women have become vocal about gender discrimination inbuilt in the law and legal theories. The women’s movement is growing that is articulating feminist ideologies and working vigorously towards developing a feminist jurisprudence. Hopefully, it will soon expedite the social transformation that the feminist ideology envisions.90 Before independence, women’s organizations like the Women’s India Association 1917, National Council of Women in India 1925 and All India Women’s Conference 1926 become prominent. Beginning from 1947 the Indian women’s movement focused on the fight for breaking age-old shackles. Established in the nineteenth century, women’s organizations like the All India Women’s Conference (1924) came into the picture with the agenda of women welfare. Groups like the Ladies Association (1886) provided for the training of poor girls; Sharda Sadan (1892) provided education and employment to women; Shri Zoroastrian Mandal (1903) and Gujarati Hindu Stree Mandal (1980), Gujarati Hindu Stree Mandal, Seva Sadan at Poona, Mahila Samiti (women’s institutions), Bhagini Samaj, Women’s India Association, National Council of Women in India carried on the women causes and marked the beginning of the Indian women’s movement. The gender biases were challenged by the reformist movements organized by social reformers. Some of the major reformers of the modern times who worked towards the women causes includes Raja Ram Mohan Roy (sati, female education, widow and inter-caste marriage, early marriage, and polygamy), Ishwar Chandra Vidyasagar (early marriage and polygamy, women’s education, widow marriage), Swami Dayanand Saraswati (child marriage and enforced widowhood). Leaders like Swami Vivekanand, Ramkrishan Paramhans, and Gopal Krishna Gokhale were chiefly concerned with the cause of women education.91 Though the reformers were focusing on the general welfare of the women majority of them worked in limited areas without any definite shape. Internationally, to alleviate the women’s repression, the UN passed various instruments focusing on their liberation and enhancing their dignity. Various other instruments aimed at providing safeguard to women’s human rights and provide them with an environment suitable for the safety of their person and property and the personality development. Right from the UDHR the ICCPR and International Covenant on Economic, Social and Cultural Rights (hereinafter ICESCR), CEDAW and other international human rights instruments have insisted on gender justice. They made it mandatory for every state party to enforce them through appropriate legal and other

89 Bhasin

(1993). and Parasher (eds.) (1999, p. 138). 91 Gupta (2000, p. 60). 90 Dhanda

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measures.92 For example, as a signatory to the world declaration on the survival, protection and development of girl child, the Indian Government has banned sex determination test to prevent female foeticide. Influenced by these International instruments, the judiciary is giving focus on women’s rights. The international provisions are incorporated into the Indian laws and judgements.93 Box 5.1: Towards Equality, Report of the Committee on the Status of Women in India (1971–74) Government of India In India, the report by the CSWI submitted to the Minister for Education and Social Welfare, Government of India probed into the structural inequalities and injustice faced by women. The report examined two decades to find out the developments so far in the status of women. Various parameters were selected to gauge the pace of development. They covered education and employment and the effect of the constitutional, legal and administrative provisions. The Committee recorded that despite Constitutional and legal equality, women’s status in every sphere of life had remained unequal with persistent disparities. It critiqued that although many laws are passed to remove these disabilities, they have had little impact as women lack awareness about their legal entitlements. The Committee made a recommendation wrt. bigamy, child marriage dowry, compulsory registration of marriages, changes in succession and matrimonial property right and the constitution of the family Courts. Despite a good number of years many of these recommendations are still not materialised. The new age women movement comprised a sensitive section of women who developed a new perspective about humiliation, atrocities and torture. They initiated a challenge against the dominant sociocultural and economic norms and socioeconomic and politico-cultural order.94 The feminist movements were aware of the patriarchal control, exploitation and oppression at the material and ideological levels of women’s labour, fertility and sexuality, in the family, at the place of work and in society in general. It developed conscious action by women and men to transform

92 The Charter of the United Nations 1945 reaffirms fundamental human rights and the equal rights of men and women without distinction on race, sex, language, or religion (Article 1). It prohibits discrimination based on sex (Article 13). The Convention on the Elimination of all Forms of Discrimination against Women 1979 (hereinafter CEDAW) states the absence of gender-based discrimination as the indicator of gender justice (Article 1 and 4). Also see Universal Declaration On Human Rights 1948 (UDHR), The International Covenant On Civil And Political Rights 1966 (ICCPR), Commission On Status Of Women, The Beijing Conference, South Asian Association For Regional Cooperation (SAARC), The United Nations Millennium Declaration 2000. 93 Municipal Corporation of Delhi v. Female Workers (Muster Roll) AIR 2000 SC 1274: The Apex court of India extended the benefits provided under the Maternity Benefit Act, 1961, to the Muster Roll or Daily Wager women employees of Delhi Municipal Corporation by incorporating Article 11 of CEDAW 1979 to the Indian Law. 94 Desai (1985, p. 992).

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the present situation.95 The major idea of this movement is to accomplish equality for women by attaining their rights and freedom in every space. The first wave of this movement is identified with the social reform movements of the nineteenth century that has widow remarriage and women’s education as central issues. The second wave stirred voice for equal rights for women campaign.96 The contemporary phase is the third phase of the women’s movement and characterized as the third generation of women’s movements in modern India. Some even believe that the fourth wave has already started from 2012 onwards that has women empowerment as its focus. The current feminist movement is using a range of medium to promote gender equality. The use of internet tools is increasing (the ‘#MeToo’ tweets).97 These women movement in India campaigned for their diverse rights through interventions from the state machinery. The women’s organization is vocal about the need to reforms the laws to grant more rights to women at every level. The women movements believe in the notion that legal reforms can bring about social change and gender-just egalitarian society.98 Many landmark developments brought the spotlight on the power of the feminist movement in India. The Mathura rape case99 and the public outcry led to a sweeping change in the rape laws, the Shah Bano case100 and its aftermath led to the grating of maintenance rights to divorced Muslim women under Section 125 of the CrPC even beyond the iddat period. The Bhanwari Devi rape case (1994) for opposing the practice of child marriage and the subsequent developments regarding sexual harassment law is also relevant to this context. Recently in Shayara Bano case101 the SC declared the Muslim form of divorce by triple talaq invalid. The case was supported by Muslim women’s rights organizations. Some of the other achievements of the concerted action and campaign of women’s organization are passing of Anti-sati legislation, anti-dowry legislation, and reservations for women at state and local government levels, criminalization of DV and reforming gender-discriminatory personal laws. The common perception is that women’s group are the precursor of vigorous legal prosecution against the cruel and violent husband. They help the survivor in penalizing men and by encouraging women to do life changes. They inform and make women aware of their rights and violations through campaigns for reforming legislative provisions. As a result of an effective role played by these women’s organizations, the media highlights gender discrimination, loopholes in crime investigations and prosecutions for the sensitization of state machinery. This is reflected in recent decisive reasoning by the legal functionaries, fair laws and fair decisions in cases relating to women. The NGOs run by these spirited women are engaged in gender justice, 95 Bhasin

and Khan (1999, pp. 3–6). (1998, p. 167). 97 Available at: Grady, Constance (20 March 2018) https://www.vox.com/2018/3/20/16955588/fem inism-waves-explained-first-second-third-fourth (Accessed on June 27, 2020). 98 The Report of the Committee on the Status of Women in India (1975). 99 Tuka Ram and Anr v. State Of Maharashtra, 1979 AIR 185. 100 Mohd. Ahmed Khan v. Shah Bano Begum And Ors, 1985 AIR 945. 101 Shayara Bano v. Union of India and others (2017) 9 SCC 1. 96 Mukhopadhyay

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reforms and are assisting in the form of shelter home services, medical support, conciliation and counselling. They help women in their property entitlements and in finding legal assistance. They reach out to affected women through legal aid, family intervention, alternative shelter, and economic programmes for income-generating opportunities. In the context of DV, organizations first attempt compromise and reconciliation through informal mediation and counselling, before encouraging women to take recourse to criminal law.102 Their responses to DV are primarily directed towards addressing the practical and strategic interests of women. However, they refrain from tackling violence face to face as they are aware of the structural nature of DV and Indian women’s position in particular as being dependent. They seek to empower women through education, legal awareness, asset creation, and mobilization of strong women’s groups through street plays, exhibitions and mass meetings.103 These women’s movements and resulting progress have achieved various structural and cultural changes towards equality and access to justice. They are helpful to a certain extent in stopping women’s exploitation in the various fields that are yet to sip down to a grass-roots level where women continue to be a victim of male domination.

5.2.3 Women Empowerment Through Law: Current Scenario Box 5.2: Women Under the Indian Constitution Article 15 The state shall not discriminate against any citizen. Article 15(1) Prohibits discrimination against any citizen on the grounds of religion, race, caste, sex etc. Article 15(3) Special provision enabling the state to make affirmative discriminations in favour of women. Article 21A The state shall provide free and compulsory education to all children of the age 6–14 years in such manner as the state may, by law, determine. Article 24 No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Article 39(a) The state shall direct its policy towards securing all citizens men and women, equally, the right to means of livelihood. Article 39(d) Equal pay for equal work for both men and women. Article 39(e) enjoins the state to ensure that the health and strength of workers, men and women and the tender age of children are not abused and that the citizens are not forced by economic necessity to enter a vocations unsuited to their age or strength.

102 Naqvi

(2010, p. 17). Violence in India: A Summary Report of Three Studies (1999, p. 20).

103 Domestic

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Article 39(f) enjoins the state to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that the childhood and youth are protected against exploitation and against moral and material abandonment. Article 42 The state to make provision for ensuring just and humane conditions of work and maternity relief. Article 45 The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Article 51(A)(e) To renounce the practices derogatory to the dignity of women. Article 243G read with Schedule 11 provides for the institutionalization of child care by seeking to entrust programmes of women and child development to Panchayat (item 25 of Schedule 11), apart from education (item 17), family welfare (item 25), health and sanitation (item 23) and other items with a bearing on the welfare of children. Women have always been discriminated against and have suffered in silence. Self-sacrifice and self-denial are regarded as their virtues and are subjected to all inequities, indignities and discrimination.104 The drafting committee members were aware of the plights of the marginalized section especially about their poor status in the Indian society. To ameliorate their condition the concept of protective discrimination under Article 15(3) was introduced in the Indian Constitution. Further the preamble of the Constitution provides for the equality of status and opportunity. It guarantees the right to equality as fundamental rights. The directive principles of state policy enjoin upon the state to adopt measures that will advance the goal of societal equality. To uphold the Constitution mandate, the Indian parliament adopted different legislative measures that oppose the social inequity, discrimination and various forms of violence and atrocities inflicted upon women. Box 5.3: Women and Penal Laws The numbers of penal laws enacted to ensures gender justice and social protection to women, and they address the issues of: • Female Foeticide: PNDT ACT, MTPACT • Child Marriage: Child Marriage Act 2006 • Dowry: Dowry Prohibition Act 1961 and Section 498-A of Indian Penal Code 1860 • Bigamy: Special marriage Act 1954, Hindu Marriage Act 1955 • Adultery: Indian Penal Code • Sexual crimes and harassment

104 Devinder

Singh and Dinesh Kumar in Singh (ed.) (2009, p. 43).

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• Marriage and Divorce: Cr P C, Muslim Women (Protection of Rights on Divorce) Act 1986 • DV: Protection of Women from DV Act, 2005 • Sati Devdasi: Commission of Sati (Prevention) Act 1987 • Karnataka Devdasi (Prohibition and Dedication) Act 1982 • Honour killing: proposed law is still under legislative process. The Indian legislature, from time to time has come up with empowering laws to provide protection and safety to women. Numbers of penal laws and amendments ensures gender justice and social protection to women. They address the issues of female foeticide, child marriage, dowry, bigamy, marriage and divorce. The Criminal Law Amendment Act, 1983 added Section 498A in the IPC to combat the menace of dowry deaths by providing that cruelty by the husband or his relatives against the women will be deemed to be an offence. Section 113A of the IEA, provides for a presumption regarding the abetment of suicide of married women. Apart from them, many other provisions stand for safeguarding and generating a sense of protection among women against the variety of crimes committed against them. Law and justice are the two important components of gender equality. The Indian judiciary has further evolved gender jurisprudence by giving life to Article 15(3). In Vishakha v. State of Rajasthan,105 the SC took a serious note of the increasing menace of sexual harassment at the workplace and elsewhere. Considering the inadequacy of legislation on the point, the Court assumed the legislative role, defined sexual harassment and laid down instruction for the employers. In Apparel Export Promotion Council v. A. K. Chopra,106 the SC found all facets of gender equality including prevention of sexual harassment in the fundamental rights granted by the Constitution. In Bodhisattwa v. Ms. Subhra Chakraborty,107 the SC held that rape is a crime against basic human rights. In Delhi Domestic Working Women’s Forum v. Union of India,108 the SC suggested awarding compensation to rape victims. The Court suggested that the Criminal Injuries Compensation Board or the Court should award compensation to the victims by taking into account, the pain, suffering and shock as well as the loss of earnings due to pregnancy and the expenses of childbirth that occurs as a result of rape. In Gaurav Jain v. Union of India,109 the SC laid down guidelines for the necessity of counselling, cajoling, and coercing the women to retrieve from prostitution and rehabilitating them. Even though so many laws exist on papers the poor enforcement of these legal provisions has not achieved their objectives. There are constant complaints of victimization and harassment of women by the enforcement agencies to whom they 105 Vishakha

v. State of Rajasthan, AIR 1997 SC 301. Export Promotion Council v. A. K. Chopra, AIR 1999 SC 625. 107 AIR 1996 SC 922. 108 (1995) 1 SCC 14. 109 AIR 1997 SC 3012. 106 Apparel

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approach for redressal of their complaints. The fact is evident from the figures relating to crime against women collected by the NCRB. The enactment of these statutes leads to the prima facie inference that our legal system is recognizing the special needs of women, however, at the functional levels; they do not always fulfil the central objective for which they have been enacted.110 The Constitution of India has conferred equal rights for males and females in every regard but lack of knowledge and awareness is hindering them. It is unfortunate that till today woman has no decisional freedom about her body and reproductive choices.111 The stringent law only leads to illegal abortions that negatively impacts their health rights and can be the reason for their death. The wife is treated as her husband’s property. For example the Adultery provision under Section 497 of the IPC.112 Till recently the section regarded the husband of the lady with whom adultery is committed as the aggrieved person and granted a right to file a complaint against the adulterer. Whereas the wife of the adulterer is not an aggrieved person, she cannot complain either against her husband or the woman, i.e. the wife of another person, with whom he has committed adultery. Matrimonial rape is not an offence under Section 375 of the IPC and provision like Section 9 of the HMA regarding the restitution of conjugal rights can force a wife to give company to her husband. Though judicial decisions have interpreted laws in women’s interests the true realization of gender justice remains a distant dream. Women unlike their male counterparts formally don’t exercise their rights.

5.2.4 Non-representation of Women at the Policy Framing Level If we look into history women were not part of the political milieu or decision-making processes. With the right to vote campaign women demanded more participation in the public and political fields.113 Internationally, CEDAW guaranteed women’s right to vote and full participation in decision-making. The Beijing Platform for Action also stated for achieving a balance between women and men in national decisionmaking positions. Article 21 of the UDHR gives everyone the right to take part in the government of his or her country. UN Economic and Social Council (ECOSOC) Resolution in 1990 recommended for targets to increase the proportion of women in leadership positions (30% by 1995 and 50% by 2000). But the Fourth World Conference on Women in Beijing reported that negligent progress had been made in achieving these targets.114 110 Dhanda

and Parasher (eds.) (1999, p. 184). (1993, pp. 6–10). 112 Sowmitri Vishnu v. Union of India, 1985 Cri. L.J.1302. 113 Gaspard (2007, pp. 145–153). 114 Information Paper LC Paper No. CB(2)1636/02-03(01). United Nations Targets for Proportion of Women in Leadership and Decision-Making. 111 Bhasin

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Women are always at the receiving end and continue to be the marginalized group. Constituting fifty percent of the total population they are meagrely represented in the political scenario and at various levels of government. Apart from the blemish of illiteracy, poverty, lack of awareness and patriarchal setup of society, there is a lackadaisical representation of women in every major field of activity including judiciary and legislative. Globally, women constitute only ten percent of the member of the legislative bodies.115 According to the Inter-Parliamentary Union (IPU), women represent on average 21.4% of all parliamentarians in 187 countries.116 The United Nations Millennium Development Goals (Goal no 3) discusses gender equality, women’s empowerment and increasing their voice in governance and politics. There is good progress on this aspect through special quotas, reservation and special measures for creating enabling environment.117 But progress is still far from the required number needed to increase women’s political participation. The Indian CSWI report also observed that women are not adequately represented.118 Law and policymaking are areas where there is a serious dearth of women participation. There are no challenges to male favouring that could tilt the imbalanced fulcrum. Women still lag behind men in the decision-making process and the consequent bargaining power that could change the power structures and dynamics.119 Women either confines themselves to their houses or takes up employment in which they can manage both their career and family. Generally, only a few elite women enter the political arena that is not always playing an important role in this entire process.120 To ensure a gender-neutral interpretation of laws and provisions, the people in charge of interpreting laws need to appreciate its gender aspect. Power doesn’t rest in the women rather the legislative and the judiciary remains in the hold of males or is male-dominated. Women are not treated as equal member and they are excluded in the political processes. When deciding policies for women and interpreting gender-just laws the misogynistic assumptions crepes in. This calls for women sensitive approach towards women causes to hold such powerful positions. According to the Report of the Special Rapporteur on the independence of judges and lawyers, women judges who could have given women beneficial interpretation to the law are often restricted in ‘low-profile’ cases and in areas of the law that are traditionally associated with women or confined to the lower Courts.121 If we look at the legal profession women are underrepresented in the capacity of judicial office and advocates. Women are 115 Gupta

(2000, pp. 190–191). at: www.ipu.org (Accessed on June 13, 2020). 117 See United Nations Department of Public Information (2010) Goal 3: promote gender equality and empower women. Fact Sheet (DPI/2650 C). Available from www.un.org/millenniumgoals/pdf/ MDG_FS_3_EN.pdf. 118 Towards Equality (1974) Report of the CSWI, GOI, p. 302. 119 Negrustueva (2000, p. 125). 120 Dixit (1998, p. 78). 121 UN Doc A/66/289 (2011, para 23–24) Report of the Special Rapporteur on the independence of judges and lawyers. 116 Available

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also markedly underrepresented on the HC (few women judges) and SC (after forty years a female judge was appointed with two presiding women judges today).122 The Court’s composition does not reflect states commitment towards promoting equality, fairness, balanced and impartial perspective on matters before the Courts. Women are not treated as an equal and they are not included in greater numbers in the political processes. The demand for greater representation of women in the Indian political institutions was not systematically regarded until the setting up of the CSWI that suggested that women’s representation in political institutions, especially at the grass-roots level, needed to be increased through a policy of reservation of seats for women.123 In 1993, the consensus around this demand resulted in the 73rd and 74th constitutional Amendment Act. It mandates the reservation of one-third of seats at the various levels of municipal elected bodies including the village, block and districts for women. However, the records make it clear that the elected women in the state legislatures remained at an average of 3–5% and 10–11% at the level of parliament.124 In 2014, seven out of 45 ministers were women, i.e. 15% as against 10% in 2004.125 11% of the women (total 62) were elected in the 16th Lok Sabha. Women’s participation rate is comparatively low in state legislative assemblies with just 8% share and 4% in legislative councils.126 Thus due to the 1/3rd reservation provision, the Panchayati Raj Institutions have a 46.7% women representation in 2013. There is a continual dip in women representation. In 1991, women constituted 5.2% of the membership of the Lok Sabha and 9.8% of the Rajya Sabha but that was lower than the representation in 1989. Thus, the poor representation of women at the policy framing level is worrying, given the recent state-led initiatives to ensure women’s representation in political institutions. In 1995, the question of quotas was raised again focusing on women in parliament. Initially, most political parties agreed to this proposition but soon doubts surfaced. When the bill addressing this issue was introduced in the eleventh parliament in 1997, several parties and groups raised objections. Even after seven decades of independence, the women members out of the total House strength of 543 linger at 12%. There were just 24 women in the first Lok Sabha which with not much significant increase in this number despite the repeated promise of 33% reservation to females by the political parties in their election manifestoes. The opposition shown to the eightieth amendment bill in the constitution that provides one-third reservation of seats for women in the lower 122 The

Central Statistical Office publication (2014) Men and Women in India: Out a total of 5 women judges out of 88 in Allahabad High Court, 2 women judges out of 32 in Andhra Pradesh, and ironically just one female judge out of a total of 29 in Kerala. 123 Government of India Publication (1974) Women and Politics Worldwide, Yale University Press, London. 124 Times of India (November 26, 2013, p. 6) Women have only 11% representation in India’s Parliament. 125 Central Statistics Office (2014) Women and Men in India. 126 Available at: https://timesofindia.indiatimes.com/india/Indian-women-hardly-have-any-say-indecision-making/articlehow/45009555.cms. (Accessed on September 15, 2020).

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houses of parliament and the state legislatures by the eleventh Lok Sabha is a classic example of the influence of patriarchy.127 Thus in Indian politics, women are gradually gaining their foot in the local bodies due to their high participation at the Panchayati level. On similar lines, state and national politics should be mobilized by encouraging and increasing women’s participation and representation at all organizational levels. Women should move away from traditional gender roles imposed on them by the dominant class due to the dominant power structure. Women’s political participation will help in altering the current power relations and patriarchal ideologies for transforming the structures and institutions that reinforce gender discrimination and inequality by bringing genderinclusive electoral politics. Women’s representation at every level will bring social justice and give voice to women facing violence.

5.3 Women Vulnerability Due to Domestic Violence Globally, women experience violence throughout their lifetime in different settings. Violence against women continues to be a global epidemic and is assuming a serious proportion in our society. It occurs in many forms both inside and outside the home. The agents of this violence may be a stranger or known, a husband or sometimes even parents.128 It is one of the most pervasive forms of human rights violations denying women equality, security, dignity and fundamental freedom. Even though most societies prohibit violence but it is often sanctioned under the garb of cultural practices and norms or through misinterpretation of religious tenets. Crime against women is an act of violence directed specifically against the person of women and can be classified on a different basis.129 The term violence is influenced by various socio-legal factors and it is difficult to give it a precise definition. The Declaration on the Elimination of Violence against Women (1993) was the first international instrument that addressed the issue of violence against women as being violative of women’s freedom. It defines violence as ‘any act of gender-based violence that results in or is likely to result in physical sexual or psychological harm or suffering to a woman including threats of such acts, coercion or arbitrary deprivation of liberty whether occurring in public or private life’.130 It is “violence directed against a woman because she is a woman or which affects woman disproportionately. It includes acts, which inflict physical, mental or sexual harm or suffering, threats of such acts, coercion, and other deprivation

127 Dhanda

and Parasher (eds.) (1999, p. 119); The Constitution (108th Amendment) Bill, 2008 (Women’s Reservation Bill), is still pending. 128 Mahajan in Vir and Mahajan (eds.) (1996, p. 169). 129 Desouza (2007, p. 284). 130 DEVAW GA Res 48/104(1994).

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of liberty”.131 The World Conference on Human Rights (1993, Vienna) focused on violence and its elimination against women in public and private life as a human rights obligation. Later, the Fourth World Conference on Women reaffirmed the findings of the Vienna World Conference and listed twelve critical areas of violence against women. Crime against women may be visible in the forms of atrocities against them. Violence against woman refers to words or acts, whether overt or covert, used to wrest from woman something that she does not want to give of her free will and will cause her physical injury or emotional trauma or both. It is categorized as criminal violence (rape, abduction, murder, molestation) or domestic violence (dowry death, wife battering, sexual abuse, maltreatment of widows and elderly women, and torture of daughter-in-law). Social violence means forcing women to go for female foeticide, eve-teasing, forcing a young widow to commit Sati, refusing to give a share in the property. It is important to know the impact of violence on women’s access to justice and vice versa. By ensuring access to economic resources, effective legal policy, reforms in discriminatory social norms and gender bias the gender justice gap can be closed.

5.3.1 Magnitude of Problem and Posed Challenges For ages, women have been easy victim of different kinds of violence. Crime against a woman is a universal phenomenon with differences from a society to another society lies only in the frequency, quantum and nature of such violence. The written records of human civilization prove that women were easy and constant victim of gender discrimination.132 According to WHO, worldwide 1 in 3 women (approx. 35%) have experienced violence in their lifetime.133 In the US, one in ten women experience rape by an intimate partner during their lifetime, with one in four would experience some form of severe physical violence.134 Generally, women are abused and attacked by men they know. About 60% of women are abused by their family members and 40% by strangers.135 In India, some progress is made but women remain trapped in patriarchal beliefs, traditional roles and face DV. The socio-economic reasons, financial dependence due to poor labour force participation and unemployment of the majority of the women further aggravate the problem by generating insecurities about divorce.136 Various 131 The general recommendation adopted in 11th session of the Convention on the Elimination of All

Forms of Discrimination against Women in its general recommendation No. 19 (1992) on violence. in Singh (ed.) (2009, p. 33). 133 Available at: https://www.who.int/news-room/fact-sheets/detail/violence-against-women (Accessed on March 09, 2020). 134 Breiding et al. (2014). 135 Uberoi (ed.) (2006, p. 135). 136 Rao and Sekhar (2002, pp. 543–560). 132 Ahluwalia

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amendments in CrPC, IPC and IEA aim to curb the crimes against women.137 But these efforts have not achieved women’s welfare, dignity and acceptance as an equal member of the society. As per official statistics showed society is grappled with the problems of sex determination tests, female foeticide,138 rape, poor health status, the literacy rate among women, DV, illiteracy, dowry death and harassment that are a manifestation of patriarchy and gender biasness. There is a rampant spread of social evils likes, child marriage, sexual harassment and exploitation of women workers. Over the years studies on DV and its impact have repeatedly thrown up alarming statistics and finding.139 Indians National Family Survey found that more than one in three Indian women (35%) has suffered physical and sexual violence in their marriage. Crimes against women are continuously rising.140 The DV is alarmingly high in India and about once every five minutes an incident of DV is reported in India (BBC, website. 2014). Family issues leading to suicide is also high in India. The NCRB under the category of ‘Crime in India’ provides statistics on crimes committed under the IPC. Referring to the NCRB data of 2012 there are 15 suicides an hour or 371 suicides a day. On average 84 suicides out of 371, a day is due to family problems that have socio-economic reasons for men but emotional issues for women. The percentage of suicides by married men was 71.6% and married women 67.9%. One out of six suicides is by a housewife (NCRB, 2013). The norms of acceptable behaviour in a society conditioning and cultural norms, traditional gender roles, low educational level, poverty, and marriage at a young age are responsible for DV.141 If we look at these reports, of all IPC Crimes the cases registered under Section 498A have the lowest conviction rates. Since 2012, the number of withdrawn cases has been more than the number of convictions each year. While the number of convictions was between 6000 and 8000 in each of these 10 years, the number of acquittals increased consistently. From 24,404 acquittals in 2006, this number went up to 39,658 in 2015, an increase of more than 60%. At the end of 2006, a total of 2.06 lakh cases concerning DV were pending that increased to 4.77 lakh by the end of 2015, an increase of around 130% in the last 10 years.142 The high reporting of DV shatters the general perception that women are safe in their homes. The Delhi government’s women’s helpline receives a staggering 450 or more calls every day, nearly 90% of these calls are of DV and from women in distress in their own homes. Delhi police have also formed a crime against women cell in

137 Some

of the important provisions are: Section 228A, 304B, 376, 406, 498A, under IPC, and Section 113A, 113B, 114A and Section 46, 160(1), 327, CrPC. 138 Current sex ratio of India in 2012 is 940 females for every 1000 males. 139 Jaising (2007, p. 102). 140 See statistics by National Crime Records Bureau, Report: Crime in India, Ministry of Home Affairs. 141 Visaria et al. (1999, pp. 4–5). 142 Available at: https://www.thequint.com/news/india/conviction-rate-lowest-domestic-violencecruelty-498a-ipc (Accessed on August 04, 2020).

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each of its 11 districts.143 Actual incidents taking place is much higher than the ones reported. Because of the lower reporting of sexual or DV, the results can be twofold. One the true picture of the problem is not revealed affecting the policymaking for the protection of woman. Secondly when the violence is tolerated and goes unreported the perpetrator and the like-minded persons gain more courage resulting in the repetition of such acts.144 Women are reluctant to speak about DV and seek help outside the four walls of the house and others are not always willing to help them in their plight. In cases registered under the DVA, a petition filed should be decided within 60 days. The act provides quick redressal but there are long waits even at this forum due to heavy workload, lack of infrastructure and manpower to dispose of cases within the stipulated time. There is not even a single case that was dismissed at the pre-summoning stage, decided in 60 days, dismissed on merits or ending in a conviction.145 The contemporary debate is about how best the Court should resolve the conflict between DV and ADR. It is a matter of contest that if mediation and counselling should be made mandatory or if the further re-victimization of battered women who have shown the courage to stand against the wrongs need to be prevented.

5.3.2 Factors Perpetuating Domestic Violence According to DEVAW, gender violence is regarded as ‘a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men’.146 From the last few decades, the woman issues and the deliberations on the issue of crime against woman have gathered importance both at national and international fronts. This issue is attracting the attention of the masses and people in power due to the increased frequency of crimes shocking the sensibility of mankind.147 DV is one of the most complex phenomena that have deep and primordial roots. It is embedded in the sociocultural structure of a society. It is rampant and every day shocking cases relating to the crimes against women makes headline in the newspaper as a reminder of the ground realities.148 Various factors are responsible for the perpetuation of these crimes and predictors of violence in a particular society. These causes 143 Hindustan

Times (September 14, 2012, p. 4) Domestic violence tops calls on helpline (New Delhi). 144 Ahluwalia in Singh (ed.) (2009, pp. 38–40). 145 Hindustan Times (September 14, 2012, p. 4) 14,887 cases, not one decided since 2007 (New Delhi). 146 Declaration on the Elimination of Violence against Women Proclaimed by General Assembly resolution 48/104 of 20 December 1993. 147 Ahluwalia in Singh (ed.) (2009, p. 33). 148 Hindustan Times (December 24, 2010) Bihar Leads Wife Beaters Pack.

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are several, complex, interconnected, institutionalized and with sociocultural reason keeping woman vulnerable. The problem is graver in our society as the social system has put restrictions on a woman’s ability to go away from the abusive family setting. Early child marriage is prevalent in many parts of the country. These young girls stop going to school get married and become easy target of DV. DV against the wife is accepted as a cultural phenomenon justified on the logic that men beat their wives to improve them. Women are socialized to tolerate violence as a part of life and made to believe that men use physical violence to resolve conflicts.149 The lower rank police view it as a societal norm. The presence of economic inequality between men and women and the economic dependence of women on men forces them to tolerate such acts of violence. Due to lack of cooperative effort on the part of all, i.e. police force, social scientists, jurists, social workers, judges the pledge of fair and speedy justice for women is yet to be achieved.150 According to the Annual Report of NCW on DV and matrimonial disputes, a good number of complaints were registered every year. The male has complete authority and control of decision-making. Thus, the unequal power relations, belief in inherent male superiority, lack of economic resources, cultural sanctions, religious and historical traditions, and men’s nature of being possessive, suspicious, or dominant contribute towards the alarming magnitude of DV in India. A woman is more susceptible to exploitation due to her social background (which refers to her age, education and training), level of support (which depends on the support of her parents, in-laws, peers and others), expectations of others (including her husband, parents, in-laws, children, kin, work colleagues, peers, etc.), economic base (i.e. whether she belongs to the low, middle or upper-income group) and self-image (whether she considers herself timid, bold, helpless, weak, strong, etc.).151 A good amount of research shows the impact of DV. Not only the physical but the mental torture of the wife is equally injurious. It may be even more devastating than physical assaults. It is manifested in the form of wife taunting, insulting her in the presence of the children, guests and domestic help, ignoring her completely and cutting off communication with her.152 Cross-cultural studies on family violence and rape, drawing on data from 90 societies throughout the world, suggests that four factors, taken together are strong predictors of violence against women in society. These are economic inequality between men and women, a pattern of using physical violence to resolve conflict, male authority, control of decision-making and restrictions on women’s ability to leave the family setting.153 Besides if we were to develop a typology of violence against women, we may give six types of violence which may be money-oriented (seeks power over the weak) or pleasure-seeking (which is the result of the perpetrator’s pathology). It can be violence which is the result of stressful family situations, 149 Khan

(2006, p. 331). (2001, p. 68). 151 Uberoi (ed.) (2006, p. 141). 152 Khan (2006, p. 331). 153 Vandana (2008, p. 15). 150 Saxena

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and Violence which is victim-precipitated.154 The personality of the women victimizers is equally relevant. People suffering from depression, inferiority complex, low self-esteem, lack of resources, skills, and have a sociopathic personality. They are possessive, suspicious and dominant nature who faced stressful situations in family life and are frequent users of alcohol.155 The presence of certain motivating factors brings about violent behaviour, viz. characteristics of victims and characteristics of victimizers, victim’s provocation, intoxication, hostility towards women, and situational urge. A holistic approach to the combination of these factors alone will give us the correct causes for the use of violence against women. For women it is often difficult to prove DV as the offence is often committed in private and is not regularly reported. The sufficiency of documents for proving physical injuries or psychological harm can be a problem. The delay in registering the complaint is another factor that leads to the loss of crucial evidences. Further women are pressurized to compromise the case and drop all the charges against their husband. Women fear costly and long legal battles. It is also an important point to note that women may not exactly be seeking a divorce but using legal machinery to create fear in their husband’s mind so that the violence against them stops. The judiciary has interpreted laws in women’s best interest to fill in the gaps, at times by even playing the role of legislators. But these laws and judicial decisions are unable to change the scenario of gender justice and DV in the country. The tendency to consider DV as a secondary issue and focusing on dowry harassment, bigamy, etc., mitigates the gravity of this offence.156

5.3.3 Ignorance of Domestic Violence Laws Due to sociocultural situations women face disabilities and constraints while accessing law and are unable to enjoy the rights guaranteed to them under various laws. Women are largely unaware of the beneficial laws enacted for their benefit. They are ignorant of their legal rights and entitlements.157 India has adopted numerous legislations that tackle the various forms of social discrimination and violence against women. As a signatory state to gender justice based women-centric conventions. The Indian government has made laws for the protection and development of women. It has undertaken initiative and action plan that are guarantying special laws and protection for the safety to the woman in India.158 They ensure gender justice and

154 Uberoi

(ed.) (2006, p. 136). (ed.) (2006, p. 136). 156 Domestic Violence in India—A Summary Report of Four Records Studies (2000, p. 36). 157 The National Commission for Women’s Report (2001, p. 4) Towards Equality—The Unfinished Agenda—Status of Women in India. 158 The Dowry Prohibition Act, 1961, The Commission Of Sati (Prevention) Act, 1987, The Immoral Traffic (Prevention) Act, 1956, The Indecent Representation Of Woman (Prohibition) Act, 1986, 155 Uberoi

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social protection to women by banning practices that are contrary to women’s dignity and integrity and their constitutional, legal and human rights. As a legislative measure DV was introduced as a criminal offence. Section 498A and Section 304B to IPC were added within the ambit of criminal laws and by enacting the Domestic Violence Act, 2005. Section 113A in the IEA provided for a presumption against her husband or any relative of the husband regarding abetment of suicide in case a married woman dies within seven years from the date of her marriage. Before these enactments there were no specific legal provisions for dealing with gender-related violence within the home. The criminal offences were not sufficient enough to deal with the complexities of DV. The violence was inflicted by an intimate partner and the remedies available under the personal laws were divorce or separation. Now the DVA elaborates all forms of actual abuse or threat of abuse physical, sexual, verbal, emotional and economic nature that can harm, cause injury to, endanger the health, safety, life, limb or well-being, other mental or physical of the aggrieved person. The act seeks to protect varied rights of women and secures residence right in the matrimonial home or shared household, residence order, protection order, monetary relief, custody order, compensation order and other reliefs.159 For this, the Act provides for the appointment of protection officers (POs) and service providers (SPs) by the state governments to assist the battered women concerning medical examination, legal aid, safe shelter and other assistance for accessing their rights.160 The aggrieved person or any other witness of the offence on her behalf can approach a Police Officer, PO, and SP. They can directly file a complaint with Magistrate for obtaining orders or reliefs under the Act. It makes the breach of the protection order or interim protection order by the respondent a cognizable and non-bailable offence punishable with imprisonment and fine (Section 31 and Section 29). The salient features of this Act include a wide definition of DV and domestic relationship, rights to live in a violence-free home, remedies and creating public awareness under Section 11(a). It prescribes for legal aid to facilitate a woman’s access to reliefs under Section 9(d) of the Act, New Authorities of PO and SP. Thus, the DVA provides civil remedies to women facing abuse and curbs the gender-specific harm suffered by women in India. The Act provides civil remedies to women stuck in an abusive and violent relationship. It curbs the gender-specific harm faced by women. This act is a step towards gender justice. Unfortunately there is a lapse in its implementation. Practically there are various reasons behind the failure of implementation of the DVA with gender bias being the major one. Also government lack the necessary expertise to develop and implement a policy related to violence against women. There is a lack of integrated and multidisciplinary approach among lawyers, psychologists and people working together to develop women’s capacity.161 Women do not feel comfortable and safe within the counselling system. No follow-ups are done after the The Child Marriage Restraint Act, 1929, The Medical Termination Of Pregnancy Act, 1971, The Pre-Natal Diagnostic Techniques Act, The Prevention Of DV Against Woman Act, 2005. 159 Section 5, 8, 9, 10, 11, and 12 of the Protection of Women from Domestic Violence Act, 2005. 160 Section 12 and 14. 161 Sheela and Beera (2007, p. 36).

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temporary outcome of counselling. The change in the DV situation may be temporary which in the longer run may permanently shake women’s confidence in the Act and the entire legal system. The dual system of remedy by FC and criminal Courts creates confusion among battered women who have limited awareness. Confidentiality and women safety is yet another challenge during counselling or legal proceeding. Before checking the fault under the legal aspects, the tendency that women prefer ‘not to take legal action’ should be regarded as one phenomenon of failure of implementation of the Act.162 The phenomenon of violence against women is an approach that is employed to control women as a group through fear.163 It plays on the psychology of the victim by creating terror and anticipation of harm which has implications for her access to justice. An emotionally and psychologically weak battered woman will be less communicative and assertive about her rights and claims. She will be unable to take a strong stand for herself in various situations. She will be fearful throughout to discuss and negotiate her claims well during the Court and the ADR process. All this creates a situation of power imbalance and results in unequal bargaining which is discussed in Chap. 6.

5.4 Economic Marginalization and Women Seeking Justice The UDHR states that everyone should have the right to own property (Article 17.1 and 2) and an adequate standard of living (Article 25). Rights over property are necessary for providing equality and economic security for women. Lack of ownership excludes women from community decision-making processes and relegates them to lower social structure and their dependence on others. The male control over property and wealth in a society tends to concentrate power in their hands as decision-makers and women as socially vulnerable. In case of separation or divorce women seldom has claimed over the property or the land. In case they seek legal interference, they get maintenance and residence right at the most. For the social emancipation of women, they need to be financially independent so that they are less susceptible to social subjugation. The best possible way is by achieving financial equality for women for which it is essential to reduce economic disparities in marriage. Discriminatory inheritance and succession laws, non-recognition of marital property right, meagre maintenance and non-remunerable household work entangles women in economic dependency and inequality that makes them vulnerable to exploitation. For this conferring ownership rights on women from family assets is a relatable necessity.

162 Hsien 163 Claire

(2009, p. 4). Houston (2014, pp. 217–224).

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5.4.1 Women, Lack of Education and Empowerment The status of a woman is dependent on a combination of socio-economic factors. The negative effect of constrained socialization imbibes caring, affectionate, sensitive nature in women making them vulnerable to a degraded position in the home and society. Their poor status results in abuse, exploitation and grave violation of human right, both within and outside the home. To curb these wrongs, education and empowerment of women remains central; both of which are strongly connected. An educated woman has self-confidence and can be financially dependent. In case an adverse situation arises they can fall back on education that generates a sense of empowerment. Also, lack of education makes it difficult for them in availing their legal rights and entitlements. They don’t know the process and modalities to access rights and seek help. Thus, formal schooling is an investment for economic growth that enhances women’s access to resources and formal employment.164 Education enables women to take advantage of all the available opportunities. Educational empowerment helps women to build a positive self-image and self-confidence. It develops the ability to think critically, fosters decision-making and action. It ensures equal participation to bring social change. It encourages the group to bring about a change in society and provides the resources for economic independence.165 The crucial role of education for achieving gender justice and women empowerment was highlighted by the CSWI report and the various National Policies on Education. Unlike illiterate women who are at the mercy of their husband or father, educational attainment is vital for securing equity, social justice and for enhancing women’s social status. Education develops the ability to think critically and enables women to make informed choices in areas like education, employment and reproductive health.166 As a result of social reforms the nineteenth century saw a slight increase in women’s education. Education is the process of developing and reflecting on individual skill and abilities to enhance social mobility. Education brings self-reliance, personal and social development, social integration and political understanding. It brings conscientization among an individual to perceive, interpret, criticize and transform their environment. It is a way to empower women by equipping them with information and means to function effectively. Education widens their capacity for opportunities in life, employment and financial independence. The recent trend across the country is an increase in the level of education among women. The female literacy rate was 8.86 in the year 1951, around 39% in 1991 that rose to 49% in 1999, almost about half of the population. In 2001 it was 45.84 (Data based on National Sample Survey Organization). In 2011 as against 82.14% of educated men about 65.46% of women are literate. It is a substantial growth as compared to 53.67% till about 10 years ago.167 Gainful employment is a source of economic independence. With the education age of marriage is delayed and an enlightened woman no longer remains 164 Sharma

(2006, p. 147). (2000, pp. 180–181). 166 Satpathy (2010, p. 11). 167 Mail Today (April 1, 2011, p. 8) Child Sex Ratio in India. 165 Gupta

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malleable and subservient. Career and employment tend to enhance the potential of inter-caste marriage and reducing or eliminating dowry demands.168 Gender equality, women empowerment and economic and physical safety are in global focus now (Sustainable Development Goals 5-SDG 5). For this the elimination of gender violence, access to economic resources, and equality under laws remain central. Systemic gender discrimination in a patriarchal society is why women cannot attain equal footing with men.169 Empowerment for a woman means that she develops into a self-reliant individual; she can make the best of her own life in terms of her literacy, education, productive skills, access to capital, and her confidence due to qualification and abilities.170 Empowerment ensures social transformation and economic development of women in society. The political participation in the development process, in the socio-economic and political affair of society and the capacity to influence the political decision all forms part of the empowerment process. Empowerment and improving skills, removing oppression, exploitation, injustice on women and developing capacity among women or their decision-making role is crucial.171 There are five important dimensions of female empowerment concerning the global pattern of inequality between men and women. These include economic participation, economic opportunity, political empowerment, educational attainment and health and well-being.172 Among them, education is an important parameter for women empowerment. The idea of empowerment is a theory of social change, in particular a change from a hierarchical to an egalitarian society.173 Lack of education and empowerment makes women susceptible to legal problems, wrongs against them and denial of access to justice through the judicial system to enforce their rights. All this is in addition to the social pressure faced by women while approaching the Courts against their family.

5.4.2 Women and Economic Disparities Women’s property rights mean property and inheritance rights enjoyed by women in a particular society that varies according to socio-legal, cultural and political factors. Studies have proved that granting women inheritance rights and land rights essentially increase their access to sources; improves equality and provide economic opportunity.174 The religious laws in India are highly restrictive in their approach 168 Mukhopadhyay

and Susan (1994, pp. 19–20). (2006, p. 145). 170 Sharma (2006, p. 149). 171 Gupta (2000, pp. 180–182). 172 Sharma (2006, p. 4). 173 Gupta (2000, p. 182). 174 Gupta (2006). 169 Sharma

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towards women’s ability to inherit the land that thus puts them in a disadvantageous and unequal position. Women face property-related challenges under personal laws.175 Property rights are very important, not just for economic well-being but also for political and social empowerment. For women, these rights are a source of empowerment and help in their access to justice. Since women lack financial capabilities they get chickenhearted and become anxious about managing everything all by themselves. Battered women feel insecure outside the four walls of the house. They face emotional or physical constraints in their marriage but will try to manage the image of ideal married women. The hold of the traditional value of marriage as a lifetime union is so strong that they never think of breaking relations with their husband despite all the miseries.176 There are several reasons that restraints woman in dire marital distress choosing not to file a divorce petition. The most important being the social stigma associated with divorce. Few women are gainfully employed during the marriage or possess sufficient education or job skills to support themselves once they are on their own almost always causing serious economic difficulties for women. For the sake of her reputation and her children’s physical survival, unhappily married women will almost always choose to remain with an abusive or neglectful husband rather than initiate a divorce. Rather than leaving it up to them to decide what they want; fear of future uncertainty and a loss of self-worth discourages women from taking action or from walking out of a bad relationship. If compelled to leave of her own accord, she may seek shelter with her parents or a brother rather than filling a civil divorce. Usually, only after suffering marital discord or abuse for a long time, a woman tells her natal family about it. After this, she usually takes a passive role as male members take charge of the situation.

5.4.2.1

Women and Poor Property Rights

A woman may acquire absolute ownership of the property, whether movable or immovable through limited means. The legal provisions for granting limited economic rights are laid out among different personal laws peculiar to each community. Some of the legal obstacles in the community-specific personal laws have been removed but gender inequality reinforces women’s economic dependency on men and continues to operate and undermine women’s ability to claim property rights. Every community discriminates against women in the area of inheritance that are heavily shaped by the assumptions of patrimony and patrilocality.177 The property rights can increase the bargaining power and marital prospects of women who will be able to 175 Section

15 of HMA (in the absence of children and husband, the property of female dying intestate devolves upon her husband’s heirs and only in their absence to the parents). Personal laws of succession and inheritance of Muslim, Christians, and Parsi also reflect the patriarchal considerations. 176 Kashyap (1995, p. 148). 177 Kapur and Brenda (1996).

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make favourable life choices. However, the deep patriarchal ideologies existing in Indian society have marginalized women from acquiring property. Factors like male dominance, inadequate laws, lack of awareness and the prevalence of traditional attitudes support the denial of women entitlements. The importance of ‘independent property rights’ is crucial for welfare, efficiency, equality and empowerment.178 In the case of Hindus, during the ancient period, women had no property rights and the joint family owns the property in the name of the male coparceners.179 They were not permitted to claim the property division and had the right to maintenance till married and in case of divorce, had the right to come back to parent’s home and claim maintenance.180 The Mitakshara law governing succession among Hindus denied birthright to a Hindu female in the joint family estate due to the notion that she belongs to her husband’s family on marriage. She was not a party in the division of the property. The Hindu females were not the coparceners in the family property and the property was divided among the sons only. The Karta is the senior-most member of the Hindu undivided family. The women were not coparceners and hence not considered Karta of the family. The partition was on the doctrine of survivorship; i.e. those alive at the time of partition will get equal rights. The woman could not hold any property as an absolute owner except her Stridhan181 that was given to her as economic security and is paltry when compared to the inheritance share of a son of that family. Legally the Stridhan property of a married woman has to be placed in her custody, for her complete control over it even if she jointly enjoys it with her husbands the right over is Stridhan absolute.182 In reality, women are often deprived of their claims. Box 5.4: Five Types of Property Rights or Five Estates of Women Recognized Under the Hindu Laws Absolute estate devolves by inheritance and in the case of joint family an estate held by coparceners. Life estate property was given to a female under a document by the grantor for life. Limited estate a widow represents the estate of the deceased, but had lesser powers of alienation for legal necessity, binding debts.

178 Agarwal

(1994). Khandappa Magdum v. Hirabai Khandappa, 1978 SCR (3) 761. 180 Sankaran in Prashar and Dhanda (eds.) (2008, p. 285). 181 According to Smritikars, the Streedhan constituted those properties which she received by way of gift from the relations which included mostly movable property (though sometimes a house or a piece of land was also given in gift) such as ornaments, jewellery, and dresses. 182 Pratibha Rani v. Suraj Kumar (1985) SC 628. 179 Gurupad

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Restricted estate Section 14(2) of HSA is the property that is prescribed under a document in contradiction to a limited estate which becomes absolute to a female possessing property. Widows Estate property acquired by a widow by inheritance from her husband or son etc. but who had only limited estate having powers of alienation for a legal necessity, binding debts etc. Later the Hindu Women Right to Property Act, 1937 was passed which gave widow of a coparcener limited property rights till she was alive.183 Besides, the Hindu Succession Act, 1956 was passed to control and governs the succession to the property of Hindus. Thus before 1956, there were two kinds of women’s property, i.e. Stridhan and woman’s estate, but Section 14 of the Act abolished women estate by making her the absolute owner of their property.184 Further in 2005, to change this discriminatory scenario amendment in Section 6 of the HSA were made. It gave daughters property rights by making them coparceners, by giving birthright and providing them rights like a son. It brought all agricultural land on par with other forms of property and made Hindu women’s inheritance rights in land legally equal to men. If a Hindu male dies his property devolves by testamentary or intestate succession with a similar share allotted to the daughter and son.185 As a widow and class-I heir specified in the schedule of Section 8 of the HSA and being the widow of predeceased son of her father-in-law gets inheritance rights. The Act entrusted rules of succession for devolving the property of Hindu women dying intestate.186 Section 6 of HSA is a positive step towards the economic empowerment of Hindu daughters in their birth family. But this right is not extended to proprietary rights for married women in the matrimonial family property. Also, the full extent of the implications of the amendment of 2005 is yet to be achieved. Nonetheless, it is a commendable and desired step to check inbuilt biases against women in personal laws. The Islamic laws on inheritance are a combination of pre-Islamic custom and the rules introduced by the Prophet. Under Muslim Laws, there is inequality in inheritance laws as a son gets double of property given to a daughter. Daughter takes as a residuary. But the property inherited by a Muslim female is her absolute property and she has full ownership rights. A Muslim female both married or unmarried has a right of residence. The heritable property first goes to the sharers, then residuary, and then distant kindred. Mother is a sharer and, she takes 1/6th share when there is a child or son’s child and there are two brothers, one brother, one sister, two sisters of the deceased. She takes 1/3rd share when there is no child. The wife takes 1/8th share when there is a child and 1/4th when there is no child. Thus, there is inequality 183 Section

3(3) of The Hindu Women’s Right to Property Act, 1937, ‘The undivided interest of a coparcener on his death did not go by survivorship to other coparceners, but his widow took it as heir, though she took it as a limited estate’. 184 Section 14—Property of a female Hindu to be her absolute property. 185 Section 6 of the Hindu Succession (Amendment) Act, 2005. 186 Section 15—General rules of succession in the case of female Hindus.

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concerning inheritance in Muslim laws. For Parsi women, the ISA Section 50–56 deals with property shares. But the deceased’s widow and son get double the amount given to a daughter which is an unequal proposition. For Christians, the ISA under Section 31–49 deal with inheritance rights. The daughter gets 1/4th of the son’s share or Rs. 5000 whichever is less. She has no further right in seeking the division of properties. When the person dies, 1/3rd of the property goes to the wife if there are lineal descendants and if there are no lineal descendants then ½ will be given to her. There is no pre-existing right for a daughter in the family property. The right to inheritance arises when the parents die intestate. Thus, the economic situation of women, in general, is defective, and oppressive, and has poor property rights and inheritance rights. The disparity between sexes is evident as women do not enjoy equal status or opportunities. Property owned by women is only a fraction of property owned by men. Despite the legal provisions providing for an equal share, it is not unknown for married women to give up their rights in their parent’s property in favour of their brothers. It is this attitude that has resulted in a pitiable condition of women.187 Ownership of property is obtained through inheritance but women inheriting property from their fathers usually waive their right in favour of the male kin, for sustaining cordial relations with the natal family.188 Financial inadequacy and poor financial circumstance make divorce and separation an unrealistic option for most Indian women.

5.4.2.2

Non-recognition of Marital Property

You all know that even when women have full rights, they remain fatally downtrodden because all housework is left to them. In most cases housework is the most unproductive, the most barbarous and the most arduous work a woman can do. It is exceptionally petty and does not include anything that would in any way promote the development of the woman. (Vladimir Lenin)

Marriage is not viewed as an economic partnership and women’s work is not regarded as productive work. In case the marriage dissolves or the husband dies, a woman despite contributing so much will have no asset in her name. There is no corpus of matrimonial property or joint ownership of property on which both the spouses can stake a claim upon marriage.189 Family assets refer to those things that are acquired by one or other or both of the parties with the intention that there should be continuing provision for them and their children during their joint lives and used for them and their family as a whole. It comprises of one part of that is capital in nature including matrimonial home and the furniture in it and seconds which are revenueproducing such as earning power of the husband or wife.190 In this arrangement, women are financially dependent on their husband and play a secondary role in the 187 Bhandare

(2010, p. 14). in Prashar and Dhanda (eds.) (2008, p. 261). 189 Sivaramayya (1999, p. 112). 190 Saxena (ed.) (1993, p. 81). 188 Sankaran

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family. Society and customs expect men to establish a matrimonial home, earn and the woman to assume the domestic responsibility.191 During the subsistence of the marriage, women remain dependent on her husband and in case of the breakdown of marital ties, she can only claim maintenance and no further rights. Matrimonial property rights and their equal distribution remains a contentious issue. A woman contributes to the household economy and but they are neither protected nor offered any incentive for it. As stated by the World Bank, ‘no country can develop and achieve its full potential if half of its population is locked in nonremunerative, less productive and non-economic activities’. The inequality between men and women from ancient times is because of the gender division of labour and male control over property and wealth.192 Most women perform the role of homemakers and child bearers. Despite this important function, their work is undervalued financially and women get no independent remuneration for it. Consequentially they are financially dependent on their spouse. Patriarchal families don’t provide access to the property to women and keep them subordinate through imposing indoctrinate gender role in the society and family and shaming the non conformists. The domestic work of cooking, cleaning and childcare by women is invisible in India. It is often dismissed and not accounted for in the GDP and goes unrecognized. As per Organisation for Economic Co-operation and Development data for the year 2017, Indian women put an average of 352 min in a day into domestic work as against men who put only 52 min, i.e. 577% more than men but 66% of women’s work is unpaid. Shockingly even the categorization in the census of 2011, treated about 36 crores (367 million) women engaged in household duties as non-workers without due appreciation of the value of the services rendered by them.193 Though the Hon’ble SC objected to this biasness and listing of homemakers as ‘non-workers’ (on par with beggars, prostitutes and prisoners). The economically productive work done by them is negated that made the Court commented that this sort of approach is insensitive, a callous attitude towards the dignity of labour and suggests a gender bias against women. It called for laws to quantify women’s contribution to the economy.194 In western countries, housekeeping is fully is a paid professional job. In countries like UK marital property includes property acquired before and after marriage and a business owned before marriage. In the USA, marital property includes those acquired after marriage, except, property acquired by gift, inheritance and excluded by valid agreement among parties. In Singapore marital property includes assets acquired after marriage, acquired before marriage, assets whose value has increased during marriage.195 Unlike other foreign legal systems, the right to matrimonial 191 Saxena

(ed.) (1993, p. 81). (1971, pp. 118–119). 193 Available at: https://www.downtoearth.org.in/blog/economy/unpaid-work-women-and-the-bur den-of-unpaid-labour-63035 (Accessed on June 07, 2020). 194 Arun Kumar Agrawal v. National Insurance Co. Ltd. (2010) 9 SCC 218. 195 The Times of India (April 30, 2013, p. 5) Change to marriage Law including immovable assets (New Delhi). Available at: https://timesofindia.indiatimes.com/india/government-bid-togive-wives-inherited-property-share/articleshow/19791052.cms (Accessed on June 07, 2020). 192 Engels

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property is not recognized under the Indian Laws leaving the women at the mercy of others and their interests unprotected. Several social and economic constraints prevent women from fully claiming their legal rights to property including women’s lack of awareness about their legal rights and fearing violence from husbands or other family members for claiming property rights. Only the personal laws of Hindus under Section 27196 of HMA empowers the Court to make such provisions, as it deems just and proper in respect of any property presented jointly to the spouse at or about the time of marriage. An application to this effect should be made by the concerned parties. This rule applies to the properties presented at or about the time of marriage to the husband and the wife jointly and no other property. The section is silent about the criteria followed for such determination. Particularly this provision also falls far short of incorporating equitable principles of distribution of matrimonial property.197 The Portuguese Civil Code 1867, applicable to the inhabitants of Goa state and the union territories of Daman and Diu, is the only law that accords the substantive right to the wife in her husband’s property.198 In the event of dissolution of marriage by death or divorce, the entire property is split into two halves one for each spouse. Thus even where the wife is not earning but due to her contribution to household management she acquires an equal right in the property earned by her husband during the marriage. Other than that no other law recognizes this contribution of the wife to the family economy. As a result of this social setup, the women in Indian continue to be financially dependent on their husband. Their financial dependence on her husband relegates her to a secondary position in the family.199 A proposed change in the marriage law aims to give the wife an equal share in her husband’s property regardless of whether acquired before or after marriage and whether it is only in the husband’s name or held jointly. The government had brought the Marriage Laws (Amendment) Bill, a bill to grant the wife the right to a share in the movable and immovable residential properties.200 To conclude for according to complete justice to woman, there should be a recognition of the monetary worth of her domestic work in terms of money so that in case of a matrimonial dispute she can fall back on it. Economic emancipation is the most important part of the social emancipation of a woman. A woman having an independent economic existence will not be susceptible to social oppression, unlike a

196 Section

27: Disposal of property—In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. 197 Sankaran Kamla in Prashar and Dhanda (eds.) (2008, p. 262). 198 Saxena (ed.) (1993, p. 80). 199 Dutta, Nilima. In Indira Jaisingh (ed.) (1996, p. 279). 200 Available at: https://timesofindia.indiatimes.com/india/government-bid-to-give-wives-inheri ted-property-share/articleshow/19791052.cms (Accessed on June 07, 2020).

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woman who has no independent economic independence.201 Thus instead of continuing the archaic test of actual financial contribution, wives’ contribution should be legally recognized and their household work should be given economic value to determine ownership of matrimonial property.202 Once women are granted property rights under law it increases their economic capacity in terms of better bargaining power in the household. Thus, the disproportionate holding of assets occurs because of three reasons including the law and policies of the states do not recognize ‘domestic work’ as ‘productive work’ nature and nurture, and burden women with bearing and rearing of children.203 Women’s contribution towards the house and child rising is often not taken into consideration. Women can only have a staked claim over their Stridhan, gifts made at the time of marriage and property owned in their name before or during their marriage. There are no legal provisions to deal with this aspect. Since women are the caretaker her chances of having an independent source of income are quite bleak. There is a gendered division of productive and reproductive labour and unequal distribution of land and property with women receiving almost nil or few rights as compared to male.

5.4.2.3

Economic Dependence and Legal Costs

In Sesharathamma v. Manikyamma,204 Sir Henry Maine was quoted to make an important observation about the women and their property rights. It was laid that ‘the degree in which personal immunity and proprietary capacity of women are recognized in a particular state or community is a test of the degree of the advance of its civilization’. Married women have fewer property rights, less property at their disposal and face economic hardship in the separation and divorce situation. Matrimonial discords in a family usually have no adverse repercussions on the husband’s status, rights, residence and job but from a woman’s viewpoint it changes the total scenario. Litigation and enforcing of rights is a time-consuming process and woman is unable and incapable of obtaining relief through Courts. Her dependence on her parents (who may not choose to back her) or some other parental relation is unfortunate. Above the traditional shyness the stark reality of being nowhere once she leaves the matrimonial home makes the women suffer in silence.205 In the Indian social setup a women’s financial dependence on their husband is common. In case a woman possesses assets it benefits her economically and empowers her by increasing bargaining power in the household and better protection against DV. In India, women with secure land rights were eight times less likely

201 Saxena

(ed.) (1993, p. 76). (1993, pp. 110–121). 203 Kumar (2015, p. 502). 204 (1991) 3 S.C.R. 717. 205 Saxena (ed.) (1993, p. 75). 202 Jaising

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to suffer violence at home.206 It reduces their dependence and promotes gender equality. But their financial capacity in the labour market, men get higher-paid jobs in the formal sector and hold managerial positions whereas women are lowly paid and often confined to the informal sector.207 The Economic Survey of India pointed that in 2018 the gender gaps in the Indian labour force participation rate was more than 50%. In 2011, as per the last published National Sample Survey Office (NSSO) survey, the Workforce Participation Rate (proportion of labour force employed) at and all India level was 25.5% for females and 153.3% for males (see Ministry of Statistics & Programme Implementation, Government of India (2012)). The Indian government has actively pursued labour market policies to increase the Female Work/Labourforce Participation (FLWP) rate in India for several decades. Between 2005 and 2012 around 20 million women dropped out of the workforce. Among 131 countries, India ranks 120 in female labour force participation rates and it can boost its growth by 1.5% points to 9% per year if around 50% of women could join the workforce.208 The female participation rate is impacted by social norms and labour laws. The sociocultural, economic factors and the stringent labour laws discourage women.209 Once they take up employment, either they are forced to give it up for their families sake or they remain restricted to less paying jobs.210 Even for employed women their earnings go to the family asset pool. A study conducted on the MGNREGA (Mahatma Gandhi National Rural Employment Guarantee Act) scheme in MP found that approximately 15% or over 13 lakh women of women had MGNREGA linked accounts and wages paid in joint and not individual accounts.211 India is the world’s fastest-growing major economy with GDP growth above 7% p.a. but in 2017 India’s female labour force participation rates fell to its lowest level since Independence (it was 33% in 1972–73; 26% in 1999–00; and 17.5% in 2017–18) despite the considerable increase in female education. It is due to the deep-rooted segregation of gender-specific activities and lack of family support for women that prevent their participation in the workforce.212 Poor facilities in terms of creches, non-flexible work timings, denial of maternity leave and benefits contribute to women’s leaving the workforce. Even the women-centric laws like Factories Act, 1948 and the Maternity Act (Amendment) 2016 appears to be counterproductive as employers are willing to bear the cost and avoid hiring women employees. Further, less than 1% of the government’s budget is allocated for genderrelated policies, showing the paucity of resources available for policy action. Also 206 Panda

and Agarwal (2005, pp. 823–850). (2008, p. 22). 208 Available at: https://www.worldbank.org/en/news/speech/2018/03/17/women-indias-economicgrowth (Accessed on July 13, 2020). 209 Available at: https://www.ideasforindia.in/topics/macroeconomics/why-do-so-few-women-inindia-work.html (Accessed on July 15, 2020). 210 Prashar and Dhanda (eds.) (2008, p. 258). 211 Available at: https://indianexpress.com/article/opinion/columns/women-work-gender-equalityindia-6266947/ (Accessed on Jan 30, 2020). 212 Available at: https://blogs.lse.ac.uk/southasia/2019/10/22/where-are-indias-working-womenthe-fall-and-fall-of-indias-female-labour-participation-rate/ (Accessed on February 01, 2020). 207 Kabeer

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despite the same qualifications, Indian men get 30% more pay than women.213 Indian women’s earnings are only 38% of their male counterpart earnings. On the international gender-related development index, India ranked 127 out of 177 countries. The World Economic Forum’s (WEF) Global Gender Gap Report 2018, India ranked 108th out of 149 countries on the gender gap index.214 The Indian Supreme Court has held that the power conferred by Article 15(3) is ‘wide enough to cover the entire range of state activity including employment under the state’, the Court upheld affirmative action and reservation of jobs for women in public employment, noting that “an important limb of this concept of gender equality is creating job opportunities for women.”215 The decision explains the interplay between Article 15(3) and the Constitution’s other equality guarantees. The Directive Principles of State Policy mentioned in part IV of the Indian Constitution under Article 39 and 42, protects women workers. The special provisions and labour laws protecting and promoting women’s right remains ineffective due to the majority of women confined to the unorganized sector. Also, employed women drop out of the labour market in equally large numbers due to marriage-related obligations and motherhood. Globally around half of the married women falling within the age bracket of 25–54 are in the labour force unlike two-thirds of single women, and 96% of married men. Women remain economically dependent as they do unpaid care and domestic work.216 Women suffer due to patriarchal laws and social setup that makes her dependent and economically disempowerment and secondary status of women in society. Stronger property rights will improve their socio-economic status for which apt legal reform is crucial. The non-earning women face frequent denial of their rights as compared to earning women. Women with independent economic support will escape violent marriages due to increased economic security. It will deter the husband from indulging in violence.217 But for financially dependent women, the complexities of their lives it is difficult to follow the complaint to its logical conclusion through the Courts.

213 Available

at: https://www.business-standard.com/article/current-affairs/despite-same-qualifica tions-indian-men-get-30-more-pay-than-women-118060500107_1.html (Accessed on April 20, 2020). 214 Available at: https://www.livemint.com/money/personal-finance/what-is-gender-pay-gap-andwhy-is-it-so-wide-in-india-11575356633900.html. (Accessed on April 20, 2020). 215 Govt of Andhra Pradesh v. Vijayakumar, A.I.R. 1995 S.C. 1648. 216 United Nations, Progress of the World’s Women Report 2019–2020: Families in a Changing World. Available at: https://www.unwomen.org/en/digital-library/progress-of-the-worlds-women (Accessed on April 20, 2020). 217 Agarwal (1997, pp. 1–51).

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5.4.3 Poor Community Support and Self-sacrificing Womanhood Apart from the economic independence of women that is crucial for giving strength and capacity to fight the costly legal combat support from society is equally important. A large number of incidents of crime against women are reported in the country to which the criminal justice has failed to respond. Rape, torture, molestation, sexual harassment, eve-teasing, stalking and other forms of violence is part of women’s everyday life making. Women feel unsafe in public places limiting their rights and freedom as equal citizens. Despite several legislations, the crime rate against women is increasing; women are unable to exercise their rights due to the prejudices and poor support extended to women by the Indian society. Women are often silent sufferers of crimes committed against them. They are reluctant to approach the legal system or to initiate action against the wrongs committed. The cumbersome grievance redressal mechanism and justice delivery system intimidates the woman victim. Research shows that women don’t perceive Courts as a place they sought a law or a resolution of the dispute, but the place where they went to get material help.218 What is more ironic is that irrespective of the various safeguards they are further victimized and harassed by the enforcement agencies when they approach them for the redressal of their complaints. The predisposed paternalistic attitude with which the women victim is treated at every level of the judicial system installs fear of the system. In case a women survivor of sexual crime who already has a deep sense of guilt and loss of honour and respect of her family approaches the authorities for redressal she faces humiliation. Being a victim she deserves all the support and assistance from her family, society and redressal authorities but she is subjected to embarrassment and disgrace. Resultantly many women who fall prey to sexual crimes prefer to hide them and choose not to report.219 The legal framework and the enforcement mechanism is responsible for the reduced faith and fear of the system among women victims. Again in the context of DV, the patriarchal Indian family system is deeply rooted in our society and makes it evident in every walk of women’s life. Male dominance over females and their superior status make them expect that women will remain under his protection and care. Women learn to be submissive and makes every effort towards sustaining a marriage even though they might be suffering abuse and violence.220 Cases concerning DV are less reported because of the social acceptability of violence, men’s dominance, privacy and sanctity of the family affairs and self-sacrificing womanhood.221 The insecurity associated with being single women makes them continue in an abusive relationship. They will go to any extreme to preserve their relationship as they internalize the patriarchal violence and start thinking that they 218 Banda

(ed.) (2011, p. 130). Anupam in Singh (ed.) (2009, pp. 38–40). 220 Gonsalves (1993). 221 Ahluwalia Anupam in Singh (ed.) (2009, pp. 38–40). 219 Ahluwalia

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are responsible for men hitting them, finding faults in them and ultimately condoning the husband.222 The harassed wives don’t opt for the legal redressal and tend to suffer in silence because since childhood they are socialized to obey their husbands and be mute bearer to abuse and assaults. The parental family is hardly supportive of women who wish to revolt. They are discouraged and made to sacrifice their mental and physical peace in the name of protecting their family honour, the future of their kids and finally their sustenance.223 They are advised and mostly pressurized to maintain their clean societal image of an ideal sacrificing wife. Even the women who complain under Section 498A of IPC generally do so to deter violent husbands and bring them to a negotiating table through the power exerted by the state machinery. Once the man is arrested on the registration of a complaint most women assume that he will be more amenable to negotiating with her. The threat of pursuing the case is the only threat she can hold out to ensure his compliance. When this short-term goal has been achieved woman withdraw the case against her husband.224 Once married, if mistreated young brides may not seek parental help thinking that it is a period of adjustment. After repeated abuse that takes extreme shape she might complain and most parents would probably be reluctant to intercede fearing family disgrace. These arrangements reflect the poor community support, the culture of self-sacrificing womanhood and the generally subordinated, powerless and vulnerable position of women domestic setup in India.225 In these marital arrangements women are extremely vulnerable to victimization, face isolation and have no supportive social networks. They lack the ability to resist aggressive behaviour, they have no means to earn their living and they are entirely dependent on the husband’s family for food and shelter.226 Women are unjustly and unequally treated by society in property and financial matters. Her work is devalued at work and home and gets secondary treatment in inheritance and allied rights. Economic opportunities, public life and power process make her dependent on others.227 Such underpowered woman subjected to DV quietly tolerates everything and when it goes beyond her tolerance she might seek the intervention of family elders. The first suggestion given to them is to try and adjust to the situation and not to give chance for a scolding. Even after this if things don’t improve she might approach the legal system but only after getting a go ahead from her natal family to bears the huge cost of litigation. Also, parents might feel that their obligation to their daughters to have ended at the time of marriage and might be reluctant or unable to support them.228 Even if she reports a crime committed against her, proving it is always a

222 Times

of India (June 30, 2013, p. 4) Why Do Smart, Successful Women Tolerate Abuse? and Sharma (2009, p. 83). 224 Mukhopadhyay (1998, p. 179). 225 Sharma (2006, p. 190). 226 Sharma (2006, p. 197). 227 Iyer (1993, p. 9). 228 Ramachandrappa (2012). 223 Patel

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difficult task. Ineffectiveness, inaccessibility, and lethargy of law enforcement officers, health care practitioners, a mismatch between the guidelines for proving a crime and the private and often ‘invisible’ nature of intimate abuse are some of the reasons that make it difficult for women to prove the DV.229 Thus, the economic dependence of women on men forces them to tolerate DV which is pervasive, widely justified, and acceptable. Limited options are available to women suffering violence the most viable being to tolerate it silently despite their legal rights and measures.230 There are various reasons given by women—good or bad, most women allow relationships to define them. A lot of women are scared of being alone. Some even get their sense of worth from being in a relationship. Women don’t want to let go of the man security the man provides. She will not admit to the world that she is under emotional or physical duress at home and that her success hasn’t empowered her. We live in a society where a married woman no matter how battered is better than a single woman.231 Often wife-beating and torture are regarded as a matter of misunderstanding in the conjugal relationship which can be sorted through reconciliation (invariably the wife’s acceptance of the humiliation, torture and beating). Besides when the violence takes place within the homes the abuse is effectively condoned by the tacit silence and passively by the state and the law-enforcing machinery.232 Woman has no place to go for help; no support structure helps her escape from her sad situation created by her abusive and violent husband. Despite constant cruelty they tolerate everything and may even plead to let her remain in house and marriage. Women are unaware of their legal rights and provisions. The inadequate laws and overburdened judiciary only further contribute to the helplessness and frustration of victimized women.233 The legal framework and the enforcement mechanism somewhere is responsible for low reporting. Several reported incidents speak about the atrocities committed by the police on the women in their custody. Many times the victims of these crimes are subjected to further harassment and humiliation by the police. Not only this, several reported incidents are speaking about the atrocities committed by the police on the women in their custody and victim of crime subjected to further harassment and humiliation (see NCRB data). Though the government took steps to deal with these security issues concerning women and a one-third quota for women police officers was introduced to promote more gender-sensitive policing to better respond to high rates of sexual violence. It will also instil confidence among women to enable them to approach the police without hesitation for seeking protection and assistance as and when required.234 Women facing violence hardly have any support system as their paternal family and relatives often refuse to interfere and accept them back. 229 Domestic

Violence in India—A Summary Report of Four Records Studies (2000, p. 38). Times (February 11, 2013, p. 12) Bruised Behind the Closed Doors (New Delhi). 231 Jeyaseelan et al. (2007, pp. 660–64). 232 Singh Devinder and Kumar Dinesh in Singh (ed.) (2009, p. 57). 233 Saxena (2001, p. 51). 234 Available at: https://www.theguardian.com/world/2015/mar/20/india-one-third-of-delhi-policewomen (Accessed on June 23, 2020). 230 Hindustan

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Women have minimal knowledge about the legal provision enacted for their rights, safety and security. Even if they muster the courage to voice their dissent and wish to seek redress through the laws, they are discouraged and counselled to keep the family respect blameless.235

5.5 Conclusion The chapter analysed the factors that are responsible for the reinforcement of the subordinate status of women, viz. patriarchal social structure, gender stereotypes, socialization, role assignment, etc. It focused on the effect of religion and media on discriminatory personal laws and stereotype practices. A critique of the concept of gender justice was presented to bring out that woman suffers oppressions in every setting. The evolution of various rights of women seems to be a remedy against all maladies but the reality is different. The beneficial legislation enacted for women is not able to make the desired changes. The phenomenon like patriarchal social structure, anta-property, poor girl education, child marriage, poor socio-economic status of women, and political rights and inequalities impedes their realization which is discouraging. Because of meagre representation of women issues at the policy framing level and ignorance of the law, they often become the victim of cruelty and access to justice. Some structural and cultural changes are introduced that have resulted in a certain degree of equality of opportunities in the areas of education, employment but women face injustice due to the gendered relations and economic inequities. The chapter examined various ethical, legal, professional, structural, financial issues concerning women that strongly affect their access to justice. The majority of women facing matrimonial litigation are economically marginalized and have poor literacy rates and few property rights, their work is considered to be non-productive and non-remunerable, and they face violence, lack of family, and community support. Considering her as a financial burden, parents usually disown and pressurize her to remain within the marriage. Since a woman devotes substantially more time towards bearing and caring for children, it restricts her educational and occupational opportunities as well as financial independence. Lack of education and poor financial opportunities forces women to remain in abusive relationships. The scenario of economic disparity in marriage continues due to varied factors. Concerning matrimonial property, the Indian laws are far from satisfactory. Economic emancipation is an important part of the social emancipation of a woman. A woman having an independent economic existence will not be susceptible to social oppression with that amount of ease as she will access justice for wrongs committed against her.

235 Khan

(2006, pp. 331–332).

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Chapter 6

Understanding Attitude and Asymmetries, Final or Fair Settlements and Quest for Gender Justice Through ADR: Some Dilemmas

Indian woman is the disadvantaged group, holding subordinate position, and has been victims of tyranny directed by men with whom they under the constitution enjoy equal status.1 Women face discrimination from the society that limits their capacity to stand against wrongs. They face inequality under laws while accessing justice through traditional modes and in ADR mechanisms.2 Women’s ability to access justice delivery mechanisms is limited by economic factors (financial dependence, corruption), social and psychological reasons (stigma, restrictions on mobility, time constraints, inability to comprehend legal language), and educational restrictions (limited education, limited access to information, and poor social networks). Women face difficulty in accessing the law and obtaining rights through them. Further, the discriminatory legal provisions dealing with every sphere of women’s life—labour, family, property, and personal laws—hinder their access to justice. Furthermore, even in the ADR process, biases and lack of gender sensitivity among the justice administrators control the possibility of obtaining fair and equitable remedy.

6.1 Key Challenges to ADR in Focus Almost every country in the world is facing the problem of pendency of cases. The idea of ADR was envisioned to increase access to justice for women facing matrimonial conflicts. Matrimonial disputes shake the family setup and exert a negative impact on society. The separating parties experience varied emotions, sadness, regret, insecurity, bitterness, anger, blame, and a desire for retribution. To ensure healthy divorces, it is required that parties must be able to put those negative feelings aside and resolve their disputes. When the disputes relating to custody of the child, maintenance etc. are taken up by the FC, and if found to be pre-eminently fit, they must be 1 Prem

Chand and Another v. State of Haryana, 1989 Supp. (1) SCC 286. (1996).

2 Carrie

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8_6

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referred to mediation centres. Sec 9 of the FCA enjoins upon the FC to make efforts to settle the matrimonial disputes through the assistance of the counsellors. Even if the counsellors fail in their efforts, the FC should direct the parties to mediation centres where trained mediators are appointed to mediate between the parties. Directions are now issued for the Courts on dealing with matrimonial matters.3 The battered women often find it extremely hard to sustain the pressure of running around for arranging finances for the litigation, access support, and legal representation. Both social and institutional barriers inhibit women’s access to justice. Social barriers include the lack of knowledge of their rights, illiteracy, lack of information, and dependence on male relatives for assistance and resources. Institutional barriers such as geographical distance, suitable facilities, infrastructure, and language have to be taken into account to ensure access to justice for rural, minority, or indigenous women or women with disabilities.4 To deal with these barriers and for healthy divorces, the concept of ADR offers many advantages and facilitates women cause. While resolving the disputes through counselling or mediation, the parties enter into negotiations for finding acceptable solutions that will take care of the interest of both parties. As problem-solving involves more than one person, the chosen solution must satisfy the participants of the dispute.5 Despite the evidence supporting the success of ADR as a way to settle marital disputes, it has its share of criticism. They provide smooth justice, but several factors impinge and affect their quality. The efficacy of ADR for resolving matrimonial disputes is dependent on issues (ethical, legal, professional, structural, financial, and infrastructural), societal biases, and patriarchal approaches against women while seeking justice. The factors impacting counselling and mediation are assessed in this section.

6.1.1 Factors Affecting Court-Annexed Counselling Process To begin with, counselling is an effective way to resolve disputes among parties with a minimum of legal interference and through informal guidance. Every family and a group try to manage their conflicts, especially matrimonial disputes, before it comes within the public domain. The elders, caring seniors, and authoritative heads of a family mediate and counsel both the parties. Today, counselling is provided in a more professional setting in which party can approach qualified counsellors to take benefits from their interventions. Counselling can be understood as a form of guided social interaction through which the clients are helped in acquiring the flexibility to meet the difficult situation and a rough spot.6 Counselling consists of confidential interviews which provide an opportunity to talk over questions or problems with a well-trained and understanding person. The client and the marriage counsellor share 3 K.

Srinivas Rao v. D.A. Deepa, AIR 2013 SC 2176. of the World’s Women (2011–2012, pp. 52–55). 5 Haynes and Charlesworth (1996, p. 1). 6 Fonesca (1966, p. 225). 4 Progress

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views in facilitating a better understanding of self and the relationship.7 Matrimonial counselling may be defined as the process through which a professionally trained counsellor assists a person (s) to resolve the problem that troubles them in their interpersonal relationships. The focus is on the relationship between the two persons in the marriage.8 During the process, professional skills are employed to probe the facts and identify the real cause of disputes. They help explore the possibilities of reconciliation or divorce, bring the parties to an agreed solution and shape the solution in the legal formats with patience and active listening.9 There can be various factors that can affect the court-annexed counselling process provided by the FC. Some of the key obstructions to the counselling process are as under:

6.1.1.1

Obstruction Due to Critical Stakeholders of Counselling and Problems Faced by Women

Judges To begin with the FC ought not to become another Court. The judges drawn from the judicial service at times make the process more formal and procedure bound. They can obstruct the smooth speedy dispensation of justice by following rigid procedures. The FC, as a tribunal, needs to make innovations in its procedure to make them speedy. Further research and periodical orientation programmes for the FC judges must be conducted to constantly develop the capacity for following simplified and womenfriendly procedures with the training module coinciding with these objectives. The patriarchal decision is anathema to womens’ legal rights Counsellors • Marriage counselling is an art as it requires a high level of skill to bring about acceptable results. It is a complex activity because it involves complex human feelings.10 The role of counsellors becomes crucial while dealing with issues relating to battered women. For him, the right course of action for a marriage counsellor is to diagnose the problem among the parties and then decides if he should attempt reconciliation. If after the appraisal of every fact relating to the case, in his wisdom, the separation between parties will be the right course of action, then he should guide the parties accordingly. The counselling process may end in one sitting or might take a little longer. During the entire process, the counsellor is expected to address important issues surrounding the marriage and the battered woman. • The counsellor needs to provide an effective solution to the emotional pressures and counselees needs. Counselee may need understanding, wish to share a guilty secret, and may need acceptance. There may be a loss of perspective and 7 Aron

(1968, pp. 5–6). and Stone (1958, p. 59). 9 Herbert and Jarvis (1959, p. 21). 10 Wadhwa in Sehgal and Sherjung (1997, p. 1). 8 Mudd

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an inability to see any way out of her problems. A woman may want to clarify her responsibilities regarding matters which trouble her.11 The personality of the counsellor and his role in this complete process is vital. It needs to be remembered that the counsellor will be less effective if during the session woman is not given sufficient opportunity to speak when it is necessary.12 If the counsellor does so, he will be unable to establish a relationship with the client, i.e. there is a lack of interest, warmth, and the attempt at understanding from the counsellor, and the client will seldom feel capable of talking about things bothering them or what they feel.13 • The next troubling aspect is concerning the outcome of counselling. The counsellor should regard the possibility of legal action by one spouse against the other. Counselling will be ineffective if the reconciliation is only temporary. If the batterer has legally deserted his wife, any attempt at reconciliation should be undertaken with the knowledge that by agreeing to such reconciliation, he is trying to postpone the action by Courts action. This is one of the many dilemmas that the counsellor should solve, especially if he feels that the reconciliation may prove only temporary.14 • Thus, the role of a marriage counsellor is crucial to make this mechanism effective. He should control his emotions, give up preconceived ideas, and be emphatic.15 To be effective, he must have the knowledge and appreciation of social customs, religious sentiments, an insight into the psychology of the estranged people, the rights and liabilities of the parties in the socio-economic context and knowledge as well as sensitivity to meet the need of the client.16 The marriage counsellor is seldom aware of the socio-economic conditions of the parties and thus cannot do justice to the weaker party. The counsellor might not know the exact family equation of the counselee with his family. The problem in marriage might be due to the third party and maybe a family member who is a spoiler.17 Parties The challenge may come from the parties side. It is opined by FC judges and mediators that parties may formally express their willingness to participate in the process but keep their reservations.18 Parties tend to return to regular Courts of law by raising doubt about the ADR process. People still tend to repose faith in the judiciary. People still think that the Courts are the most viable option. Thus, the non-cooperative party can sabotage the ADR processes leading to trial de novo. There can be a lack of trust among parties. They may practise delaying tactics if they have the intention to harass the other party or where parties are keen on fighting a legal battle at all costs. 11 Cavanagh

(1963, p. 8). and Jarvis (1959, p. 80). 13 Herbert and Jarvis (1959, p. 55). 14 Herbert and Jarvis (1959, p. 128). 15 Fonesca (1966, p. 228). 16 Goel (1997, p. 28). 17 Goel (2005, p. 30). 18 Sharma (1997, p. 28). 12 Herbert

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Difficulties Faced by Women • The feminist often doubts the repercussion of the ‘in-camera proceedings’ or privatization of women issues. It is argued that such guarded proceedings will be more harmful to women in the longer run. The open Courts convened in full public view are believed to deter the Court from making anti-women and conservative remarks and while making a judgement. Confidentiality is important but it must not shift the focus from legality to welfarism that could subdue the women issues.19 • Moreover, legal advice is sought in separation and divorce by women as they are ill-equipped to manage their negotiations. Legal advisers frequently negotiate with each other and arrive at a basis for settlement which they then recommend to their respective clients. A great many divorce settlements are reached in this way.20 More injustice would be done to women, a vast majority of whom are illiterate. They will not be able to comprehend the negative implications of allegations against them and unable to defend themselves. • Too much stress on the preservation of the institution of the marriage is bad as once the matter is filed in the regular Court, the parties no longer are in the frame of mind to reconcile and settle their disputes. The real need is to provide adequate and specialized counselling services at that time.21 The counsellor must remain neutral and objective throughout the counselling process. He should neither pass judgements nor allow irresponsible allegations but must encourage the client to express himself more fully.22 It is required that people committed to achieving gender justice and those sensitive towards these phenomena should be appointed as against people committed to preserving the marriage for women and children’s sake. This will be more damaging to children when parents fight every day and they witness these episodes of abuse and battering. The matrimonial dispute is a situation that requires an altogether different sort of handling of women’s economic and life security with their dignity kept prime.23 Laws and procedures concerning matrimonial issues should mitigate disequilibrium inherent in marriage relationships by creating new obligations or modifying old ones. The FC should be free from subconscious pressures of preconceived notions and should adopt a realistic rational and pragmatic approach.24 • Further, due to peculiar Indian customs and another host of situations, there exists a strong power asymmetry between husband and wife. In these marriages, the burden of adjustment falls primarily on the wife and compromise proves to be a gender-linked virtue. Thus, stress on the preservation of marriage and emphasis on conciliation works against women interest who are often pressurized to reconcile. She might agree to a settlement in which a husband is granted a considerable 19 Chawla

(2006, p. 124). S. Padukone v. Principal Judge, Family Court, Bangalore, 1999 Kant 427. 21 Bakshi (1993, p. 34). 22 Wallis (1968, p. 34). 23 Flavia (1996, p. 287). 24 Flavia (1996, p. 286). 20 Komal

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margin than what he should ideally have been through the regular Court. This is because in the majority of cases, she is not well educated and vocal about her dignity and honour.25 Women might be pressurized into settling for outcomes that may be grossly unfair and contrary to their best interests. For example, women might give up their financial claims instead of child custody.26 • Women are regularly encouraged to withdraw criminal charges they may have filed against their husbands for property, maintenance, or custody27 demands. They may even resume living with men who may have subjected them to longstanding abuse in the past. As rightly put by Basu, the legal discourse of right is thus transferred into the discourse of welfare whose defining terms are set, not by the women herself, but by the counsellor, their advocate, the judge, and by the realities imposed by the society within which they live.28 The delicate divorce and family disputes involve emotional aspects and thus a high probability of manipulation. In a court-annexed mediation and counselling programme, the Court keeps control of these process through various check and balances. In every case referred to these centres and to check the risk of coercion even a consent order among parties undergoes Court approval.29 6.1.1.2

Other Issues Related to FC and Counselling Process

Overemphasis on Reconciliation In India, the Family Courts Act 1984 provides for the mechanism of counselling whereby the court-appointed counsellor tries to bring about reconciliation between the litigating parties to the matrimonial dispute. The FC is away from the hostile intimidating atmosphere of the Courts. They are less time consuming and avoid antiwoman interpretations. However, as per the objectives of the Act, much stress is laid on the reconciliation and settlement of the dispute between the spouses. This overemphasis on the commitment to preserve the institution of marriage and compromise seems alluring but is criticized as a regressive approach. Too much stress on reconciliation among parties is the first important factor that impacts the effectiveness of the counselling process. The objective of ‘speedy settlement’ and ‘protect and preserve’ the family may lead to bias and sidelining of gender justice. Focus on the preservation of marriage without any developed framework will end up defeating gender justice concerns. Unchanged Substantive Laws The absence of requisite changes in substantive laws is also a factor that affects counselling. The FCA is not a self-contained Act, and it has to be read along with other applicable laws. The jurisdiction of the FCA extends to the problems that arise due to 25 Basu

(2001, p. 230). (2001, p. 231). 27 Fineman (1988, pp. 725–730). 28 Basu (2001, p. 232). 29 Bevan (1992, p. 16). 26 Basu

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the breakdown of a marriage, divorce, restitution of conjugal rights, maintenance, and child custody disputes, but it does not in any way alter the substantive laws relating to these issues. For example, the residence right is provided under the DVA, and maintenance is claimed under CrPC and the personal laws. Unless the corresponding and adequate changes are made in the substantive laws regulating women’s rights and claims, the FC and counselling will be unable to tap their full potential towards providing effective relief to women. They will be a poor substitute for a regular Court. Parameter of ‘Success’ and ‘Failure’ A second important factor that obstructs the effectiveness of counselling is the general assumption that a conciliation process is a success if on process completion the parties agree to live together as husband and wife else it a failure. To clarify, it means that if, after the completion of the counselling process, the couple decides to stay together, it is a ‘success’, and if they decide to part ways, it is a ‘failure’. Though there is a gradual shift in this notion of success, it remains the larger goal. It must not be forgotten that though the FCA largely intends to keep every marriage secure, it has another dimension or a superior goal that is to back the parties to satisfactorily deal with their impending litigation and post-divorce defrayals. Also, by too much stress and insistence on adjustment and reconciliation, it will only contribute to further pain and miseries of the parties. It will probably create a situation wherein a woman will be taken advantage of in her weak position. Besides, there might be a situation in which one of the married couples finds the relationship to be meaningless and wishes to end it. This picture may be further complicated by the presence of children. Solely committing to the values of marriage and the family, he is apt to violate the integrity of the individual wishing to get out of the marriage.30 Infrastructural Issues For the effectiveness of any counselling session, the surroundings are equally important. An uncomfortable, unhealthy, unhygienic, and non-peaceful setting owing to poor infrastructure impacts the entire process. The infrastructure of the counselling centres in Delhi is unhealthy, unhygienic, and chaotic. Follow-ups In the current scheme of ADR practice, there is no concept of follow-ups missing in the current counselling practices. Limited follow-ups are usually conducted through telephonic conversations, and there are no guidelines about the duration and frequency of these calls. Much depends on the personal commitment and passion towards their role as marriage counsellors. To make the court-annexed counselling process more effective, this facility needs to be necessarily provided to gauge the progress of the process. Attaching Non-officials Additionally, at present, the Act seems to give predominance to officials as counsellors under section 6 and section 23 (2) (b). Section 5, 12 and 23 (2) (c) of the Act does 30 Ard

and Ard (1969, p. 67).

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not rule out non-official counsellors but their active association with FC is limited. The city civil Court, Mumbai took a commendable initiative in this regard that was quite successful and recommended elsewhere.31 With the idea of ensuring gender justice, the FCA provides for the appointment of women judges (Section 4) and other functionaries like psychologists, social workers or social welfare organizations and medical expert. Virtually, the situation continues to be grim. Limited Numbers of FC The next issue relates to the number of FC constituted in the country. Although the FCA requires the state government to create them for every area whose population exceeds one million, they were established only at a few places. There is no logical reason for restricting them to only a few cities, thus restricting womens’ access to them. The state government should establish FC in every district for easy accessibility of women and not as mere tokenism. Lack of Uniformity in Rules and Procedures The next issue concerning counselling is the lack of uniformity in rules and procedures. The Central Government merely prescribes the requisite qualification for the judges of the FC and has no predominant role in its administration. The Act permits the FC to lay down its procedures. This means that there will be an element of individual approach in each FC that will differ from one judge to another and the approach adopted in one case may differ from the approach to be adopted by him in another case. Section 10(3) allows the personality of the judge to its full play as reasonable elasticity is the hallmark of the procedure contemplated by the section.32 But the imperative need for a set of uniform rules to govern the FC cannot be denied. Jurisdiction of FC • Besides, there is still confusion in the nature and scope of the jurisdiction of the Court. According to the Andhra Pradesh HC, any dispute arising between parties to a marriage irrespective of their caste and creed could be brought before FC for getting them right decreed.33 The term ‘application’ under section 3 of the MWPRD Act includes claim made by Muslim women in the FC.34 But the Court plays a limited role in the administration of Muslim personal law as only very few reach Courts due to the availability for Muslims of extrajudicial divorces.35 The FC cannot grant an injunction to prevent DV and punish for its contempt. They should be granted additional investigative and decision-making powers with the increased scope of jurisdiction. It should cover every form of domestic and non-domestic issues related to women. 31 Bakshi

(1991, p. 17). (1993, p. 38). 33 Reddy Anand Rao v. Thota Vani Sujatha & others, 2003(1) Andh LT77. 34 Anjum Hasan Siddique v. Salma, 131 (1992)1CPC 467. 35 Basu (2001, p. 239). 32 Bakshi

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• Apart from this most basic factor or impediment that impacts the counselling process especially related to women participants, there are a host of other explanations that are an interruption to counselling. Some other related factors affecting counselling that need consideration relate to the absence of proper monitoring and review of FC, poor budget allocation, and long due vacancies.

6.1.2 Factors Affecting Court-Annexed Mediation Process For long mediation has existed in every society and matrimonial disputes are mediated by elders and the immediate family members available to the parties. Matrimonial mediation facilitates the resolution of family disputes to maintain harmony in society. The process helps the parties to deal with intense conflicts that tend to generate misunderstanding and suspicion. Mediation has achieved phenomenal success worldwide and had already emerged as the most viable alternative to the long tiring, economically unfeasible judicial process. In family mediation, mediators use a larger degree of therapeutic counselling style with a focus on the relationships. But still, there are grey areas that affect the outcome of mediation. These pitfalls in mediation practice need to be addressed. These obstructions can be viewed from two different perspectives.

6.1.2.1

Obstruction Due to Critical Stakeholders and Problems Faced by Women

ADR evolved despite resistance from the Bar. ADR is yet to establish its ground in the Indian stakeholder’s minds. The unfamiliarity of the process among a significant portion of the people and legal fraternity regarding the benefits of these methods, mostly among the lower Courts, leads to mistrust. The obstacle is created by the ‘critical actors’ of the mediation process, and challenges are faced by the mediation process that could be either psychological impediments or impasse.36 Thus, ‘negative resistance among critical actors’ is a major impediment to the mediation process. The judges might see mediation as a process that undermines their authority. Lawyers might fear that they stand to lose out on the number of cases they could have handled and a consequent drop in earnings. Even the litigants may fear exploitation, distrust, insecurity about making a decision and may be interested in litigation.37 Mediators • Among others for mediation success, the selection of an appropriate mediator is crucial. The mediator who is a neutral and unbiased person assists the parties in their negotiations to find a consensual resolution of the dispute that maximizes 36 Sinha

(2006, pp. 40–47). (2004, p. 50).

37 Chodosh

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all parties’ interests.38 The mediator may adopt either a facilitative or evaluative approach to facilitate and encourage parties to open up about their interests and priorities (in a facilitative role he tries to enhance communication among the spouses, whereas in an evaluative role, he guides the parties).39 Through this, he gets an opportunity to locate the points of difference and the area of controversy or dispute. He may then help the parties to bridge the gap between them and resolve their conflicts.40 The clients want a sense of understanding from the mediator and that their fears and anxieties before they are ready to focus on the future. Parties can talk directly and address their grievances through the mediation process with the mediator having an awareness that it is difficult for parties to let go of these feelings.41 • A mediator should possess these qualities to do the balancing act by managing the power imbalances and tensions which threatens the process both internally and externally.42 Apart from lack of training and technique about the mediation process, the personality of a mediator can lead to its failure.43 Practically, since the mediators are paid on the final settlements and not per hearing, mediation might be viewed as a time consuming or time waste exercise. Such busy mediators may rush into the mediation process that may lead to its failure and dissatisfaction among parties. There is a tendency to pressure parties to settle the case. Due to work pressure and large pendency’s, counsellors and mediators do not give proper time to the reconciliation and negotiations. Even though confidentiality and privacy need to be observed, but in case of time constraint, parties are made to sit in the same room and the other parties hear the proceedings. • The thought process of the mediator might be influenced by bias unless he gives importance to the self-esteem of the disputant and stresses self-determination. The dialogue could become a monologue, and the agreement will not carry with it the guarantee of workability. The mediators should provide for a non-invasive approach to the resolution of the dispute.44 Advocates There are cases wherein the resistance by lawyers proves an obstacle to resolution.45 There is reluctance among advocates to settle cases through mediation as they believe that they might lose revenues from their client if the case is settled.46 Legal advisers are sceptical of mediation and reluctant to advise clients about the benefits of these processes. There is a general perception of losing work by sending their clients to this 38 Goldsmith

et al. (2006, p. xix). (1996). 40 Singh (2009, p. 533). 41 Bautz (1988, pp. 57–58). 42 Parkinson (1997, p. 402). 43 Perry (1994, pp. 317–324). 44 Ramnathan (2012, pp. 3–4). 45 Sinha (2006, p. 35). 46 Raveendran (2010, p. 12). 39 Riskin

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process. The mediation process is mistrusted thinking that the legal process is best to get beneficial entitlements for their client.47 Some advocates, not only in India but across countries indulge in what is known as champerty under the common law. To date, this sort of third party funding remains a contentious issue. As per Black Law Dictionary (9th ed. 2009), Champerty is an agreement to divide litigation proceeds between the owner of the litigated claim and a party. According to the People’s Law Dictionary (2005), A person unrelated to the lawsuit supports or helps enforce the litigant’s claim as consideration for receiving part of any judgment proceeds. This sort of agreement between the party suing in a lawsuit (plaintiff) and another person, usually an attorney, who agrees to finance and carry the lawsuit in return for a percentage of the recovery (money won and paid.) is regarded as malpractice under the legal ethics. Parties • Even parties have limited faith in the mediation process. ADR is consensual and non-binding despite a good remedy party still relies on the regular Courts of law by raising doubt about the ADR procedure. Since the process is voluntary, parties may put an end to the ADR process anytime wasting the time, effort, and money that may have been invested by the other party. Sometimes, ADR is used as a strategy to know the strength and weakness of the opposite parties, and the weak parties might prefer ADR to litigation to secure a settlement that may reflect the merits. They can use ADR as a delaying tactic for preventing the opposite party from asserting their rights in Court. People still think that Courts are a better way and a preferable mean of obtaining relief from the Court or to know the opponent’s defence and merits of his case. • The cultural challenges also play an important role in the possibility of cases being settled. The psychological barrier to the commitment to resolve the dispute by the disputant to a successful mediation hampers the process. There can be a misunderstanding between the parties or they might reel under negative assumptions about each other. In case parties are adamant on a judicial determination, everything will fail. Where one party wanted to delay the proceedings, where parties lacked authority or where parties distrusted the mediator’s authority to enforce a solution can affect the entire process. The litigant’s perception that settlement means adjustment and giving up a part of their rights, claims, and concession to the other party makes them resistant to any suggestion of mediation. There is no incentive for litigants to settle their dispute unlike the USA, UK, and Australia where the losing party will have to bear and pay the actual costs to the succeeding party.48 Difficulties Faced by Women The non-uniformity in the awareness and the educational level among women and a common economic dependence has led to a failure of the mediation and counselling 47 Parkinson

(1997, p. 32). (2010, p. 12).

48 Raveendran

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process especially in the under-developed and developing sectors of the society.49 In the case of matrimonial disputes, the mediation is inappropriate for couples who have had an intractable dispute, history of DV, alcohol or drug dependency, psychopathology, or extreme power imbalances. Some feminists argue that mediation reinforces differences in power that existed before the relationship broke down and thus disadvantages women.50 A careful assessment should be made to know the extent to which these factors would impair the negotiation process and the couple’s ability for constructive communication.51 In cases of severe power imbalances, DV the victim of violence must give informed consent to mediation. The mediator should address DV-threatening behaviour, lack of communication and trust, alcohol or drug abuse. Gender inequality reinforces the unequal bargaining power between divorcing parties. Women in such situations are powerless and thus will be unable to negotiate fair settlement agreements.52 Lack of Training The major difficulty with the mediation process is in the context of the training of referral judges, the non-availability of suitable trainers, and the lack of wellestablished infrastructure for training trainers, i.e. a training centre.53 This lack of training and core competency in India brings in coercive, commanding, and threatening techniques in the process. Therefore, it is necessary that a minimum basic training is imparted to the judges, mediators to best utilize their expertise, experience, skill, and services.54 Proper training has a strong impact on the process of mediation, the intensity of the dispute, the degree of conflict, and how well parties can communicate, parties capacity to discuss matters rationally, and cooperate with one another.55

6.1.2.2

Other Issues Related to Mediation Process

Unsuitability of Mediation in Certain Cases • The mediation process is a voluntary, non-binding, and confidential negotiation process. The civil cases and criminal disputes that are non-compoundable can be mediated. Certain cases in which mediation might be appropriate are those where parties want to control the outcome,56 if the communication between parties is broken or if the parties perceive that they will benefit in terms of time and 49 Patel

and Sharma (2009, p. 82). (1994, p. 48). 51 Bordow and Gibson (1994, p. 98). 52 Patel and Sharma (2009, p. 86); Carrie (1996). 53 Report of the Third National Conference on Mediation (2012, p. 9) Vigyan Bhawan, New Delhi (7th and 8th July). 54 Patel and Sharma (2009, p. 85). 55 Bordow and Gibson (1994, p. 103). 56 Fisher et al. (1991, pp. 177–187). 50 Emery

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money. The intrinsic unsuitability of mediation is yet again a factor impacting mediation. Some of these cases unsuitable for reference to mediation relates to a situation when parties wish the Court to determine issues of law or its construction wrt. ongoing long-term contract. The persistent controversies relating to cases in which a point of law is involved and demands a binding precedent is also unsuitable for mediation. Besides, if it is a case of fraud or if the injunction and other relief is essential to protect the position of a party are found to be unsuitable for reference to mediation. 57 • Not every dispute is suitable and amenable for reference to mediation. The method is not fit to resolve multi-party disputes in which some of the parties do not participate. As ADR like mediation concerns only the parties to a dispute, the excluded or inadequately represented third party having an interest in the subject matter of the dispute may raise a future challenge. • It has been regularly observed that during these processes, parties usually keep their stakes high. They will be unwilling to forgo a part of their claims, and such a mindset may ultimately fail the process. Above all, the impediment of power imbalances, especially in the case of matrimonial disputes, hinders free communication and discussion of issues among parties. In an ideal adversary system, the adversaries are contemplated as having an equal skill and economic support, and the results are independent of the resources or ‘skill’ of the argument’s representative, but on the merits of the argument.58 In the case of ADR if parties have unequal negotiation power, weaker parties may perceive the process as inequitable and disadvantageous. Problems with Mediation Process • Besides, the mediation process is not bound by the rules of a formal proceeding, so the parties can bring up whatever concerns them most. The mediation process can be used to make a realistic assessment of the parties’ position. But the absence of formalized procedures and non-following of evidentiary rules peculiar to trial may permit the mediator to be biased and coerce a party. The absence of an appeal process after the discovery of fraud and non-recording of details during the confidential process can affect the process.59 The settlement of a mediator in a court-annexed programme is not final till validated by the Court; thus, his settlement is not an award.60 • Timings of the mediation process are also critical to its success. In the case of premature mediation, it might not result in the expected results. The other issue in the mediation practice is concerning the insufficiency of use of the process and the poor administration of the centre.61 The comfortable areas where parties 57 Sridhar

(2011, p. xx). (1996). 59 Sinha (2006, pp. 36–37). 60 Pravinchandra v. Meghji, (1998) 2 Raj 273 (Guj). 61 Ramnathan (2012, p. 9). 58 Carrie

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can meet and discuss things privately with the mediator are generally lacking. Their neutrality and impartiality are indispensable constituents of the mediation process. These two impediments are discussed later in this chapter. Lack of Awareness The issue of the general public awareness about the mediation practice is still low. The expertise and practice of utilizing mediation for settling financial and property issues are not very well developed. Lastly, any sort of behavioural issue of the party and mediator might interrupt the process. Once these issues are dealt with, the mediation will help even if the parties decide to go in for a trial. The communication established during the ADR process and the clarification achieved among parties about the nature of the dispute will make the trial proceedings more proficient.62 Above all, if during the ADR process any of the adversarial value will creep in or a vulnerable party is subordinated due to prejudice, it will hamper the quality of success.63

6.2 Apathetic Attitudes Towards Distressed Women In addition to the factors and barrier discussed above, additionally, women seeking recourse to law for accessing their rights face gender inequities, a sense of powerlessness, discrimination, bias, and vulnerability from the adjudicatory legal system, legal agencies, and the ADR processes. The presence of gendered inequalities in the society that were discussed in Chap. 5 perpetuates poor access to justice for women. Lack of legal literacy, insensitive, and male-dominated enforcement agencies and judiciary continues to act as major impediments to women’s access to justice. Complexities of law and procedures build an inherent bias against women who negate their various rights. The effect of patriarchy, paternalistic attitudes, and gender role ideologies gets reflected in the form of the lack of sensitive redressal of disputes and indifferent and hostile attitude towards distressed women. The discriminatory laws and biased interpretations permeate each level of judiciary and law enforcement agencies. It tacitly promotes apathetic attitudes making women fear the entire redressal system. The authorities need to sensitively redress the women-related disputes, and for this patriarchal, attitudinal bias and paternalistic attitudes must be disregarded. Women by and large fear the legal redressal system and face prejudices and gender ideologies expectations when they show courage to stand against the abuse and violence. In this scenario, the law enforcing agencies need to support the battered woman. They need to realize that beyond the ideal women role expectations, there can be a situation of irreconcilable, irretrievable temperamental differences requiring sensitive redress with a prime focus on the legal rights of women. This section highlights these varied factors that require consideration for minimizing their jeopardizing consequences for the battered women who is a weaker party. 62 Kaur

(2008, p. 30). (1996).

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6.2.1 Paternalistic Attitudes and Neutrality The ADR practitioner has the power and ability to control the entire process. Acting upon his wisdom he decides the entire course of the process from beginning till end. During this entire time, the possibility of his developing liking towards one party is natural. The feminists are concerned with this aspect apprehending that this type of unhindered and unrestricted power can work against the interest of the battered women. They might be oblivious to the fact that they are giving paternalistic suggestion, and there could be biasness against the batterer, or in case, he is taking a neutral stand how effective it will be to bring out a just outcome for the women. Patriarchy is a system of social structures and practices, in which men dominate, oppress, and exploit women.64 Judiciary has tried to protect and empower women by giving a beneficial interpretation to every woman right and favouring laws. With its plethora of landmark judgments, it is filling the gaps that hamper the realization of women’s rights. But paternalistic attitudes are faced by women who have to become involved in the legal process. Paternalism implies attitudes based on a view of women as inherently weak and vulnerable and consequently in need of lifelong material and symbolic support and protection from the men who may be father, brother, husband, son, or others close male. The judicial system attempts to exert paternal control over women’s life choices. Those responsible for dispensing justice reel under the presumptions of an ideal mould of good women and what role they ought to perform or are capable of performing within their families and in society at large. These assumptions predispose law enforcers and ADR practitioners to take a paternalistic approach towards the needs of the women who come before them.65 Those responsible for administering personal laws tend to believe, just like most Indian that the proper place for an adult woman is within a marital relationship. They are inclined to consider it preferable; whatever may be the quality of that relationship.66 Fears related to the stigma of divorce combined with its material consequences raise rhetorical questions concerning women. It is believed that to ‘save’ women, their marriage needs to be primarily saved for which the lawyers, court-appointed social workers, and judges make ample use of delays, an attempt at mediation, and pressures to reach a compromise.67 The attitude of judges, lawyers, and police officers reflects paternalism and male chauvinism. There is ample evidence to prove that women are impatient with the counselling process. They resent the time and money spent to come to Court month after month, sitting for hours. They often distrust the intentions of the police, lawyers, judges, and other staff who hold such power over their lives.68 Even the judicial decisions fail to take women’s experiences and concerns into account. The normative law may reflect all progressive ideas, but social practice and attitude continue to be patriarchal. The judicial attitude is not always favourable 64 Walby

(1990, p. 16). (2001, p. 26). 66 See Footnote 65. 67 Basu (2001, p. 228). 68 Basu (2001, p. 242). 65 Vatuk

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towards gender equality evident from the judgment.69 There are several legislations whose ineffective enforcement has not prevented the exploitation of women in a largely male-dominated society. Interpretation and decisions pronounced by the judges reflect the gender-biased and deep-rooted patriarchal mindset. Such judicial decisions show the paternalistic regressive interpretation of laws. In derogation of the anti-dowry laws, the Court held that a man demanding money from his in-laws on the pretext of some ‘financial stringency’, urgent domestic expenses, or purchasing manure could not be termed as a demand for dowry. Thus, as per this judgment, a husband can demand material goods under the guise of business needs and urgent requirement” in derogation to the anti-dowry laws and the equality provisions. Some judges still regard a daughter’s marriage as an event bringing about a disentitlement from the natal property.70 By doing so, they provide power to the notion that dowry or marriage expenses are equitable to their brother’s share in the property. The paternalistic attitude of judges makes it the bounded duty of the wife to follow and live with her husband wherever he chooses.71 These arbitrary judgements prove that equality is far. They are against the constitutional guarantee of equality for women even when the wives pleaded that her job necessitates her living separately from her husband.72 The discriminatory and inequitable legal provisions and their interpretation bring out the paternalistic bias of the judges for conventional norms. Practically, every effort is made by the court-appointed counsellors or by the judges to persuade female litigants to reconcile with their husbands. They believe that rather than being a single woman, they should continue living in a marital relationship even though she might be mistreated else she will face the economic and social hardships that such a status entails.73 Further, once the litigation begins, the possibility of an early settlement is precluded due to the couple’s unwillingness to negotiate. Parties think that it will be a sign of weakness to initiate any discussion. The Courts and ADR practitioner need to overcome this initial hiccup by exerting restrain. In the name of preservation of a relationship, the impartial practitioner should not be re-establishing the social and economic disparities between man and woman, clichéd culture, and patriarchal social structure.74 Despite all, even the people responsible for bringing justice to women when facing the dilemma of choosing reconciliation over divorce always keep gender justice secondary. The counsellors or mediator are supposed to take a neutral stand during the negotiation and reconciliation. But the presence of unequal power relations between husband and wife and adopting the neutral stance by the ADR practitioner will be least conducive to women. In such a situation of unequal power dynamics, a 69 Appasaheb

v. State of Maharashtra, AIR 2007 SC 664. Singh v. Aso, AIR 1990 SC 1888. 71 Vuyyuru Pothu Raju v. Vuyyuru Radha, AIR 1965 AP 407. 72 Sivaramayya (1984, p. 268). 73 Vatuk 2001. 74 Patel and Sharma (2009, p. 81). 70 Dharam

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neutral stanced of the ADR practitioner will approve and support their internalized patriarchal biases against women.75 Neutrality Neutrality which implies that ‘equidistance’ is perhaps the central theme of mediation. If we look at various definitions of mediation, the word neutrality appears repetitive. It means that mediators must separate their personal opinions about the case from their professional obligation and remain unbiased. The mediator is expected to maintain a neutral relationship with the parties by remaining impartial to the issue at hand.76 The ADR practitioner possess the power to influence the entire reconciliation process. The test of a mediator’s neutrality is the parties’ judgment of their behaviour. It should assure objectivity, which ensures a fair, credible, and impartial process and outcome. The ADR standards of practice also state that the third neutral person must be impartial, unbiased and should not have any preferences towards any party or position.77 Neutrality and empowerment are the ethical principle and standard that mediator should uphold. For achieving this, the ADR process is required to be controlled by the setting of the ground rules.78 The ADR approach is premised on the understanding that the parties are equal in every respect. But it is possible only in an ideal adversarial system wherein it is assumed that parties have the equal skill and economic support; thus, the results will not be dependent on the resources or skill possessed by a party and the person representing him but on the merits of the argument.79 Neutral stance ignores societal inequities in a patriarchal society and the unequal negotiating power of men and women. During the negotiation process, it compromises the ability of the less powerful party to represent their needs and interests. For women, factors including education, economic power, status, competitive orientation, and sex role ideology contribute towards unequal power relations that provide men with significant negotiating advantages.80 Due to the past DV, the fear created and the emotional and psychological edge of the batterer may continue even during the negotiation impacting the women power in battered women. The women may feel powerlessness, insecurity, guilt, anger, resentment, exhaustion, hopelessness, inferiority, shame, incompetence, and helplessness. Women may feel fear, pain, depression, and self-hatred.81 In such a scenario, the neutrality aspect may be counterproductive to the interest of women facing a matrimonial dispute. Solely taking a neutral stand will make the mediator

75 Flavia

(2011, p. 272). (2003, p. 52). 77 Boulle (1996). 78 Folberg and Taylor (1984, pp. 7–8). 79 Carrie (1996). 80 Cobb and Rifkin (1991, pp. 43–46). 81 Vestal Anita. (2007). Domestic Violence and Mediation: Concerns and Recommendations, Available at: http://www.mediate.com/articles/vestala3.cfm (Accessed on September 13, 2020). 76 Moore

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unable to address the issue of power imbalances. Mediator’s intervention is required to assist the disadvantaged party.82 The laws and the legal institutions were of men, run by men, and for men essentially and exceptionally for women. Women have been the victim of discrimination under practically every branch of the law.83 Women are regarded as the weaker party, and the ADR practitioners who are also part of society also hold this opinion. In such a situation, it is doubted how helpful the neutral stance will be. Also, the gender neutrality of the law worked to the disadvantage of the women who needed a sensitive legal approach.84 Battering can create extreme power imbalances between men and women through repeated abuse (physical, emotional, sexual, familial, or property), threats, and intimidation, and the batterer exerts control over the victim and isolates her from external resources and support. Even if women attain equal status in a particular area, the sex role expectations of care and relatedness disadvantage the women negotiating powers. But it must be born in mind that women are vulnerable and financially dependent.85 Questions are raised about if in such cases the women, who are the weaker party, will be able to achieve a fair agreement. Despite women being the sufferer, the notion that both parties are responsible for a marital conflict makes this condition further worse the position of battered women by generating guilt and pessimism about the justice process.86 In such a situation, the ordinary process will not do any good. Ordinary face-to-face meetings will make the women uncomfortable or fear in facing the abuser. It calls for additional interventions including screening, experience, and training to identify and deal with DV and power imbalance dynamics. He should commit to devoting sufficient time to the process. Else the battered women will end up agreeing to terms that may not be as per their demand but reflective of the imposition of the interest of the opposite party. In such a situation, women need to be apprised about the drawback and possible difficulties they may face due to the existing power imbalances among the spouses. The ADR practitioner like the mediator should not isolate himself from any reciprocity in relationship with the disputants. Neutrality is an important consideration, but in our patriarchal society, the neutral stand of the ADR practitioner will prove to be anti-woman. Thus, the process should be gender just, gender-sensitive.87 The informality of mediation is conducive to the emergence of emotional ups and downs. The mediator is expected to empathize with the parties in distress by looking beneath and treating their feelings. Else the parties will keep the mediator at arm’s length. This will make him feel handicapped as he cannot develop insights into the awareness of their mutual attitudes. Thus, the quality of his work will suffer.88 82 Gribben

(1994, p. 22). and Parasher (1999, p. 117). 84 Dhanda and Parasher (1999, p. 120). 85 Chatterjee (1997, p. 68). 86 Grillo (1991). 87 Flavia (2011). 88 Menon (1998, p. 162). 83 Dhanda

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Parties can be encouraged to share their views without interrupting or intimidating behaviour and monitoring that one party does not settle the dispute out of fear. For this, the mediation process should be conducted in a context that offers information and support. The mediator should compensate (in caucus) for one party’s negotiation skill deficiencies by encouraging insight into the parties’ (destructive) patterns of interaction and controlling who attends mediation sessions. Thus, the mediators/counsellors should intervene actively in ways that influence the process and reinforces certain views and values that should not be used directly.89 The rule of neutrality should create exception wrt interpersonal disputes to allow equal access to justice and for equitable negotiating setting for the weaker party. Both the parties must be informed that by relaxing the rule of neutrality through the exception, the mediator is not taking sides but making the situation even-handed.90

6.2.2 Prejudicial Bias and Gender Role Ideologies The Constitution of India mandates women empowerment and affirmative action. But these constitutional goals, laws, and policies emanating from them are yet to be fully realized. Obstacles like attitudinal biases and prejudices prevent gender equality. Biasness of ADR practitioner means the extent to which he allocates the stakes to each side in the dispute or his extent of bias towards a particular outcome, even though it will favour one of the disputants over the other or conferring an advantage on one side in a dispute.91 Bias can affect the decisions of the disputants by being perceived as relatively ineffective. The literature suggests that societal prejudices and notions against women are present in these non-conventional ADR (counselling, mediation and reconciliation) processes hampering their effectiveness. The women face anti-women bias not only in society but in general. The biased attitude of the Court functionaries is evident from the way they treat the women litigants.92 Society expects the judge to be objective, knowledgeable, independent, discerning, practical, sensitive, and fair, but when the unconscious and pervasive biases permeate the judicial system, it no longer remains fair.93 Bias indicates a lack of fairness or alleging favouritism in viewing a subject. In the legal arena, it is often used in the context of a judge being disposed for or against one of the parties before him. If a mediator is pre-disposed towards one of the parties before him and embarks on his role with a preconceived view about the controversy, 89 Parkinson

(1997, p. 13). and Salem (1984, pp. 19–21). 91 Kydd (2003, pp. 601–602). 92 NCW (March 20, 2002, p. 7) Family Courts, Report on Working of Family Courts and Model Family Courts (New Delhi). 93 Mahoney (1999, p. 85). 90 Davis

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he becomes a partisan. His subtle aligning to one of the parties viewpoints and promoting their interests is a derogation to fairness excepted from him. He may be intolerant of alternative solutions. In the course of the interaction, the party favoured senses that the mediator is with him and makes him unreasonable and adamant that can stall the negotiations.94 Bias may arise out of the background of the mediator, his values, culture, and experience. The mediator should be able to identify the views and values of the conflicting parties to fruitfully assist them in their negotiations. But the mediator has to caution himself against allowing his views to block the search for other solutions, agreeable to the parties. He has to be sensitive to the preference of the parties. He cannot allow his prejudices to dictate the course of the negotiation or the terms of the settlement between the parties.95 If we look at international documents like ICCPR, CEDAW, etc., women are granted access to justice under them. Any sort of stereotyping and biases distorts perceptions and results in decisions based on preconceived beliefs and myths rather than relevant facts. Often practitioners adopt rigid standards about the appropriate behaviour for women and penalize, misinterpret, or misapply laws to nonconfirming women, thus leading to miscarriages of justice and revictimization of the complainants. Stereotyping, therefore, permeates both the investigation and trial phases and finally shapes the judgment.96 The CEDAW Committee has therefore called on states to ensure all legal and quasi-judicial procedures are free from gender stereotypes and prejudice.97 The right of every woman to be free from violence includes, among others the right to be valued and educated free of stereotyped patterns of behaviour and social and cultural practices based on concepts of inferiority or subordination.98 The UN Doc CEDAW/C/GC/33 on women’s access to justice stated that women should be able to rely on a justice system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. Eliminating judicial stereotyping in the justice system is a crucial step in ensuring equality and justice for victims and survivors.99 Despite reform, in legal provisions, the machinery for the enforcement of DV and its related rights, gender bias exists in various forms. In Courts, women fear the system and hardly believe that they will receive justice. The overwhelmingly large number of male judges shares the patriarchal values of the society, often holding the women who come before them to idealized, high standards of feminine behaviour. If we 94 Menon

(1998, p. 159). (1998, p. 159). 96 UN Doc CEDAW/C/GC/33 (2015, para 42(a) and 26-27) CEDAW General Recommendation No 33, General Recommendation on Women’s Access to Justice. 97 UN Doc CEDAW/C/GC/33 (2015, para 42(a) and 26-27 18(e) CEDAW General Recommendation No 33, General recommendation on women’s access to justice. 98 See The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (July 11, 2003), Article 2(2) (Maputo Protocol). 99 UN Doc CEDAW/C/GC/33 (2015, para 42(a) and 28) CEDAW General Recommendation No 33, General Recommendation on Women’s Access to Justice. 95 Menon

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examine the decisions of HC and SC, the judges often by-passes womens legal rights whom they think have deviated from the standards of feminine propriety.100 Gender biases and stereotypes about gender roles reflect in law enforcement’s responses. The victim is asked questions that will put her in a situation of fix and guilt. She might be questioned about where she went wrong that led to a crime against her. She might be cross-examined about her surrounding situation. The rape survivor might be asked questions about the kind of dress that she was wearing, how and where was she walking, why she was travelling in the night and why there is a delay in reporting. Thus, there are misinterpretations given to the testimony of the victim. The veracity of their ordeal in questioned adding their woes despite IEA (section 114A) lying down the rules of presumptions in this context. Gender bias seeps into all facets of society, including law implementation and the reactions to DV. Women do not believe in the system. The statistics show that only less than 40% of the women experiencing violence seek help that too from family and friends. Less than 10% of women seeking help look to formal institutions such as police and health services.101 Gender bias and stereotypes are visible from the kind of questions posed to the battered women about DV. Authorities often ask uncomfortable and insensitive questions concerning their behaviour, physique in comparison to that of the abuser and the chances of abuse. The characterization of battered women and not hearing a victims account of their ordeal, failure to question suspects and investigate properly gets translated into denial of justice. Strategies to address gender bias must target recognizing and responding to change these myths and perceptions.102 Therefore, the judge’s disapproval of the gender bias is not uniform. They too are the product of the patriarchal system and are at times oblivious to the subtle gender discriminations which punctuate the laws and their interpretation.103 The judges are after all part of the society and cannot be immune from the dominant trends of prevailing societal thoughts. Permeation of unconscious and pervasive biases in the judicial system is not fair.104 There are judicial decisions that point towards the patriarchal mindset that needs to be checked.105 The role ideologies make the legal system fails to effectively deal with violence perpetrated by men on women which is often hidden but influential and directs a women’s actions. A realistic and progressive change in the law to achieve equality and the effective implementation of the existing laws should be the major concern towards achieving social justice 100 Uberoi

(2006). Nations Economic and Social Affairs (2015, p. 159) The World’s Women 2015, Trends and Statistics. 102 Martinson Rhonda and Gamache Denise (2016, pp. 6–7) Ending gender bias in the Law enforcement response To sexual assault and Domestic violence. Battered Women’s Justice Project Report on the OVW Roundtable. Available at: https://www.bwjp.org/assets/documents/pdfs/ovw-genderbias-roundtable-report.pdf (Accessed on October 23, 2020). 103 Dhanda and Parasher (1999, p. 130). 104 Mahoney (1999, p. 20). 105 Nariman, F. S. (2006, p. 137). 101 United

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for women.106 The poor literacy, poverty, and lack of awareness of legal rights and duties make women, especially in rural areas, susceptible to these challenges. Every such form of discriminatory attitudes towards women installs fear about disclosing personal details apart from access to justice due to corrupt practices, delays, and biasness.107

6.2.3 Lack of Sensitive Redressal of Disputes The concept of gender sensitivity implies the ability to recognize gender issues and to recognize women’s different perceptions and interests, arising from their different social positions and gender roles. In most cases of marital disputes, women opt for Court settlement as a last resort, when all efforts of conciliation or settlement at various levels have failed to yield any results. Women are reluctant to initiate legal redress against the husband. It is due to fears that grapple them like fear of losing child custody,108 residence right in their matrimonial home, and social stigma. Often not economically independent and lack of family support makes them trapped in the vicious circle. They fear that in case of domestic discord, separation, and divorce their husband can compel them to leave the matrimonial home, so women try their best to reconcile with their husbands.109 This fear of impoverishment prevents women from seeking respite from violent marriages. The protection against DV and the right to matrimonial home are contesting and conflicting claims. The victim gets trapped between two notions: reconciliation with the husband for the sake of preserving the marriage or relinquishing her claim to the matrimonial home, dissolving the marriage, and then facing a life of destitution.110 In such a situation, there should be greater sensitivity towards women in the judiciary. These women approaching the Courts for relief should not be viewed through biased lenses.111 The legal battle was lengthy, cumbersome, and expensive. Women may be economically dependent and seldom have no place to go; thus, while negotiating during the reconciliation process, they face gender-based economic inequality that tilts the power in favour of men. These vulnerabilities never feature in any state or NGO intervention due to her limited choices and even if she was subjected to repeated violence. Above this, the firm belief in the sanctity of marriage puts additional pressure on the woman to reconcile. Thus, a woman is incapable of standing against these odds that take away her control from her life.112 Too much stress on reconciliation under the various ADR processes proves to be counterproductive. The refusal to 106 Midha

(1990, p. 78). and Kumar (2011, p. 44). 108 Fineman (1988, pp. 725–730). 109 Maitra and Gayathri (2015). 110 Prashar and Dhanda (2008, p. 249). 111 See Footnote 110. 112 Solanki and Gangoli (2016, p. 59). 107 Singh

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recognize the irretrievable break down of the marriage and to start the process of reconciliation again when disharmony has seeped into the roots of the relationship only delays the awarding due rights of women. Women dependent on family and husbands may get pressured to accept solutions to their problems that do not satisfy them or are indeed unjust. Under ADR, they get in the way of the bargaining power of the women vis-à-vis the husband. The mediator often proposes a preferred solution to the women’s problem which may not be to the woman’s liking. Women’s lack of education and independence more often than not result in the acceptance of decision that may suit their families or other interested parties but not them. In such a situation, the interpretation of culture premised upon the subordination of women cannot be used to withhold the entitlements and resources and justify discrimination against them.113 This calls for sensitive redress on the part of the enforcement agencies. The next issue that requires sensitive handling is in the context of DV. Walker (1979) gave the cycle theory of violence or the three-phase theory of battering.114 The three stages are (a) a tension-building period, (b) acute battering and (c) calm-loving respite. The woman who has gone through many such cycles knows the pattern well. The woman leaves the man when the man is in phase two. The ADR professional finds it difficult to accept the woman’s version of the battering. When they meet, the husband has moved into phase three: the loving, affectionate, and concerned man they meet is quite a different person from the aggressive, dominant men the women had portrayed earlier. The counsellors and social workers need to recognize the ‘Three-Phase’ cycle theory of wife-beating. Thus, the women are physically and psychologically abused by their husbands, and the law enforcers might remain indifferent to their plight. They may even blame her for getting beaten and for not ending their beatings. They are blamed for not getting help, and when they do so, they are advised to go home and stop their inappropriate behaviour. Whenever the woman shows a desire for reconciliation, she should be sensitively dealt with and given some advice about the precautions she should take in case of a future attack.115 Thus, justice entails factors like enacting laws that are responsive to the changing requirements of the time, their effective implementation, and progressive interpretation to fill the gaps left by particular legislation. In the FC processes, the proactive roles of gender-sensitive judges who during the proceedings do not merely respond to material presented by advocates have often been highlighted.116 In the case of Bhuwan Mohan Singh v. Meenam,117 regarding the role of the judges of FC, it observed that: The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about 113 Dias

and Honwana (2011, p. 144). and Prashar (1999, p. 159). 115 Ghadially (1996, p. 163). 116 Anand (2003). 117 AIR 2014 SC 2875. 114 Dhanda

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dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc.

Also, the belief among the judges and ADR practitioners that women do not leave a marriage because the violence must be bearable demonstrates a marked lack of sensitivity and a refusal to try to understand their position.118 The provision of safe and secure accommodation is one of the prime requirements even when women facing violence from their partners. The lack of alternative accommodation may result in women reluctantly staying in a violent relationship. There is a need to appreciate that there are three areas to be considered: protection in the family home, the provision of alternative accommodation, and refuges.119 Women have limited options to choose among, i.e. staying, leaving or surviving the DV and that might stop the women from taking any step. Women’s reason for staying in an abusive relationship is embedded in social norms and beliefs about women, marriage, the family and violence. It is the commitment to making the marriage work that women may cling to the hope that the man will change. Women do not seek redress and give batterer the benefit of the doubt when he promises it will not happen again. They may even look for the fault in themselves. The feelings of shame may prevent the women from seeking help, even from friends, neighbours, and relatives. There may also be an element of fear or apprehension that the man will find them and become even more violent.120 Thus, if women do not opt-out of a marriage, it does not mean that violence must be bearable which shows a marked lack of sensitivity. The way justice is derived leaves much to be desired. The judicial tendency of showing indifference and lack of sensitivity towards gender justice was highlighted in a study conducted by an Indian NGO Sakshi (working in the area of gender justice). The judges from various Courts from various states and women seeking redressal from the Court were interviewed. One of the important observations made in this regard was “it is the durability of this assumption expressed by judges…that allows so much male violence to go unchallenged, so much so that even where women have experienced extreme violence, they are blamed for provoking or tolerating that violence”. It was sadly believed that women facing spousal abuse are partly responsible for their situation (51%) by continuing to stay in such a situation. 74% believe that preservation of the family should be their primary concern even when there is DV in marriage. About 68% felt that provocative attire was an invitation to 118 Sharma

(1997, p. 100). (1997, p. 99). 120 Sharma (1997, pp. 100–101). 119 Sharma

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rape, and 55% felt that moral attire was relevant to rape. This uncovers and exposes the myth of judicial neutrality.121 Also, the conviction rate of cases of DV and rape is low. In this scenario of indifferent attitudes, gender bias and indulging in stereotypical probing by authorities, the judicial system and ADR practitioners affect women right to an equitable, fair and just trial and justice. Women are asked questions about what they could have done to prevent a situation in which they were wronged. Their credibility is challenged on the pretext of how they should have rationally responded in that situation. The idea of blaming the victim or victim-blaming theories that she must have done something to provoke the husband leaves DV unbridled, isolates a woman, make her lose faith in these process. Non-appreciation of the women position and branding their behaviour as ‘provocative’ has the effect of justifying the husband’s battering his wife back into submission. Despite expectations of neutrality, the process ought to involve condemnation of the acts of the accused. Not doing so reinforces the normalization of such an act both in the eyes of the accused and the victim who will be further disempowered.

6.3 Final Settlements and Underplay of Gender Justice: Do ADR Permit Equitable Negotiations? The above discussed attitudinal biases serve to reinforce the position of powerlessness among women in realizing their rights. Even when women are suffering DV within a marriage, tendering them advice to stay in it and do their best to reconcile the differences, especially by the agencies and authorities to whom they approach for help, is a preposition opposite to their safety and dignity. For battered women, the deeprooted thoughts and perceptions limit their options. Women poor economic capacity makes the ADR responses aim at solutions that keep the marital ties intact. The functioning of ADR is challenged in terms of the unfamiliarity of process, low acceptance, unequal bargaining power, and the need for a weaker party to seek the Court’s protection. The issues of spousal abuse, issues of safety, and the role played by unbiased party generate controversy about the rights of the battered woman.122 ADR may not be suitable for a battered woman facing DV and power imbalance in her relationship as both of these reasons make her vulnerable and affect their ability to negotiate their legal claims. This section evaluates the effect of unequal power and the effect of DV and their effect on the final settlements. 121 Sakshi

(1996, p. 8) Report on Gender and Judges: A Judicial Point of view. Vidmar K. et al. (1993, pp. 2117–2174).

122 Fischer,

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6.3.1 Power Imbalance and Complexities for Women In the case of Richmond Newspapers, Inc. v. Virginia,123 it was held that the criminal trials must be open to the public unless there is evidence to support an overriding countervailing interest. The reason given for this logic was It gives assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. Historically and functionally, open trials have been closely associated with the development of the fundamental procedure of trial by jury, and trial access assumes structural importance in this Nation’s government of laws by assuring the public that procedural rights are respected and that justice is afforded equally, by serving as an effective restraint on possible abuse of judicial power, and by aiding the accuracy of the trial fact finding process. It was further concluded that it was not necessary to consider in this case what countervailing interests might be sufficiently compelling to reverse the presumption of openness of trials.

In cases of unequal bargaining power, the weaker party may need the Court’s protection. Power imbalance may put women in a disadvantageous position. The power balance in cases where the parties are heard in a private setting with the chances of women coaxed to accepting settlements unsuitable to their interest is high. In cases of unequal bargaining power, the weaker party may need the Court’s protection. Women trapped in power inequities have less control and power of selfdetermination.124 The term ‘power imbalance’ implies a host of things. It includes the financial power, capacity to hire a lawyer, emotional and psychological factors, controlling power and differences in economic, psychological, intellectual, physical and emotional well-being.125 In a matrimonial dispute, the presence of power imbalances will make the ADR ill-suited to women interest. In cases showing the traces of power imbalance as allegations of DV or abuses, pressing for one’s own need only and not considering others are the assessments to be made to decide if ADR is a correct strategy.126 The presence of a batterer is discomforting as he may employ varied methods to reassure his power position over his battered women during the ADR process as well. Safety concern might prevent her from being restored. The batterer may keep gawking during the session. Physical safety alone would not be sufficient to obliterate the strong impressions of psychological terrorism.127 The woman victim may feel difficult to express her during the process as a sense of urgency to settle and get out of this situation and the process may command her.128 For this, she may even reduce her stakes and demands to negotiate due to incapacity created by the persistent DV.129 123 Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). (1991, p. 1603). 125 Hughes (1995, pp. 554–574). 126 Haynes (1983, p. 1). 127 Knowlton and Muhlhauser (1994, pp. 255–266). 128 Gagnon (1992, pp. 272–274). 129 Grillo (1991, pp. 1549–1551). 124 Grillo

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During legal proceedings, financially dependent women have much at stake. Not every woman is aware of and vocal about their needs and desires. Some men are sympathetic for the residue of feelings, for old times sake or because of their affection towards the children. But the chances of power imbalance and gender bias crops in and hamper women requirements from the process. The internalization of traditional norms due to the socialization process makes them feel subordinate and self-sacrificing. They feel disempowered and negotiate accommodatively divesting them of their valid claims under the laws. They may even accept the liability for the negative reactions produced by the batterer. Thus, the process may end up in revictimizing the women.130 Mediators typically fail in recognizing the existence of inequities and thus take action to correct the power imbalance due to a lack of sensitivity to power disparities resulting from a gendered culture. There are two sources of power that illustrate the inequities between men and women entering divorce: tangible resources, like wealth and education; and intangible resources, like self-esteem, status, and dominance. It is difficult to identify the disparities that stem from intangible resources and the unlikelihood that even a skilled mediator could address these inequities in the course of the mediation process. In the joint sessions, the mediator’s interventionist role or lost control can be disempowering for the woman, so shuttle mediation may be the best option in power imbalance and abuse situations. Where there are power imbalances involving actual or potential violence or harm, mediators must take particular care to consider whether mediation should take place at all and, if so, under what circumstances and conditions. Mediators must ensure that parties take part in mediation willingly, without fear of violence or intimidation. Appropriate arrangements should be made for the reception of the parties on arrival, availability of separate waiting areas and, if appropriate, a separate meeting with each party. Mediators should be able to recognize different kinds of power imbalances that could affect the process. He must take appropriate steps to manage them by establishing ground rules, sharing information, and identifying needs for legal and other advice. If power imbalances cannot be addressed and managed adequately, the mediation process should be terminated.131 Thus, the counsellor or mediator has to ensure that there is no scope of the emergence of power imbalance. For this purpose, uniform guidelines must be laid down about how and in what way the reconciliation and settlement should be approached by the ADR practitioners, without imposing things on the women.

6.3.2 DV and Its Effects on Negotiation CEDAW (GR-33, 2015) on women’s access to justice and ADR stated that though these processes provide flexibility and reduce costs and delays for women seeking justice, they may also lead to further violations of their rights and impunity for 130 Grillo

(1991, p. 1545). (1997, p. 15).

131 Parkinson

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perpetrators because they often operate based on patriarchal values, thereby harming women’s access to judicial review and remedies. It suggested that the state parties should ensure that cases of violence including DV against women are not referred to any ADR under any circumstances.132 Violence against women is grounded in power imbalances between men and women.133 The social learning theory explains men’s violence towards women as learned behaviour. This phenomenon is referred to as a ‘cycle of violence’, i.e. those who witness violence between their parents or who themselves experienced abuse as children are likely to resort to violence in adulthood.134 Women are socialized into adopting complaint, submissive, and passive roles and accepting their essentially subordinate position. Structural constraints reinforce this order.135 Women’s economic dependence is a mediating factor in violence against them; the greater the dependence, the greater is the risk of serious assault.136 Where her interests clash with those of her husband’s, there is a tendency to subordinate her life to his.137 The abused women fail to get the help they need because many agencies offer partial help and each one refers her to the next. No one professional consider the entire women’s situation.138 The majority of women usually do not initiate divorce proceedings and try their best for reconciling their differences. Being less independent, observant of unequal power relations in the family and being dependent creates insecurity among women making them fearful of taking a bold step against these wrongs.139 State institutions advise women to reconcile and stay in a bad marriage as there is no alternative available to women. Socio-economic inequities among parties are the prime reason behind violence against women. A mid-way solution is tried in DV without breaking the marital bond. The thinking of inviolability of marriage as an established norm hampers the appropriate implementation of laws made for women protection. The general apathy among law enforcement agencies beats the objectives of the law. The legal system fails to effectively deal with violence perpetrated by men. In DV cases, the victim is vulnerable as police, friends, and relatives perceiving DV as a private affair and are often reluctant in helping victims. The women victim and children are dependent on the perpetrator for almost everything including food, shelter, and identity.140 An unthinking insistence either on the part of the marriage counsellor or judge on the women’s returning to the husband without protecting her in any 132 CEDAW/C/GC/33

(August 3, 2015, p. 22) General recommendation No. 33 on the women’s access to justice Available at: https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Recommend ations.aspx (Accessed on July 15, 2020). 133 Sharma (1997, p. 28). 134 Sharma (1997, p. 96). 135 Sharma (1997, p. 84). 136 Sharma (1997, p. 97). 137 Sharma (1997, p. 24). 138 Sharma (1997, p. 66). 139 Rao and Sekhar (2002, pp. 541–563). 140 Manohar (1999, p. 45).

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manner against any DV may cause more harm than good.141 Often violence against women is hidden but influential, directing a woman’s actions and affecting the way the law operates concerning her. In case the Court recommends the parties to attend counselling or conciliation, the allegation of DV must be taken into account to protect a party.142 Very few DV cases reach the police station and action is taken a few of these cases. The usual form of action is to call the other party to the police station and advice or counsel them. The police response to the problem of violence is hopelessly inadequate. And it is essential to make changes in these practices to make them more beneficial to women.143 There seems to be reluctance on the part of most groups working towards social change to take up DV and power relationships within the family. The problem is viewed as a general problem of domestic discord with social acceptability that man is the master and the women are an inferior and subordinate partner. Counsellors and social workers also contribute implicitly towards this ideology when they question a woman who gets beaten like ‘What did you do to provoke him?’.144 Lack of accommodation and the presence of children in a violent relationship create additional stress for women as they may fear for their safety.145 If police, judiciary, and protection officers attitude towards DV and gender issues reinforces the continuation of archaic notion of DV being a family affair, it will be unfavourable for women. If counselling is done with the attitude of imposing biased negotiation against women to keep the family together, bear violence such counselling is damaging to women and defeat the intent of the law.146 Violence has certain special inter-actable characteristic because it is perpetrated in the privacy of the home.147 Even if women undergo the ADR process, both the parties are often reluctant to divulge the past DV phenomenon that inevitably affects the quality of the outcome. The abuser may even pretend to be cooperative during the bargaining process, but deep inside, they hardly have any consideration for the abused women and keep their motives as the sole focus.148 So, it is important that where the Court directs the parties to attend counselling or conciliation, it shall take into account any allegations of violence or reluctance of a party to attend because of violence and the need to ensure the protection of the party against violence. In a recent case,149 the Court also laid down guidelines for counselling/mediation under the PWDVA including informing the victim of her rights regarding DV and other legal action without pressurising her to compromise. Even the counselling and mediation will be voluntary and to begin after her consent. 141 Manohar

(1999, p. 49). (1999, p. 42). 143 Ghadially (1996, p. 165). 144 Ghadially (1996, pp. 124 and 152). 145 Kelly (1995). 146 Third Monitoring and Evaluation Report (2009, p. 36) Lawyers Collective, Delhi. 147 Bhandare (2010, p. 29). 148 Gribben (1994, p. 25). 149 Dr Jaya Sagade, Director v. The State of Maharashtra (2016) 1 Mah LJ 947. 142 Manohar

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Thus, the cases concerning DV can be mediated even before the filling of the case and Courts direction. Only cases wherein the chances of repetition of DV are less are amenable to ADR; else, such cases should be dealt with in the regular Court. Certain policy guidelines for check and balance about DV through screening are to be kept in the vanguard to avoid power imbalances.

6.3.3 Final or Fair Settlements and Equitable Negotiations The ADR is a method of dealing with family law disputes and other civil matters. The ADR process is framed to make justice accessible and effective for the disadvantaged groups away from overcrowding Courts and for settling cases through compromise or reconciliation. However, despite their numerous advantages compared to the regular Courts, it is doubted if they deliver quality justice to the weaker party or if focuses on the speedy but less advantageous award to which one is entitled under the law.150 This phenomenon is known as ‘trading justice for harmony’ and diverting of a dispute between unequal parties for mediation.151 In the case of FC, it is doubted if the kind of setting provided by the Court allows equitable justice, since the advocates are not permitted to represent the parties as a matter of right. The discretion lies with the Court, though usually this permission is granted. The ADR practitioner does a private session, and the possibility of ‘privatization of the dispute is apprehended’. In tune with the social reality, they need to promote negotiations and settlements, but the pro-women stand premised on gender sensitivity which should be brought into this entire framework. Therefore, the FC should have a framework for gender justice in place.152 In the name of providing the private setting, the ‘in-camera’ proceedings should not privatize women issues and the problems faced by women are note hidden and muted in the name of conciliation.153 The FC system emphasizes conciliation and settlement in cases where women have been oppressed in the marriage. The stress on the preservation of marriage, even when women are subjected to various wrongs, is discriminatory.154 Also, the FCA was conceived to make the divorce process speedy, but the Act does not balance the ‘gender justice’ aspect against the ‘preservation of the family’. Preservation of the family has equated protection of women’s rights.155 Women being economically dependent and with no skills to bargain is made to participate in the reconciliation process. Women do so by forgetting every wrong inflicted on them, thus making it an effort at the cost of women and gender justice, and often, the process ends up

150 Galanter

and Krishnan (2003). (1992, p. 471). 152 Flavia (2011, p. 33). 153 Chawla (2006). 154 Nagasaila (1992, p. 1736). 155 Flavia (2011, p. 272). 151 Nader

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in denying them property rights and the right of divorce.156 The ADR process and conciliatory approach are based on the notion that both parties are equal, but it is not true in the existing social structure. Women are vulnerable and dependent on men for social and economic security.157 The possibility of a stronger party forcing a settlement on the weaker party becomes high. Women will suffer in such a situation where due to unequal bargaining power they are forced by the mediator and husband to conform to the demand that does not suit their interest or desires. If this will happen, it will be the purveyor of the dominant oppressive social values.158 The CEDAW Committee has observed that the safety and well-being of women and children must be prioritized, especially in situations where negotiation and ADR are used to address issues related to them. If a perpetrator threatens the safety and well-being of women and their children, it must be prioritized.159 In India, the Court is allowing quashing of criminal proceedings instituted under Section 498A of IPC and Sections 3 and 4 of the DPA,160 allowed compounding of the offence161 on the request of the victim after amicable settlement even if the offences are noncompoundable and related to matrimonial disputes and the Court is satisfied.162 Criminal proceeding under Section 482 of CrPC can be quashed in a non-compoundable offence if there is an amicable settlement of differences.163 A proposal to make certain non-compoundable offences under IPC like Section 498A of IPC be made compoundable for reducing Courts burden.164 Indian Courts are of the view that prelitigation mediation should be motivated for matrimonial disputes if those disputes are fit for mediation.165 The Supreme Court even directed that all criminal Courts must try to adopt mediation efforts to settle matrimonial disputes, particularly cases of Section 498A under the IPC that covers harassment of a woman by her husband and his family members. Courts can try to strike a compromise between couples. Despite these inequities, the mediator/counsellor is expected to try and settle matrimonial disputes.166 156 See

Footnote 155. (1997, p. 68). 158 NCW (2001, p. 1878) Marriage Dispute and Gender Justice in Family Courts, in Poornima Advani, Course Curriculum on Gender Sensitization of Judicial Personnel; A training manual, New Delhi. 159 UN Doc CEDAW/C/GC/29 (2013, para 14 and 15) CEDAW Committee, General Recommendation No 29, Economic Consequences of Marriage, Family Relations and their Dissolution. 160 Mohammed Mushtaq Ahmad and Ors. v. State by Kengeri Police Station and Ors., 2015 (3) AKR 363. 161 Gurudath K. v. Respondent: State of Karnataka MANU/KA/2695/2014. 162 (2013) 4 SCC 5. 163 B.S. Joshi & Ors. v State of Haryana & Anr. AIR, (2003) SC 1386. 164 Ramgopal and Anr. v State of M.P. and Anr., (2010) 13 SCC 540. 165 K. Srinivas Rao v D.A. Deepa, (2013) 5 SCC 226. 166 K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226. 157 Chatterjee

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A basic question raised in this regard is if the disputes involving DV should be mediated or not. It is proposed that cases with a history of DV are not appropriate for mediation.167 The contemporary debate questions the efficacy of ADR in DV cases, especially in developing countries. The growing feminist literature indicates that various peculiar limitations make women less equal who will not benefit from this process. In such a case, ADR will further limit a woman’s access to justice. The ADR process tends to marginalize legal issues affecting women, especially the family issues be regarded as ‘private’ and thus ‘non-legal’ and not worth dealing with by a Court. DV will be re-established as the family matter that can be condoned for which parties must distance each other and give time to the relationship. It will hamper the conviction rate of crimes and non-prevention of crimes by not punishing the crimes against women under the garb of protecting them. It will obstruct the progression process of women’s rights jurisprudence. It is often argued if mediation is appropriate for resolving matrimonial disputes where there is a history of alleged DV against women or the children of the marriage. On one hand, it is accepted to use mediation in DV based on the logic that these are just like other verities of dispute that can be resolved confidentiality, informally, flexibly to preserve relationships and prevent breaking of families and marriages. If reconciliation could be worked out, it will save the emotional and financial deprivation of women and children that might get aggravated by Court cases.168 Also, since parties are at liberty to abide or not with the decision, they can decide things for themselves and all this will not close the doors of Courts for seeking redressal if they wish to later. The Court will keep a check on mediation till its finalization. The MOU entered during mediation proceedings need to be reconfirmed and ordered to be passed according to it; till then, the parties are at liberty to retract back.169 On the other hand, it is proposed that as per the Indian conditions, women are often the worst suffers from DV whose incidents are on the rise, but the conviction rates remain poor. If, in such cases, reference to ADR is legitimate or if regular Courts should deal with such cases. It is also affirmed that the DV which is a criminal offence must be dealt with by the Court just like any other offence. The logic of this reasoning is that the offences are punishable for creating deterrence among the people at large to avoid its repetition. It is not judicious to force reconciliation under such circumstances as women due to their peculiar socio-economic conditions will be forced or intimidated to reconcile. They may agree to inequitable proposal leading to their further subordination.170 They cannot negotiate well due to poor education, skills, and financial independence, and the grave accusation of DV and reconciliation will be an injustice on them.171 The two viewpoints, i.e. ‘to be’ or ‘not to be’, need to be harmonized by the Courts in the larger context of the situation of women in India with due weightage 167 Murphy

and Rubinson (2005, pp. 53–55). and Kelly (1980, pp. 51–54). 169 Afcons Infrastructure Ltd. v. Varkey Construction Co. Pvt. Ltd., 2010 (8) SCC 24. 170 Gagnon (1992). 171 Hart (1990). 168 Wallerstein

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to the institution of family and marriage. The Indian Courts are permitting to utilize ADR mechanisms despite DV. The Courts are taking a pre-mediation stand in DV and mediation cases, but policy regulation is required to check power imbalances. In the case of K. Srinivas Rao v. D.A. Deepa,172 the Hon’ble SC opined that mediation prevents escalation of bitterness between the parties, especially in matrimonial disputes. Around 10–15% of these disputes get settled and cases under Section 498A can be settled through mediation if there exit elements of the settlement but judges need to be careful that the erring spouse should not be able to get out of clutches of law by manipulating the mediation. Consent of parties must be taken before referring them to mediation along with setting a reasonable time limit so that the resolution of dispute is not delayed or misused by any one of the parties. Thus, in every ADR process, it should be kept in mind that the psychological factors responsible for atrocities against women are addressed. The Court always tries for reconciliation for which the husband may agree before the Court, but later, he may be back to his usual self.173 Once the ADR process is complete, there might be a flare up of dispute. To get complete advantage of the ADR process, women should be made aware of their legal rights. ADR functionaries and judges need to be more responsive and sympathetic towards womens’ rights and interest, especially in cases of DV. Their agenda should not be on compromising but on assistance and empowering of women by stopping their exploitation and help them rebuild their lives. ADR is promising modes of resolving matrimonial disputes, but it needs to upgrade its functioning by removing the inherent issues. For an informed decision, the education and economic empowerment of women are critical. It is helpful for women’s ability to judge each crucial factor concerning them, their related dynamics and then decide things for themselves. The style and role of the ADR practitioner are equally crucial. He should have the training to gauge the power dynamics to protect the vulnerable party; else, the process will not be one of self-determination.174 The success rate of mediation and counselling in India hence is promising, but these data or statistics are also indicating the percentage of female victims who have happily agreed to sacrifice their mental and physical peace in the name of protecting their family honour, the future of their kids and finally their sustenance.175 Marriage counsellors need to be aware of these legal complexities during negotiations. Women are suffering immensely with the functioning of Courts and for getting legal relief.176 Once these constraints are dealt with, then as against the adversarial system that does not provide a setting for women to raise their concerns the ADR will be encouraging.177

172 (2013)

5 SCC 226. (1997, p. 71). 174 Grillo (1991, p. 1603). 175 Patel and Sharma (2009, p. 83). 176 Available at: www.thehindu.com/features/metropolus/aimsversus-implimentation/article/424 1420 (Accessed on March 08, 2020). 177 Schneider (1986, pp. 590–607). 173 Mukherjee

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6.4 Screening Cases of DV and Power Imbalance With an increase in the number of matrimonial disputes, the overburdened Courts are utilizing the services of the ADR process. During the mediation process, both the parties communicate with each other, try to persuade and convince and agree to their respective position. The counselling and mediation process are provided as court-annexed programmes in India. Mediation is defined as a process involving intervention by an impartial and neutral third party who has no authoritative decisionmaking power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.178 Counselling is also an attempt by the professionally trained counsellor who as a third neutral and impartial person assists a person or persons to resolve the problem that troubles them in their interpersonal relationships with a focus on their relationship.179 Both the mediator and the counsellor throughout the proceedings try to ensure fairness and that party interacts and proceeds in the direction that would serve the parties’ common goals. But the presence of power imbalance more so because of DV could render the ADR process a dangerous proposition.180 As ADR practitioner, they need to bring in a certain degree of sensibility in their approach towards marital issues. The meditation process helps people to work out their own decisions. Family mediators’ primary responsibility is towards those who come to them. They are not agents of any moral crusade or political agenda. The whole process of mediation is a balancing act. Mediators need good balance to stay on the tightrope, managing the power imbalances and tensions which threaten mediation both internally and externally.181 Due to the disregard of gender justice, women are pressured to reconcile and return to the matrimonial home, even at the cost of defeating their human dignity, physical safety, and meagre economic rights.182 Often, when a woman who has faced physical abuse and made to leave the matrimonial home, files for maintenance under Section 125 of the Cr. P.C, an application for RCR is filed and a reconciliation offer is made to defeat their claim to maintenance. The counsellor’s role will be important in ensuring that a woman’s maintenance right is not defeated unless the offer materializes for which he can suggest the woman to keep her application for maintenance pending.183 Table 6.1 compares and demonstrates the significant limitations of the ADR process for women in the matrimonial dispute’s context. These feminist concerns posing a challenge to the foundation of the ADR process need to be acknowledged and dealt with through proper screening tools for making them truly gender just. The court-sponsored mediation and counselling programme is now available in India in almost every jurisdiction and runs as per the rules of the statute. Along 178 Moore

(2003, pp. 14–15). and Stone (1958, p. 59). 180 Perry (1994, pp. 318–330). 181 Parkinson (1997, p. 18). 182 Cobb (1997, pp. 340–421). 183 Flavia (2011, p. 303). 179 Mudd

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Table 6.1 ADR and considerations for and against gender justice Favourable factors

Non-favourable factors

Less costly and faster

Abuse of the process of law through costly trials makes financially vulnerable women severely compromise her stakes. Reconciliation can be used as a strategy to defeat the women’s just claims. It can be a futile exercise when ADR is used as a strategy to harass and delay economic entitlements of women

Informal process

Informality in marital disputes barters/dilutes legal rights of women. Women may not be able to negotiate her claims and may be made to agree to poor settlement

Third neutral person reduces animosity

The quality of the role played by the third neutral person is another aspect that needs to be researched and examined

Private and confidential processes

It may perpetuates gender-based inequalities to the detriment of women (patriarchy, bias, stereotyping) in case of lack of training and gender sensitivity on the part of the ADR practitioner

Self-determination and self-empowering processes.

No self-determination and empowerment. A negotiation with perpetrator who has subjected the women to DV and abuse is disempowering. The presence of various factors makes women vulnerable

Party control and satisfaction

Vulnerabilities may create injustice for women

Mutual agreement, consensual, mutual respect Not truly consensual outcomes or probably and avoiding blame coerced agreement due to economic vulnerabilities of women. It may prove to be a compromise and affirmation of crucial rights. Power imbalance due to fear exists Reduces tension, resolve spousal differences, address their emotional needs

Unequal bargaining power may lead to unfair agreement, bargaining of stakes due to unawareness, fear, shame, or poor opportunities under the process

Safe setting for airing of emotional issues

Victim of DV may feel endangered and unsafe leading to unjust outcomes

Win-win

One-sided negotiations

with this growth in ADR practice, feminists raise a concern that the presence of power imbalances along the disputing parties can affect the quality of the decision, especially for women. The battered women are already under deep psychological pressure and suffering created because the history of DV cannot be expected to collaborate with the batterer.184 In cases of an allegation of DV, domestic physical, 184 Zylstra

(2001, pp. 255–256).

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psychological and emotional abuse, alcoholism, and drug abuse makes it difficult to negotiate with the other party due to power imbalance. Unless battered women agree or after evaluation, it is not unsafe. However, under these situations, there is a need to have a regulatory supervisory body that will be specifically dealing with the issue of screening of cases concerning DV in a marriage.185 The parties often are not forthcoming and may try to hide it. In such a situation, it will be a task for the ADR practitioner to identify it, but this is required if ADR is to be utilized in cases with an allegation of DV for setting the rules during the process. The chances of this disparity among the couple are high in cases of history of DV. Screening is important to protect the DV victim during the ADR process and to ensure the physical and emotional safety and well-being interest of women and children.186 The ADR should prepare beforehand to deal with this phenomenon in terms of specialized training of family mediators, screening of all marital cases to determine if a case is appropriate for reference. By employing specialized techniques and procedures like a private caucus, shuttle mediation, or separate sessions, the chances of disparity in negotiation can be dealt with. It will also help the women to decide things privately without apprehensions. The power imbalance and safety of the parties must be the main consideration. For this, ground rules can be established beforehand detailing the areas to be permitted and denied for discussion.187 Screening can be done by a specific specially constituted body, by a mediator, counsellor by developing screening protocols. For screening purpose, various tools and mechanisms can be developed. For this sort of well-researched questionnaire, a schedule needs to be prepared for administering it to the parties for this evaluation. It can be done through a one-o-one interview, and then, things need to be substantiated with the help of the evidence put on record.188 All these evaluations will cumulatively help in providing a perspective and analysis of the potential factors that can be dangerous can be understood and the ways to tackle or reduce their effect on women and children involved. Once this initial exercise is complete in serious cases, then the parties can be referred along with a list of Dos and Don’ts. A cultural evaluation and appraisal must find a place in all these tools for achieving the best interventions. The screening can be done in separate private interviews with the utmost confidentiality. Some ethical standards must be developed that will allow uniform objective evaluation.189 A good example is a collaboration by the American Bar Association and the Association of Family and Conciliation Courts to develop the Model Standards of Practice for Family and Divorce Mediation in 2001.190 They are an ethical guideline, obligations, and code of conduct for mediators wrt. various issues. They do not carry 185 Perry

(1994, pp. 316–333). (1990, pp. 370–373). 187 Vestal Anita. (2007). Domestic Violence and Mediation: Concerns and Recommendations, Available at: http://www.mediate.com/articles/vestala3.cfm (Accessed on September 13, 2020). 188 Girdner (1990, pp. 367–372). 189 Fischer, Vidmar K. et al. (1993, 2124–2170). 190 Available at: https://www.mediate.com/articles/afccstds.cfm (Accessed on September 02, 2020). 186 Girdner

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any force of law and are voluntary in their application. The Model Standards are relevant from a feminist perspective as they lay detailed guidelines for dealing with DV. The standards deal with the self-determination aspect, free, and informed choices regarding process and outcome, to balance the power differences, etc., to name a few that have been adopted by various organizations. Among others in the context of DV, it deals with the training of mediators, screening for the existence of DV before the initiation of the mediation process, and to setting forth steps to ensure safety during the process.191 The standards include an opt-out prerogative in any action in which one party has perpetrated DV upon another party.192 Even the Family Mediation Service Code of Ethics and Professional Conduct 193 states that one of the purposes of screening at the intake session is to check out if violence is, or has been present. Where violence is alleged or suspected, mediators must discuss with the alleging party their wish to take part in the mediation process and provide them with information about the availability of support service. Where mediation does take place, mediators must uphold the principles of voluntariness of participation, fairness, and safety. Also, client safety must be ensured on arrival and departure. The commission recommends that a mediator or conciliator in a mediation or conciliation process involving a family law dispute shall obtain initial and further training in screening techniques to assess the appropriateness, throughout the mediation or conciliation process, of mediation or conciliation. In India, we need to work on guidelines about DV and its screening to regulate the process and ensure the safety and satisfaction of women. Thus, there is a need for streamlining an effective mechanism for screening that has sensitivity as one important parameter.

6.5 Conclusion This chapter evaluated the effect of various factors that affect the counselling and mediation process. It examined how the presence of deep-rooted thoughts and perceptions, societal biases, patriarchal approaches, and lack of sensitive redressal of disputes on the part of ADR practitioners while resolving matrimonial disputes affects the quality of the ADR process. Women face challenges as the attitudinal biases serve to reinforce the position of powerlessness in them and in realizing their rights. They are often advised to stay on in a bad marriage with greater emphasis on reconciliation only because society does not offer alternatives. Long-term protection, poor economic capacity, and the state’s responses look for solutions in a way that keeps the marital ties intact. A woman is put under pressure for consent and accommodate as she is less learned, less communicative, and less assertive. If agencies and authorities perceive that they are doing a great service by reconciling a dispute at 191 Standard

X-A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly. 192 Murphy and Rubinson (2005, pp. 59–60). 193 Family Mediation Service Code of Ethics and Professional Conduct (2002). Sections 5.20.

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the cost of a compromise of constitutional, legal and human rights of women, it will be injurious to their safety and dignity. The chapter questioned such attitudes and evaluated them and delved to find if the final settlements are voluntarily accepted or the asymmetrical power relations make it difficult for a woman to bargain well, compromise her stakes, and tolerate injustice. Thus, the ADR mechanism flourishes because it avoids rigidity and inflexibility which is inevitable in the litigation process. It provides a cheap, speedy, and less formalistic remedy to the aggrieved party. But, the institutional framework for providing ADR is not yet fully developed. Not many trained ADR practitioners who have consciousness about these feminist concerns are available. Prejudicial bias, power imbalance, stereotypical views, and values of authorities indulged in ADR find inroad in the process making women vulnerable. Power imbalances and past DV additionally strain women for which screening guidelines need to be framed. Thus, ADR should be gender-sensitive, and for this, a lot needs to be done to protect and promote equality and emancipation of women through ADR.

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Chapter 7

An Empirical Evaluation of ADR and Gender Justice for Women Facing Matrimonial Litigation—Evidence from Delhi

7.1 Interviews of Women, Counsellors, and Mediators The prime objective of this book was to develop evidence about the experience of women with the ADR process and if it leads to the desired outcome for them. It studies matrimonial dispute and the benefits of ADR, to find ways to develop ADR as a superior form of the dispute resolution process. The chapter evaluates the performance, efficiency and efficacy of ADR from women, mediator, and counsellor’s perspective.

7.1.1 Family Courts and Mediation Centres in Delhi The geographical site for this empirical study is FC and the mediation centres in Delhi. The FC is constituted under the Family Courts Act 1984. They aim to sort out family disputes in a congenial, supportive, and confidential way. The founding philosophy of the FC is to settle disputes following a conciliatory, speedy, non-adversarial approach and informal, simple procedure. Reconciliation proceedings conducted by the counsellors and judicial officers of the concerned Court settles disputes ranging from dissolution of marriage, judicial separation, restitution of conjugal rights, child custody, property disputes, or maintenance. But the preservation of marriage over gender justice for battered women is the criticized aspect. In 2009, the first FC was set up in Delhi. Some 21 FC are functional within the premises of various Courts in Delhi. The day-to-day proceedings are conducted in small rooms with no proper place for the parties to sit. Each day over 100 cases are lined up for hearing leaving the judges and counsellors with insufficient time to sincerely pursue the proceedings. The outer corridors are packed with clients, their family members, and lawyers appearing on their behalf. The overcrowded courtrooms

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8_7

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have hardly any space. Separate children’s room is attached with each FC. There is one judge and two counsellors associated with each Court. Among them, one of the counsellors is designated as a principal counsellor. Both the counsellors work under the judge’s guidance. After the initial hearing, parties are directed to appear before the counsellor for counselling about the dispute. A format of reference containing particulars of the filed case, its case number, reasons for the dispute, name of the counsellor, etc. is transmitted to the concerned counsellor. If the parties do not consent and reconcile, the counsellor suggests them to opt for a divorce by mutual consent. He will help the parties to amicably decide disputes related to maintenance, child custody, and property matters. The final document containing the terms of the settlement is prepared, both parties sign, and the counsellor countersigns it. Lastly, the counsellor will direct back the dispute for final disposal by the referral judge to passes a decree according to the terms of the settlement. The FC in Delhi takes the services of experts from various fields to deal with matrimonial problems. Whenever necessary and desirable, the centre makes available professional services of experts who along with the mediator assist in ensuring the best possible resolution to a dispute referred to it. The FC is usually run in small rooms that are packed to their capacity and have poor facilities. In the context of mediation, the Court-annexed Mediation programme started in Delhi District Courts in the first week of August 2005. There are six mediation centres located at Tis Hazari Courts, Karkardooma, Rohini Courts, Dwarka Courts, Saket Courts and Patiala House Courts, functioning in various district Courts of Delhi. These centres assist the parties in sorting out their disputes and differences without recourse to litigation. Reconciliation remains a basic idea. The Delhi High Court Mediation and Conciliation Centre instituted in May 2006 is named ‘Samadhan’. Disputes relating to matrimonial, construction, employment, industrial, intellectual property rights, banking and insurance and commercial disputes are dealt with by more than 300 qualified and experienced Mediators. Samadhan has on its panel, professionals like psychologists and psychiatrists to deal with child custody issues and other sensitive matrimonial disputes. The success rate of settled cases is high.

7.1.2 About the Study The data for this study was collected from various FC and Mediation centres located in Delhi. The doctrinal data indicates that with the increase in the interaction between people, disputes have increased. The data was collected through personal interviews using questionnaires prepared to elicit responses from women. In all about 200 samples and 20 case studies from the cases referred for counselling, mediation and conciliation were conducted, investigated, and discussed. The entire data thus collected was segregated, computed, tabulated, analysed and interpreted. A

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hundred women respondents were selected through random sampling for administering the questionnaire. Those women who have undergone mediation or counselling in a court-annexed setting were identified for this purpose. Women’s construction of ADR, matrimonial disputes and violence, and the role of ADR practitioners are evaluated. The second set of questionnaires gathers somewhat similar information from the 50 mediators and the 50 counsellors chosen for this purpose. Most of the interviews lasted for about 20–30 min. Twenty focussed case studies of women respondents again having experience with the mediation and counselling process (10 each) were conducted. To draw in-depth information on the ADR process and gender justice concerns judges, mediators, and counsellors were interviewed at length. Specific questions that relate to the women, their experience, and preparedness, what did they accomplish from the process were analysed. The questionnaire focussed on aspects like, if equal treatment was given to them during the process, opinion about the advantage and disadvantages of the process, and suggested changes to strengthen the overall functioning of the ADR process. The aim was to evaluate the women’s experience about procedures, quality of services, accessibility, and fairness of these institutions. Though the findings are based on small sample size, it gives a comprehensive view of the books subject matter. It will help understand the access to justice situation and ways to strengthen the services of these processes. The study should be interpreted in light of some considerations. The study is restricted to women only and lacks the male perspective that could have provided additional valuable insight into the process, their behaviour, how their behaviour impacts their partner, and their perception of the mediator’s interactions. An examination of male (partner) respondents perspectives would lend further valuable information about the appropriateness of mediation and whether modified procedures are likely to be effective. As the empirical study is conducted only in one metropolis (Delhi), the results cannot be generalized. Only small numbers of women respondents were interviewed so additional interviews would have allowed for a more in-depth evaluation. Though even with this small sample size, important trends in ADR’s were identified. Non-cooperation of the victims because of ignorance, lack of understanding and illiteracy while conducting the interviews was a major problem faced by the researchers. Women respondents were fearful that their identity could be divulged that might turn against them due to the misinterpretation of their responses. The researcher had explained the purpose of the research to the women respondents and answered all their queries. They participated and answered all the questions after being convinced about everything. It took nearly 30 min to complete an interview with each victim. The information should not be considered representative of all victims in these Courts, but rather suggestive of the areas which deserve attention.

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7.1.3 Interview Results 7.1.3.1 (A)

Analysis of Responses by Women

Profile of Women Respondents

A total of 100 women who have undergone counselling and mediation were interviewed from the mediation centre and Family Courts spread over Delhi. Fifty women respondents were interviewed from FC and fifty from mediation centres (Table 7.1). (i)

Age at the time of marriage

The basic profile of the women shows that they were married at a tender age. 67% of women respondents were falling within the 18–24 years of age bracket. 28% of the victims were 25–31 years old, four percent belonged to the over 31 age group, and Table 7.1 Profile of woman respondents (A) Profile of woman respondents Age at the time of marriage

Profession/occupation of women respondent

S. No.

Age

Percentage (%)

S. No.

Profession

Percentage (%)

1

Under 18 (minor)

1

1

Housewife

76

2

18–24 years

67

2

Business

3

3

25–31 years

28

3

Domestic workers

9

4

31 onward

4

4

Service

7

5

Unskilled worker/labour

5

Education level of the women respondents

Monthly income of women respondents

S. No.

Education

Percentage (%)

S. No.

Monthly income

Percentage (%)

1

Illiterate

9

1

Nil

79

2

Primary education

10

2

Less than Rs. 5000/-

11

3

High school

14

3

Rs. 5001–10,000/-

6

4

Graduate

60

4

Rs. 10,001–20,000/-

2

5

Post graduate 7

5

Rs. 20,000+

2

Religion of the women respondents

Duration of marriage of women respondents

S. No.

Religion

Percentage (%)

S. No

Duration

Percentage (%)

1

Hindu

82

1

Till 5 years

84

2

Muslim

11

2

5–10 years

12

3

Others

7

3

10 onwards

4

7.1 Interviews of Women, Counsellors, and Mediators

263

only one woman was below the age of 18 at the time of her marriage. Thus, a majority of these women were married early and obviously, weren’t mature enough to handle responsibilities and relations that come with marriage. They were not capable enough to deal with marital disputes that gradually led to the development of incompatibility over a while. (ii)

Educational Level

Since 67% of women were married between the ages of 18–24, early marriages deprive girls of the right to education and skills to prevent any form of exploitation in the marital home. If we consider their educational level, 9% were illiterate, 10% have completed their primary education, 54% were high school pass, 20% were graduates and, 7% were post graduates. There could be various reasons behind the low educational level of the women respondents. It could be due to socio-economic factors, direct costs, low expected returns, social restrictions, and the psychology that sending girls to school is a wasted expenditure that denies woman’s access to equality of opportunity and education. Studies have already proved that increasing women’s educational level is the key to improving their status and preventing exploitation. Once economically independent, women demand more voice in family affairs and also refuse to accept unnecessary dominance over them. Lack of education and dependence increases women’s insecurity and vulnerability and make them susceptible to exploitation and violence. (iii)

Religion

Women of almost all the religion are approaching the mediation centres and FC. The majority of the women (82%) were Hindus. Since Muslim marriage and divorce laws are self-serving, Muslim women approach these mechanisms for maintenance during the subsistence of marriage or after their divorce (11%). 7% of the women were from other religions. (iv)

Profession/Occupation

Most of the women respondents (76%) seeking state interventions were housewives, and less than one-third of them were involved in paid work. Only 7% were in services, and the rest of 17% of women respondents were engaged in the small-time business (3%), working as unskilled workers/labourers (5%) and domestic workers (9%). The majority of the women respondents did not take up any job after marriage. They cited several reasons for remaining unemployed, like restrictions from family, low level of education, and lack of knowledge and opportunities. Their economic dependence is restricted due to poor skills, education, and lack of support. Even the educated, employed and financially independent women mentioned facing a lesser degree of DV of different form and nature like mental violence. (v)

Monthly income

The income distribution of aggrieved women shows that two-thirds of the women victims did not have any income of their own. Those who are employed were earning

264

7 An Empirical Evaluation of ADR and Gender Justice …

low (less than Rs. 5000—11%; Rs. 5001–10,000—6%; Rs. 10,001–20,000—2%; Rs. 20,000 plus—2%). Lack of economic empowerment marginalizes women and makes her victim of various forms of violence. (vi)

Children

Marital disputes began in an early phase of women’s marriage. 57% of aggrieved women had children, and 43% did not have any child. Divorce can be of concern when children are involved. Keeping in mind the socialization process of women in Indian, the presence of children only facilitate marital stability. Despite violence for their children’s sake women may not want to leave the matrimonial home. The presence of children makes unemployed women further susceptible to DV. They hardly have any alternatives available outside, and they will not want their children to suffer emotional problems following parental separation and divorce. (vii)

Duration of Marriage (in number of years)

The first few years of marriage were found crucial for marital stability. 84% of the women respondents approached Court for their dispute resolution within the first five years of marriage (35% of these disputes arose within 1st year of their marriage, 38% within 2–3 years of marriage, and 27% approached the Court within 4–5 years of marriage). 12% of the couples had problems even after completing more than 5–10 years of their married life. Four percent were married for a decade, and despite having adult children are fighting the Court case. Over time, the frequencies of reporting matrimonial disputes decrease as women adjust to their life and destiny (Table 7.2).

Table 7.2 Women respondents stereotypes, savings, and assets (B) Stereotypes, savings and assets Status of savings and property S. No.

Savings and property

Percentage (%)

1

Yes

2

2

No

92

3

Very meagre

6

Response to stereotypes and prejudice S. No.

Stereotypes and prejudice

Yes

No

Don’t know

1

Preservation of marriage is absolutely essential

79

21

0

2

Women face problems in balancing home and career

75

24

1

3

Woman should not have sex before marriage

87

12

1

4

Women should not go out alone at night

76

24

0

5

Family is the safest place for woman

59

41

0

7.1 Interviews of Women, Counsellors, and Mediators

(i)

265

Status of savings and property of women respondents

The status of savings and property of women respondents was poor as they have almost negligent properties in their name. Around 92% had no money in their name; 2% owns some property, and 6% have very meagre savings and assets in their name. It is an important consideration because a woman’s restricted access to economic rights limits her financial independence. Studies already quoted confirm that there is a close relationship between economic dependence and the ability to leave an abusive relationship. Even though women are entitled to a share in the parental property, they never demand it fearing it will spoil their relationship with the natal family. She has no control over her Stridhan as it passes on to her husband and his family despite the DPA and framed rules mandating otherwise. The concept of matrimonial property is also not recognized in India. A woman neither gets any share of the property from her parents nor her in-laws. All these factors lead to women’s vulnerability, dependence on husbands, and increased chances of abuse. (ii)

Stereotypes and Prejudices in India

Gender roles and identities are learned within the family and get reinforced through the socialization process subsequently. These socially constructed beliefs and expectations regarding the roles of men and women in society are not at all neutral. The power relations and societal norms privilege men and suppress women marginalized. Gender stereotypes pervade male–female relationships influencing how members of each sex must behave. Women still think that the preservation of marriage is essential (79%). Emphasis is on the chastity of the woman, as the majority of the women respondents believe that women should not have sex before marriage (87%). Women fear being perceived as competitive and think that working women face problems in balancing home and career (75%). They believe that the homemaking role is a woman’s job and doubt a woman committed to her job. Women are socialized to be care-oriented and cooperative, while men are socialized to be autonomous and competitive. Women think that it’s not safe to go out alone at night (76%) and that family is the safest place for women (59%) (Table 7.3). (i)

Reason for Matrimonial Dispute

There are a variety of reasons that lead to matrimonial disputes. The data collected on the reasons for matrimonial disputes indicate the different facets of violence and abuse meted out to women by their spouses. Women respondents stated that they endure tremendous cruelty at the hands of their husbands and family members before they reached out for any help. Overall, about 55% of women reported experiencing at least one of the other abusive behaviour in their married life. The range and severity of violence in combination reflect that of the 100 women respondents, 95% complained of physical harassment by husband followed by 76% reporting mental and psychological harassments. Slapping was the most common act of physical violence inflicted on women respondents. 62% reported abuse from in-laws, 68% complained of dowry harassment as a cause of spousal abuse. While 27% of women complained about the extramarital affairs and unfaithful behaviour of their spouse. Adjustment problem

Adjustment problem

Harassment by in laws

Dowry demand

Extra marital affairs

Drug abuse/alcoholism

Sexual abuse

Barrenness/infertility/not giving birth to a male child

Incompatibility

3

4

5

6

7

8

9

10

Place of stay after matrimonial dispute

Harassment by husband: mental and psychological violence

21

46

9

60

27

68

62

79

76

Opinion on divorce

5

4

3

2

Woman should stay with her husband if he apologizes for his past misconduct

Woman is justified to leave matrimonial house if her husband slaps her

Woman should change her behavior to stop violence against her

Woman should tolerate violence to keep her family together

Women make every effort to save her marital bond

76

53

48

83

100

Women marriage and DV Yes

2

1

S. No.

Harassment by husband: physical violence

1

95

Reasons

S. No.

Percentage (%)

Marriage and domestic violence

Reason for matrimonial dispute

(C) Matrimonial disputes, domestic violence

Table 7.3 Women respondents opinion on matrimonial disputes, domestic violence

22

47

52

17

0

No

2

0

0

0

0

(continued)

Don’t know

266 7 An Empirical Evaluation of ADR and Gender Justice …

Divorce is a taboo and social stigma is attached

Concern for children

Fear of husband due to past violence

Family pressures and lack of community support

4

5

6

10

31

11

7

3

2

1

Sometimes

Solitary instance

Habitual

Frequency of DV

3

39

2

Percentage (%)

Financial dependence

Legal provisions of offence of DV

2

5

Awareness about laws concerning women

Fear of insecurity, isolation, loneliness

7

4

Family elders tried reconciliation

1

Neighbours, friends or colleagues

5

2

3

Family supports your legal action

S. No.

Self-acquired property

4

73

2

Divorce the only relief for you

Women stay in an abusive relationships/bad marriage

Parental home/natal family

3

8

1

Opinion on divorce

S. No.

Rented accommodation

2

10

S. No.

Frequency of domestic violence faced

Marital home

1

Percentage (%)

Reasons for staying in an abusive relationships/bad marriage

Staying after the matrimonial disputes

S. No.

(C) Matrimonial disputes, domestic violence

Table 7.3 (continued)

31

58

6

26

23

No (%)

5

3

92

Percentage (%)

23

37

92

74

49

Yes (%)

46

5

2

0

28

Don’t know (%)

7.1 Interviews of Women, Counsellors, and Mediators 267

268

7 An Empirical Evaluation of ADR and Gender Justice …

accounted for 79% of disputes; 9% reported sexual abuse; drug abuse and alcoholism accounted for 60% of violence, followed by reasons like barrenness/infertility/not giving birth to a male child (46%). 21% felt there were inherent problems in the marriage and that they were incompatible with each other. Women respondents were made the victim of all sorts of violence and abuse, illustrative of the disadvantages they suffer in these private spheres. Women gave reasons and excuses to justify DV and blamed their destiny. They tried their best to compromise with the situation by staying in a strained relationship due to their financial dependence and lack of alternatives. But when things became intolerable, they reached out for help. They faced humiliation and abuse but stayed within the marriage fearing non-acceptance from their friends, family, and community and blaming them for having broken the family. To a certain extent, this is because wifebeating is shunned as a non-serious issue by the natal family, community, and the state. The power dynamics in marital relations tilts in favour of men. Society accords superior position and privilege to men. Women bear it all because this is what they have experienced during their growing phase. They are socialized to tolerate it all passively for family’s sake. They never retaliate against spousal abuse as they lack the resources and courage to do so. (ii)

Marriage and Domestic Violence

Almost all the women respondent holds the belief that Indian women make every effort to save their marital bond (100%) even after facing violence. It is because divorce is against the established norms of society and tolerated with fortitude. Despite legal recognition of divorces, the stigma of being single women stop them from accessing legal remedies through state machinery. Apart from the stigma associated with divorce, they fear that they will not be able to sustain themselves. They were not confident of getting a job. The financial insecurity and lack of alternative space prevent them from taking any step against DV. Also, the notion of marriage being an eternal and indissoluble union makes women tolerant towards DV and to keep their family together (83%). They think that changing their behaviour will stop violence against them (48%) which is a myth. From early childhood, girls are oriented to not challenge the societal structures and to make every effort to keep the family unit intact. She is often not supported by her parents and siblings in her choice to leave her marriage despite constantly facing DV. Women responded that woman is not justified in leaving the matrimonial house if her husband slaps her (53%) and that woman should stay with her husband if he apologizes for his past misconduct (76%). It seems that after divorce woman feared condemnation and exclusion from society. (iii)

Place of stay after Matrimonial Dispute

It was found that after matrimonial disputes, women respondents were made to leave the matrimonial house without any support. A maximum number of women (73%) stated that their parents and natal family came to their rescue and support. Later their natal family supported them financially. Neighbours, friends or colleagues (7%)

7.1 Interviews of Women, Counsellors, and Mediators

269

also helped them during their crisis. As stated before only two percent of women respondents possess self-acquired property in which they stayed after a dispute. 10% continued to stay in their marital home and eight percent in the rented accommodation. Despite DV Act, few women chose to stay in the matrimonial home and though some returned after a brief period. (iv)

Reasons for staying in an Abusive Relationships/Bad Marriage

Women respondents gave many reasons concerning why they stayed in an abusive relationship and a bad marriage ranging from family honour and their children’s future till infliction had become intolerable. In response to the question a majority of the women respondents (39%) revealed financial dependence, (11%) feared their husband due to past DV episodes. They presumed that violence will escalate if they will take any legal action against them. Concern for children (31%), fear of insecurity, isolation, and loneliness (12%); botheration about the taboo and social stigma (7%); family pressure and lack of community support (10%). Lack of support systems and economic resources also keeps women in abusive relationships. Cumulatively, social stigma, shame, fear, lack of confidence, opportunity and alternative, lack of awareness about the legal system, and the legal costs involved make women reluctant to report incidents of violence. They blamed their destiny and showed eagerness to go back to their husbands if some assurance is provided in terms of changed behaviours. (v)

Frequency of Domestic Violence faced

Around 92% of the women reported that their husbands were regularly indulging in DV against them. Only three percent stated that it was a solitary instance, and five percent reported that it’s only sometimes that their husband is violent. (vi)

Opinion on Divorce

49% of the women responded that divorce is the only relief for their present mental tension. When asked if their family supports their decision of initiating legal action, they reported having already exercised all the options, but the husband is not willing to change. They said that though the family elders tried reconciliation between the parties, nothing changed (92%). Once the legal action is started, the family members supported them (74%). Commonly women were unaware of the beneficial laws and legal safeguards concerning them (58%). They are not aware of the ingredients of DV, one of the important and beneficial legislation concerning women (46%). Thus much remains to be done in this regard (Table 7.4). (i)

Major Impediments in Women’s Access to Justice

There are many impediments to women’s access to justice. They don’t have information about their entitlements and resources to access justice (12%). Around 30% opined that legal procedures and filing complaint is a complex process. Other impediments in women’s access to justice include the availability of resources in terms of finance (23%). Women responded facing financial issues and not having enough money to fight their cases. They had to financially depend on their parents. Several

Limited options outside marriage

Legal procedures are complex

Stigma associated with the legal machinery

Indifferent legal machinery

Lack of resources/finance

3

4

5

6

10

Percentage (%)

About mediator/counsellor

S. No.

Informed about mediation/counselling?

S. No

Atmosphere is encouraging

Posters on the rights of women were displayed at the centre

Staff treated me with sensitivity, courtesy and respect

Have a helpdesk for assistance

Opinion about mediator/counsellor

5

4

3

2

Adequate facilities for seating, drinking water and sanitation

Source of information regarding mediation/counselling

23

16

9

30

1

2

12

Lack of information about legal rights

1

About centre

S. No

Impediments in women’s access to justice

S. No

Percentage (%)

Opinion about mediation/counselling centre

Major impediments to access to justice

(D) Women, access to justice and ADR

Table 7.4 Women respondents on access to justice and ADR

Yes

55

19

46

36

88

Yes

No

47

69

52

57

9

No

(continued)

Don’t know

8

12

2

7

3

Don’t know

270 7 An Empirical Evaluation of ADR and Gender Justice …

Advocate

Judge

Police

NGOs

Heard of other cases from relative, friends or colleagues

1

2

3

4

5

(D) Women, access to justice and ADR

Table 7.4 (continued)

9

8

16

35

32

I had to wait for long hours before 90 each hearing of the case

7

41

Empowered and encouraged me to come up with their own solutions

6

63

39

51

49

28

Conducted each session properly and impartially

Gave enough time

Informed me about my rights wrt divorce, free legal aid

Understood issues and empathized with my feelings

Explained mediation process effectively

5

4

3

2

1

10

59

44

59

49

44

68

0

0

3

2

0

7

4

7.1 Interviews of Women, Counsellors, and Mediators 271

272

7 An Empirical Evaluation of ADR and Gender Justice …

women victims complained that it is difficult to visit the Court regularly. Around 10% of the women opined that they have limited options outside marriage. Stigma is associated with the legal machinery that makes women fear approaching police and the Courts (9%) who are indifferent (16%). The functioning of these enforcement agencies and inherent constraints can be blamed for this general opinion among people. (ii)

Source of Information Regarding Mediation or Counselling process

Women respondents were informed about the Mediation and Counselling procedure by Judges (35%) and Advocates (32%). Other sources of information were NGOs (8%), relative’s friends or colleagues, or heard of other such cases (9%). Police (16%) was also one of the sources of information about the process of Mediation and Counselling. The media is publicizing these processes and institutions. (iii)

Average Number of hearings before the Mediator or Counsellor

57% of the women stated that they appeared one to five times before the Mediator or Counsellor, 35% of women appeared six to ten times, and only eight percent appeared 11–15 times. The majority of the cases had hearings almost every month. (iv)

Opinion about Mediation or Counselling Centres

58% of the women respondent felt that the infrastructure of the centres was inadequate as proper facilities for seating, drinking water, and sanitation were not available. Crèches are non-functional where they could leave their children while appearing for the proceedings. The help desk for women’s assistance was available in the centres (36%). 48% of the women felt that staff treated them with sensitivity, courtesy, and respect. Sufficient posters were not displayed at these centres for apprising women about their rights (69%). Women respondents gave a mixed response regarding the atmosphere of these centres from being encouraging (45%) to be not so (47%). (v)

About Mediator/Counsellor

68% of women responded that they did not know what to expect from the process, how the sessions would unfold, and what kind of support they might expect from the mediator or counsellor. Enough information was not provided about the process to make an informed decision. 49% of the women felt that the mediator or counsellor understood issues and empathized with their feelings as 44% said that they did not felt that sort of connection. There was a mixed response on if the mediator or counsellor informed them about their rights during the process. 57% were satisfied with the proper and impartial conduct of the session by the mediator or counsellor. 41% felt that they were empowered and encouraged during these sessions. 39% felt that enough time was devoted to the process by the mediator or counsellor as against 59% who felt otherwise. Women criticized the process as they had to wait for long hours before each hearing. Busy mediator or counsellor and advocates prioritize their matters lined up every day and once they are free from these cases they come to the mediation centre.

7.1 Interviews of Women, Counsellors, and Mediators

273

At the centre, they try to finish off the mediation or counselling matters hurriedly, without devoting enough time to the issue at hand. Women reported pressurization by some of the mediators for settling their dispute, even at times to their disadvantage. The working of the counselling centre was far better as counsellors were found devoting a great deal of time to every case as compared to the mediation process though the infrastructure of the mediation centre is far better (Table 7.5). (i)

(ii)

(iii)

Advice given by Mediator or Counsellor to Women Respondent’s Mediator or counsellor is expected to be neutral and impartial, but personal biases creep into their work. Adjustment and tolerance are the gender-specific virtues imposed on women respondents. 6% mediator or counsellor advised women respondents to adjust as not many will be interested in marrying a divorcee; 32% for the sake of children; 29% because they have no economic independence; 15% because our society is gender-biased and 18% advised to tolerate as their husband merely slapped. Women respondents felt that often the mediator or counsellor advised them to particular outcomes (maybe because they want to show disposal of cases). The reconciliation that may not always be the best solution and may even be a risky decision. The husband may agree for reconciliation before the Court but outside he may behave in a contrary manner. It is suggested that a certain variety of cases are inherently not fit for these processes and the only alternative remedy left with the women is divorce. Such cases should be excluded from the mediator or counsellor process. Mediators who are dealing with conflicted couples need to be aware of their feelings about gender roles, power, and violence to perceive women’s issues objectively. Rather than randomly telling women to adjust, effort should be directed to know her position. Opinion about Mediation or Counselling process 60% of women participants were satisfied with the mediator or counsellor process and its outcome. 55% replied that they will recommend mediator or counsellor to others. Around 90% opined that mediation or counselling process is complex, and it is essential to consult a lawyer before initiating legal proceedings. Advocates assisted women respondent and their husbands. The majority of women were not able to understand what was happening in their cases (68%). Around 48% felt that their opinion was regarded in every session. Shortcomings of Mediation or Counselling To enable women litigants to disclose their issues without any inhibitions, it is necessary to make them feel comfortable during these processes. 32% of the women responded that the lack of women mediator or counsellor and judges in the Family Courts and mediation centres is one of the shortcomings of these institutions. Women personnel were reported to be sensitive and of empathizing well with aggrieved women’s situation. Around 22% of the women complained that there was crowding at the mediator or counsellor centres. At times mediator or counsellor put pressure to settle the case (24%). 9% of the women stated that there was no security at the centre and they felt

Adjust for the sake of children as they need their father’s love as well

Adjust because you have no economic independence

Adjust because our society is gender biased

Tolerate as your husband only slapped you

2

3

4

5

Overworked staff and crowding

Mediator/counsellor put pressure to settle the case

Lack of security at the centre

Lack of gender sensitivity in FC’s/district Courts

3

4

5

13

9

24

22

5

4

3

2

1

2

32

Lack of women mediators/counsellors and judges

1

81

79

53

48

Yes

48

90

55

The mediator/counsellor identified 97 about the past DV between parties

At times cases are dragged which is all the more frustrating for the women

It is a sheer wastage of time if reconciliation fails

Due to past DV women at times negotiate an agreement that may not meet their needs

Parties are satisfied with the compulsory reference to mediation/counselling

General opinion about mediation/counselling

General opinion about mediation/counselling S. No.

My opinions was considered in every session

One should consult a lawyer before attending mediation/counselling

Will recommend mediation/counselling to others

Shortcomings of mediation/counselling

Percentage (%)

60

Yes

Was not always able to understand 68 what was happening?

S. No.

5

4

3

2

Experience in general was satisfactory

Shortcomings of mediation/counselling

18

15

29

32

1

Adjust because not many will be interested in marrying a divorcee

1

6

S. No.

Mediation/counselling process

Opinion about mediation/counselling process

Advice by mediator/counsellor

S. No.

Percentage (%)

Advice given by mediator/counsellor

(E) Women’s opinion on mediation and counselling

Table 7.5 Women respondents opinion on mediation and counselling

3

19

19

45

48

No

52

10

43

32

39

No

0

0

2

2

4

Don’t know

0

0

2

0

1

Don’t know

274 7 An Empirical Evaluation of ADR and Gender Justice …

7.1 Interviews of Women, Counsellors, and Mediators

(iv)

275

intimidated by the behaviour of their husbands and in-laws. 13% of the women felt that there is a lack of gender sensitivity in mediator or counsellor. General Opinion about Mediation or Counselling Several factors operate to the disadvantage of women when they are negotiating with their partners. It includes the history of past violence, economic power, and sex-role ideology. 48% of the women stated that they are satisfied with the compulsory reference for mediation or counselling. 53% of the women responded that the past DV makes them uncomfortable in negotiating stakes with their husbands, and they agreed for arrangements that were not as per their needs. Women felt frustrated when reconciliation failed after months of their efforts (79%). At times cases are dragged (81%). The mediator or counsellor enquired and identified the past DV between parties (97%). Spats were personally witnessed during the Court visits (throwing a slipper (chappal) on the aggrieved women by the accused husband, slapping of women by her sister in-laws). Formal protection against allegation of past and future acts of violence is required. The mediator or counsellor must address violence during these sessions.

Benefits Some of the benefits reported by the women respondents were that women are encouraged to speak during the process, vent out their emotions, and provided hearing opportunities. It was stated that the freedom to leave the process whenever they want was an advantage of the process. They felt that these processes help the spouse to focus on the needs of children and in restoring communication. The process was appreciated for being informal and confidential. Suggestions Women respondents suggested that mediator or counsellor should be more sympathetic towards them, Crèche facility should be made proper, proper drinking water facilities, and hygienic toilets should be maintained. Prompt orders must be passed on interim monetary and residential arrangements should be made until the disposal of the case. Settlements must be binding so that the tendency of wasting time is curbed.

7.1.3.2 (i)

Analysis of Responses by Mediators/Counsellors Profile of the Mediators/Counsellors In FC, female counsellors were more in number as compared to male counsellors (15 males:85 females). In the mediation centres, as against females, there were more males (37 females:63 males) who were conducting mediation process.

276

(ii)

(iii)

(iv)

(v)

7 An Empirical Evaluation of ADR and Gender Justice …

Number of times Parties Appear for Reconciliation Regarding the number of times parties appear for reconciliation, the counsellors mentioned that it varies from case to case and client to client. In the majority of the cases, it gets resolved within three months (53%). 45% were carried on for about four to six months. Only 2% of cases went beyond seven to nine months. Some may even get resolved in one sitting. It was interesting to note that (similar to the response of women respondents) majority of the mediator or counsellor also mentioned that they devote the first few sittings to develop a rapport with the client. It is only after this initial rapport building that parties share personal details with the mediator or counsellor. Women who are withdrawn or scared take a little longer to open up. Personal details of the parties are taken by the counsellors in prescribed pro forma (only in cases of counselling) that are kept confidentially. The mediator does not take any details and merely writes the outcome of a particular hearing. Response about Women Stereotypes and Prejudice in India Even mediator or counsellor has limited notions of the role of women in society. A whopping 72% of the mediator or counsellor felt that preservation of marriage is essential even if there is violence in the marriage, 47% believed women should not go out alone in the night, 53% felt that women should not have sex before marriage. Compared with women respondents, mediator and counsellor were more conservative in their outlook. Stereotypes were attached to the responsibilities of women; women face problems in balancing home and career (65%). As a product of the patriarchal system, mediator or counsellor was a source of subtle gender discrimination. Response about Women, Marriage and Domestic Violence 95% of the mediator or counsellor stated that Indian women make every effort to save their marital bond. Only one-third of the mediator or counsellor responded that woman should tolerate violence to keep her family together (29%). It is again a wrong notion that women should change their behavior to stop violence against her (34%). The majority of the mediator or counsellor stated that a woman should stay with her husband if he apologizes for his past misconduct (93%). These responses could be because the mediator or counsellor is aware about the peculiar constraints of Indian women who in majority of the cases is dependent on others for their sustenance. Response about Mediation or Counselling and Conventional Courts Mediator or counsellor is specialized modalities for dispensing justice to women. They are a better alternative than Courts for most women. 42% mediator or counsellor reported that women benefit from these mechanisms as they are more sympathetic towards females. Other advantages of these procedures include; it is cost-effective and time-saving (15%), conducted by a trained person (26%), maintains privacy and confidentiality (11%). Overall these institutions were reported to be favouring women as they are informal, conciliatory, and are non-litigation in their approach. Through them, women can avoid Courts and public humiliation during the Court process. Though underlying emotional and psychological issues between parties are crucial

7.1 Interviews of Women, Counsellors, and Mediators

(vi)

(vii)

(viii)

277

for the permanent acceptable settlements, they were given less consideration (6%). The response of Mediator or Counsellor about Mediation or Counselling Only 12% of the mediator or counsellor felt that the worst of reconciliations is better than the best of divorce. Clinging to the psychology of sustaining marriage or maybe to showcase disposal. The mediator or counsellor reported that they received complaints from aggrieved women about the legal aid lawyers (49%), their attitude of non-cooperation, and the tendency of extracting money. It is ironic to find that an appropriate number of protection officers, service providers, and shelter homes are not available (86%). It is encouraging to know that women from all communities are approaching these centres (44%). Despite all, bulk of mediator or counsellor felt that mediation or counselling is an effective process within the existing legal framework (93%) (Table 7.6). The response of Mediator or Counsellor about working of Mediation or Counselling Women recommended that they should be allowed to bring an advocate (or friend) in the mediation or counselling process (54%), whereas mediator or counsellor felt that lawyers are interference in the entire process. The majority of them responded that the time devoted to these process is sufficient enough (97%) and in their perception parties are satisfied with the outcome of the process (96%). Though the response of aggrieved women was different, and they were not that happy with the decisions. 67% stated that followup after the completion of the process is done in the form of telephonic conversation and personal meetings arranged later on at the centre. However, these follow-ups were done by the counsellors only. Some of the counsellors stated that for up to six months they call up their women client for ensuring smooth relations between parties. 81% responded that the success rate of reconciliation due to mediation and counselling is satisfactory. Responses about why women stay in an Abusive or Bad Marriage. Divorce is perceived as a threat to stable Indian families. It may lead to divided families, vulnerable children, dilated and expensive legal battles, resentment, hostility, bitterness, and economic hardship. According to a mediator or counsellor, financial dependence (34%) is a big reason why women get stuck in an abusive relationship. Concern for children holds back women to tolerate violence (23%). Together they constitute around 57% of the reason why women stay in an abusive relationship. 14% fear insecurity, isolation, loneliness, and 5% fear their husband due to past violence. Perception of divorce as a taboo and social stigma attached (16%), family pressures, and lack of community support (8%) also adds to the woes of women. The reasons for staying in an abusive relationship are embedded in social norms and beliefs regarding marriage, family, and violence. The mediator or counsellor stated that women might cling to the hope that their men will change.

Women face problems 65 in balancing home and career

Woman should not have sex before marriage

Women must share blame for violence in marriage

Family is the safest place for woman

3

4

5

5

0

1

The worst of reconciliations is 12 better than the best of divorce

Yes

86

No

Indian women make 95 every effort to save her marital bond

About mediation/counselling

1

Don’t know

6

11

S. No.

No

Underlying emotional and psychological issues between parties are tackled

Privacy and confidentiality

Conducted by a trained person 26

15

Response of mediator/counsellor about mediation/counselling

Yes

5

4

3

It is cost effective and time saving

Women marriage and DV

0

0

3

2

42

S. No

57

53

44

0

Women benefit and it is more sympathetic towards females

Mediator/counsellor on marriage and DV

43

47

53

35

28

1

2

72

0

Preservation of marriage is absolutely essential even if there is violence in the marriage

%

1

Mediation/counselling is better than conventional Courts

S. No.

Don’t know

Mediator/counsellor about mediation/counselling and Courts

No

Women stereotypes and prejudice in India

S. No

Yes

Mediator/counsellors on women stereotypes and prejudice

Table 7.6 Response of mediator/counsellor on women, domestic violence, Courts, and ADR

2

(continued)

Don’t know

278 7 An Empirical Evaluation of ADR and Gender Justice …

Woman should change 34 her behavior to stop violence against her

Woman should stay with her husband if he apologizes for his past misconduct

3

4

93

Woman should tolerate 19 violence to keep her family together

2

Table 7.6 (continued)

1

66

81

6

0

0

Women from all communities are approaching these centres

Mediation/counselling is effective within the existing legal framework

5

Appropriate no of PO/service provider/shelter homes are available

You get complaints from women about the legal aid lawyers?

4

3

2

93

44

14

49

7

53

86

51

0

3

0

0

7.1 Interviews of Women, Counsellors, and Mediators 279

280

(ix)

(x)

(xi)

(xii)

7 An Empirical Evaluation of ADR and Gender Justice …

Major Impediments to Women’s Access to Justice The data reflects that major impediments in women’s access to justice include the availability of resources in terms of finance (27%), lack of access to information and awareness about legal rights (34%), and legal procedures being complex (13%). It confirms the fact that there is a lack of legal literacy and awareness among women. For the majority of women, the law is a mysterious and complex subject which they failed to understand. It is believed that limited options outside marriage (19%) may be a problem for women in accessing justice. The stigma associated with the legal machinery is less (5%), and only two percent of mediator or counsellor felt that Courts and police station processes are indifferent towards women. Focus and Primary Aim during Mediation or Counselling Mediation or counselling connotation ranges from problem-solving, judging, and helping the clients. The mediator or counsellor stated that their prime focus during the process is to improve relations between parties by resolving issues (29%) by telling women to be a little bearing and understanding (26%). The other aims during mediation or counselling are to reconcile disputes and reunite parties (20%); 18% of mediator or counsellor stated that children are a consideration, and they need their father’s love as well. Only 7% of the mediator or counsellor focused on empowering women by developing their unique self and potential through psychological counselling (Table 7.7). Opinion on Mediation or Counselling and Domestic Violence 98% of the mediator or counsellor felt that matrimonial disputes are suitable for mediation or counselling. 48% responded that training for gender sensitivity is imparted to the people involved in mediation or counselling. 96% felt that despite domestic violence, the prime focus is on reconciliation between the parties because the legal provisions mandate that for children’s sake, a marriage must be preserved. 69% felt that domestic violence introduces a power imbalance between parties rendering mediation or counselling inherently unfair. 63% felt that during these processes, the abused women are not in a position to express and negotiate their needs and interests. 69% felt that due to DV the abuser use violence, threats, or emotional abuse to control and intimidate the women. Mediator or Counsellors Opinion on Shortcomings of Mediation or Counselling Overworked staff and crowding (30%) were reported as important shortcoming of these institutions. 28% felt that there is a lack of awareness about the benefits of settling the dispute through mediation or counselling. Yet another 23% opined that referral practices (to refer the case for mediation or counselling) in the Courts is a shortcoming. Factors that are necessary to consider for an appropriate reference are the current fear of violence by a party, power imbalance, attitudes, knowledge, and skill of the legal practitioner. Only 6% believed that some mediator or counsellor put pressure to settle the case, and only one percent felt that there is a lack of gender

Parties are satisfied with the way and 96 final outcome of mediation/counselling

Follow-up are done after mediation/counselling/orders are delivered

Success rate of reconciliation due to mediation and counselling is satisfactory

3

4

5

Financial dependence

29

2

1

2

14

Telling women to adjust for children’s sake as they need their father’s love as well

To improve relations of parties for resolving issues

18

29

(continued)

Percentage (%)

Fear of insecurity, isolation, loneliness

Focus/primary aim during mediation/counselling

1

2 27

5

13

19

S. No.

Courts and police station process are indifferent towards women Lack of resources/finance

Stigma associated with the legal machinery

Legal procedures are complex

Limited option outside marriage

Mediator/counsellors aim during mediation/counselling Percentage (%)

5

4

3

2

Why women stay in an abusive marriage?

3

0

2

0

S. No.

16

33

2

3

Lack of 34 information/awareness about legal rights

Mediator/counsellor about why women stay in abusive marriage

81

67

97

1

The time devoted to each mediation/counselling is enough

0

2

46

Advocates should be permitted in the 54 FC’s/during mediation

Percentage (%)

1

Focus/primary aim during mediation/counselling

Major impediments to women’s access to justice Don’t know

S. No.

No

Working of mediation/counselling

S. No.

Yes

Mediator/counsellor on working of mediation/counselling

Table 7.7 Response of mediator/counsellor on working of ADR process, impediments to access to justice, and their role

7.1 Interviews of Women, Counsellors, and Mediators 281

Concern for children

Fear of husband due to past violence

Family pressures and lack of community support

4

5

6

8

11

31

Divorce is a taboo and social stigma is attached 7

3

Table 7.7 (continued)

5

4

3

Reconcile dispute and reunite parties

Telling woman to be a little bearing and understanding

Try to empower women

20

26

7

282 7 An Empirical Evaluation of ADR and Gender Justice …

7.1 Interviews of Women, Counsellors, and Mediators

(xiii)

283

sensitivity in the mediation or counselling process (as against it women respondents stated 13%). Mediator or Counsellors General Opinion about the Mediation or Counselling 26% of the mediator or counsellor believed that parties are satisfied with the compulsory reference to mediation or counselling. They said that cases were more likely to settle if parties entered mediation or counselling at judge’s initiative or voluntarily requested. 56% responded that due to past domestic violence, women at times negotiate an agreement that may not meet their needs and legal entitlements. 20% felt that it is a sheer wastage of time if reconciliations fail. 7% felt that at times cases are dragged which is all the more frustrating for the women as against 93%, who thought that any effort at mediation or counselling will be useful in the future Court proceedings between the parties (Table 7.8).

Benefits As per the mediator or counsellor, ADR offers many benefits and their compliance is greater than adjudicated agreements. The process of mediation or counselling is less costly as settlements can be made within a short time. Also, very few mediations or counselling agreements return to Court, thus proving that these settlements complied with and parties are satisfied with the outcome. Some of the other advantages of mediation or counselling include flexibility, less complex procedures, timely settlement, confidentiality, a decrease of financial burden, sustain relations and increased likelihood of dispute settlements. Suggestions The suggestions included the removal of the negative public perception of ADR and more awareness creation. Sensitization of the general public about the benefits of ADR and improving their referrals remain an important agenda. Infrastructure needs to be improved. Facilities like children’s complex and sanitation provisions must be proper. More authority should be given to the functionaries and the procedures.

7.1.4 Focused Discussion with Judges Mediators and Counsellors Mrs. A (Judge) She deals with many matrimonial cases every month in her FC. As per her, the FC aims to amicably resolve several connected parties dispute by divorce or settlement. She discussed her style and strategy of dealing with matrimonial disputes and reconciliation. In case the parties come to her with a deed entered between them at CAWC she doesn’t send them for counselling again because it will be a complete waste of time as by now parties must have made up their minds. She stated that advocates

Despite DV, prime focus is on reconciliation between the parties for the sake of children and for preservation of marriage

DV introduces power imbalance between parties rendering mediation/counselling inherently unfair

In mediation/counselling abused 63 women are in a less powerful position to represent their needs and interests during negotiation

Due to DV the abuser may use violence, threats or emotional abuse to control and intimidate the women

3

4

5

6

69

69

96

48

29

31

28

3

52

2

6

3

1

0

6

5

4

3

2

1

Gender sensitivity trainings is imparted to the people involved in mediation/counselling

0

2

98

2

Matrimonial disputes are suitable for mediation/counselling

1 30

12

Referral practices (to refer the case for mediation/counselling) in the Courts

Lack of gender sensitivity in FC’s/district Courts

Lack of awareness about benefits of settling the dispute through mediators/counsellors

23

1

28

(continued)

Percentage (%)

Some mediator/counsellor put 6 pressure on parties to preserve family despite violence

Overworked staff and crowding

Lack of women mediators/counsellors and judges

Shortcomings of mediation/counselling

S. No.

Don’t know

Shortcomings of mediation/counselling No

Mediation/counselling and DV (DV)

S. No.

Yes

Mediator/counsellors opinion on mediation/counselling and DV

Table 7.8 Response of mediator/counsellor on the general functioning of mediation and counselling

284 7 An Empirical Evaluation of ADR and Gender Justice …

Due to past DV women at times negotiate an agreement that may not meet their needs

It is a sheer wastage of time if reconciliations fail

At times cases are dragged which is 7 all the more frustrating for the women

The mediator/counsellor identifies the 100 past violence between parties?

2

3

4

5

20

56

26

Parties are satisfied with the compulsory reference to mediation/counselling

1

Yes

Do you think in mediation/counselling?

S. No.

General opinion about mediation/counselling

Table 7.8 (continued)

0

93

78

41

69

No

0

0

2

3

5

Don’t know

7.1 Interviews of Women, Counsellors, and Mediators 285

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are allowed inside the Court as the HC has permitted them because litigants are not legally literate. Some advocates may help settle the disputes, but when stakes are high they may lead to delays or show reluctance. She informed that she received complaints about some Legal aid lawyers who demand money from the women litigants. So she always makes it a point to inform the parties in advance that they are not supposed to pay anything to the lawyers provided by DLSA. As per her, children are a concern while deciding things during the settlement process of counselling and mediation. She stated that social stigma related to divorce is a fading principle now as only elders in a family put these thoughts in the young generation. If there is no child involved in the process, not much effort is required as parties can freely decide things for themselves though she always tries her best efforts in every case. She thinks that it is best to reconcile differences that are bound to exist in every marriage. She feels that at times the allegations of DV are exaggerated and women need the right kind of interventions. There is no criterion or standard to judge and decide the central issue bothering parties until complete probing. If the dispute is due to alcoholism, she suggests the parties consult the detoxification centre. If it is due to distant marriage, she helps them in finding the possibilities of setting up a matrimonial home that will suit the parties’ common need. Even after making all these efforts if the parties decide that they can’t pull it with each other, she suggests them to go for an amicable divorce, settles financial issues, and then decides the case on merits. In the case of repeat complaints of DV cases, she tries to find the root cause of the dispute and might not suggest reconciliation. Parties have a rigid attitude in cases filed for divorce by mutual consent, as they have already decided for divorce. While dealing with a dispute, the focus during separate and joint sessions is to find the possibility of settlement. There is no fixed formula for how much time she will devote to each counselling session but she tries to devote at least two hours for each reconciliation hearing. She opined that counsellor do force parties to reconcile, as they want to show some disposal on their part and because the FC rests on the basic idea of promoting family and marriage institution. In a contested dispute, social and family pressure make it a time-consuming process. If a woman wants a separation, she files for maintenance but men don’t want to pay so in such cases, she tries to empower the woman. Women get ready for reconciliation despite the DV relationship because they find it difficult to go on without male support. If the parents are supportive and provide her financially and emotionally, it may be easy for her to decide on divorce. Else their general attitude is to forgive and continue in a violent marriage as their children get their food and have a roof over their head. She suggested that this mental setup of the litigants needs to be changed. She feels time constraints as many cases are lined up each day for resolution in her Court. She feels that there should be some more orientation and simulation about the life realities and a couple must be taught about good parenting. She opined that seasoned judges who are sensitive in their approach and dedicated to saving the institution of marriage should be involved in the process. Gender sensitivity training and information about counselling principles in practice should be imparted to FC counsellors and judges. As final consent might be withdrawn at any time, even after

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investing so much time in the entire process, the settlement entered between parties must be made binding on the parties. For her, the counselling centres and FC are doing good work of reconciling the parties, saving the marriage that is an important institution of the society. Mr. B (Judge) He is a mediator trainer. According to him, counselling is close to mediation, but one develops a close relationship with the party in the counselling process. In mediation, distance and neutrality are maintained but friendly warmth is shown. Without suggesting anything as a mediator, he assists parties in resolving the dispute. He stated that mediation is a voluntary process and parties have the complete right to self-determination. They decide everything for themselves and we are never imposing or are judgmental. In case the parties are less empowered, we may sometimes give subtle suggestions (mediation is supposed to be facilitative but Indian mediation is more of an evaluative mediation). MCPC is the regulatory body for mediation programme across India. The government has granted enough funds for popularizing the mediation process, and many programmes are regularly conducted for training and awareness. A 40-h mediation training program is prescribed for mediators who learn about the process with the aid of audio videos, role-play, hypothetical cases resolution through coaching and mentoring. Each state has constituted its panel of mediators comprising of judicial officers and advocates. Before empanelment as a mediator, the criterion of a 50% successful mediation settlement rate for an individual mediator is prescribed. Only competent people are empanelled who have the knack to conduct the process well. To sustain faith in the mediation process panelled mediators are kept under constant check through feedback from the parties. A mediator who fails to maintain a certain level of mediation standards is de-empanelled. There are different payment slabs for successful mediation and attempted but failed mediations. He said that though academically the settlements are final and binding in practice, till the Courts pass a decree and the parties don’t retract back it is not regarded as binding. Lawyer’s role is important during this process, and they can participate in the session but they sometimes thwart the proceedings. Lawyers are required in case parties fail to decide things for themselves and in case of some technical problems. There is no truth in the allegation that the mediation process does not offer any incentive to advocates. There is no evidence to prove that mediation has dented law practice or the volume of work of advocates. It is indeed a boon as lawyers can prevent spending years on a particular case and resolve it in a minimum period. He suggested that there is a need to change the psyche of the lawyers. He believes that the timely resolution of disputes will generate faith in common people about the judicial system. They will be motivated to come to Courts for redressal that will increase case filling and more work for lawyers. Besides, mediation is different in theory and practice. There are problems in the conduct of the process. There are reports that the mediator pressurizes parties to settle disputes by telling them about the possible negative outcomes. The psychology on

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the part of the lawyers and the parties that they can retract back from the MOU is the biggest impediment of the process that wastes the invested time and efforts. Mr. C (Mediator) He is an advocate and a trained mediator. Initially, he had undergone training through classes wherein mediators from India and abroad, lawyers, and judges shared their views on the mediation process. Then he underwent one-year training with an already empanelled mediator. As a co-mediator, he heard fifteen matters, out of which at least five must be settled. He was empanelled as a mediator on the completion of this process. He opined that the mediation centre in the Delhi HC has a fantastic infrastructure complete with counsellors and crèche facilities. Mediation cases are marked by the HC judges that then goes to the head of the mediation centre. There is an overseeing committee in every mediation centre that comprises judges supervising the entire functioning. Then there is an organizing committee that consists of a secretary and two joint secretaries. This committee takes care of the day-to-day work and the empanelment of mediators. There are more than 300 mediators empanelled with the mediation centre. Mediation can be a settled mediation in which full payments are granted to the mediators for their efforts; it can be unsettled mediation in which some amount is paid. The last variety is a non-starter in which either the party fails to appear for mediation hearings or they come for mediation but then they say that they are not interested in the process. They may send some proxy to convey that they are not interested in continuing with the process or may altogether stop coming for the hearings. Cases can be referred at the litigation or pre-litigation stage. We receive a case for mediation after FIR is registered. Judges permit parties to retract but usually, 90% of parties stick to the MOU. He believes that the lawyer’s value has reduced because of the mediation process. He thinks that the mediation process has already affected the volume of work and will further impact it in the longer run. He stated that if children are involved in the matrimonial dispute, he tries his best to reunite the parties. In cases, a person is a repeat offender of DV, we try to find the reasons and help the parties. If the resolution is possible, he tries for reconciliation between parties else suggest them separate and settle their connected disputes. He tells the clients about their legal position and consequences and what all is legally allowed. According to him the major lacuna in the mediation process is that since the mediator can only assist and facilitate the process, he can’t advise anything to them. But for a constructive outcome, the mediator has to express his opinion. He also suggests that there should not be any time limit prescribed for settling disputes through mediation just like there is no time limit for the judge to dispose of the case. Mr. D (Mediator) Matrimonial disputes can be filed for various reasons but in most cases are filed for claiming maintenance and divorce. The cases of matrimonial dispute and divorce by mutual divorce is on the rise. In front of a regular Court, the parties accuse each other just to make a strong case in their favour. To avoid this mediation has a huge scope to settle fragile matrimonial disputes with some extra efforts and sensitivity. Else

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once parties approach the Court they make up their mind to separate it is difficult to reconcile them. He tries to make the parties patiently listen and see the underlying cause of the dispute. According to him, minor children are the worst victim of such disputes who wishes to stay with both the parents who take it on their ego and fight ugly battle to win the child custody. He stated that mediation is satisfying, result-oriented, practical, confidential, timesaving with no expenses involved. The information revealed during the mediation process cannot be used as evidence anywhere. According to him the biggest advantage of mediation is that nothing is recorded in the mediation process. The parties can freely make their statements without any fear of details divulged to the other party. Mediation is a successful process that solves more than fifty percent of the referred cases. Mediation has a better infrastructure but no follow-up is done after settlement. He suggested that post-mediation support services especially to women should be provided. He stated that in cases there is an allegation of a repeat history of DV or threats are made to women during the process he takes a serious note of it. As a precautionary measure, he sets the ground rules on the very first date of the mediation. He tries to generate confidence in the woman by making her comfortable so she confides in him and shares her apprehension. He suggested that to reduce the number of matrimonial disputes, some form of pre and post-marital counselling must be provided to the young couple before they decide to marry. For this the state government and NGO committed to family welfare can collaborate. Mrs. E (Principle Counsellor) She did her masters in psychology honours and has ten years to experience in counselling. According to her, the experience of counselling in FC is different from other forms of counselling. Once the judge feels that a case is fit for reference for counselling, it is marked to the counselling centre. For this, a proper format of reference containing particulars of the case, case number, reasons for the dispute, and name of the counsellor is transmitted. She stated that ideally a case must be settled within three months of reference to a counselling centre but in some cases with the judges permission additional time may be provided. Children might be called to the counselling centre for deciding the child custody issues. The counsellor stated that she has no power to decide about the quantum of maintenance that remains the main area of concern among parties. As men usually throw tantrums in paying the maintenance the same is ordered to be paid in a woman’s account directly and under Courts supervision. As per her, in the case of DV, if women do not want to stay with her husband she doesn’t force them. In repeat DV cases, she tries to empower and suggest the women opt out of their marriage and ask for maintenance from their husband. In case women have financial constraint, she tries to empower them by advising to taking up of suitable vocational training for employment and complete their necessary education. She stated that male egos are strong and once they institute a case, it is not withdrawn. On the frequency of settlement, she said that each month fifty percent of the cases are reconciled. Reconciliation may happen in one sitting, two sittings, or maybe in a fortnight. Regarding the number of sittings, she stated that there is no standard

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formula for deciding the number of sittings required for a particular case. It may be three to four times a month or once in a month session depending on the case requirement. If no reconciliation happens, parties may go for contested divorces or non-contested divorce by mutual consent. In cases of couples with children to avoid their financial and emotional deprivation, she tries her best efforts towards reconciliation of the couple. She tries to monitor the couple even after reconciliation for a duration of at least three to four months or till she is assured of smooth relations among them. After a month of initiation of counselling, if more time is required, she makes a request in writing to the judge. If she senses that the parties have no intention of reconciling the dispute, she reports accordingly so that parallel proceedings can continue. The parties are then required to file a written statement or their responses to the plaint filed in the Courts. On the question for improvement of the process, she said that when client visiting the centre get the awareness of the difference in the power of a counsellor and a judge, they become reluctant and less appreciative of what she says. Further, the judges may ask for reports of every hearing, which becomes difficult. In a regular course, she sends a status report once a month. She suggested that for outstation parties, more time should be provided for the completion of the process. Mrs. F (Counsellor) She did her Masters in Social Work and has six years of experience in counselling. She pointed out that the only cases that come to her for counselling are those in which no FIR is registered. She responded that divorce is still a stigma in our society. Even when there is a complaint of DV, the majority of women do not want a divorce. She never pressurizes women but does suggest they to reconcile and compromise things especially if children are involved. She counsels them to bridge their differences but reconciliation takes longer as so many parties are involved in the process and because there could be ten associated cases pending in different Courts. She said that she gives sufficient time to the parties and calls them frequently so that justice can be done. She informed that there are several motivation behind reconciliation including children, financial issues, societal pressure, concerns about the next partner, and if another man will be able to step in the role of a natural father. Due to these factors, the reconciliation between couples with children is swift. On the frequency of settlement, she also reported a fifty percent settlement rate. She said that in the initial stages of the process, she suggests them to stay together for a while and even after that if the conciliation is not possible she advise them for divorce and settlement of the connected issues. The main contention that remains is concerning maintenance and if parties are adamant their case is referred back to the Court. She informed that she do follow-ups in reconciled cases through fortnight telephonic dialogue with the women. Even after the completion of the process, she tries to mediate and resolve the minor issues faced by the parties. This follow-on is continued for the next 6 months to 1 year. On the role of lawyers, she said that many clients come for counselling process with their lawyers making reconciliation difficult at times. Lawyers hinder the process and should have lesser involvement as

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clients don’t come and even speak anything without them. As per her, the settlement agreement (MOU) entered during these processes is not binding until the Court pasess an order on it. If in the courtroom the parties retract back from MOU, the judge may give some additional time to the parties to think about this decision again. But generally, people don’t do so and settle their issues according to the terms of the settlement. It is only one in 20 cases that the parties fight again.

7.2 Case Studies Apart from the interview schedule, 20 case studies (10 of mediation and 10 of counselling) were conducted that gives a narrative description of women having experience with the mediation or counselling process. Names, locations, and identifying details of the respondents are changed to maintain confidentiality and anonymity. The case studies discuss the background of dispute, women respondents reasons and construction of violence and families opinion when they took legal action against the husband. They evaluate the efficacy of the justice delivery mechanisms from women litigants perspective and their experience during the mediation or counselling. The strategies used by mediator/counsellor to help women to deal with matrimonial conflicts are analyzed. The discussion will focus on women’s view and perception of the process, on neutrality, equality, violence, empowerment and gendersensitivity while conducting the sessions. For a better understanding, women’s level of satisfaction, causes of dissatisfaction, and difficulties faced by them scrutinized.

7.2.1 Case Studies: Mediation (Ten) Case 1: Meenakshi Versus Amit Marital History: Meenakshi is a 25-year-old girl. After the matrimonial dispute, she is staying with her parents. She is a high school pass and is completely dependent on her parents for her day-to-day expenses. Her husband is a businessman. According to Meenakshi, the problem started on the very second day of her marriage when she was scolded for not bringing enough dowries. Later on now and then she was beaten up, humiliated and harassed by her husband and in-laws. She was kept in confinement and was not permitted to speak to anyone. A girl child was born to her. When the child was two months old, Meenakshi was thrown out of the house in the middle of the night. With the help of her family, she filed a case of DV in the CAWC. From there she was referred to a counsellor attached with CAWC who was not of much help. Her case was filed in the Court that referred her to the mediation centre. She attended the mediation centres proceedings four-five times but no settlement was finalized among the parties. Her husband did not return any of the ornament given to her at the time of marriage. Various joint and separate sessions were conducted.

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Amit initially offered Rs. 50,000 for settling the case but with intervention finally agreed to pay Rs. 3 lakhs for full and final settlement of divorce. As suggested by her lawyer, Meenakshi was demanding Rs. 10 lakhs. Finally, the case was sent back for further judicial proceedings. Problem with mediation: Meenakshi was not that very enthusiastic about the entire mediation process. She said that neither was she aware of the process nor the mediator informed her about it. She feels that the process is of no help, and it is merely a formality. The mediator never tried to understand her point of view rather pressurized her for settling the dispute with her husband even though it would have meant jeopardizing her interests. She accused the mediator of never trying to hear her side of the story and for always trying to hush up the matter. She said that she was uncomfortable sitting in the same room where her husband was also present. In every session, he uses to stare at her. Case 2: Jyoti Versus Rajneesh Marital History: Jyoti is a 29-year-old woman married for the past five years. A daughter was born from this marriage. She complained of abuse during her married life. She said that in the initial phase whenever abused she would return to her natal home. Her husband would come to her would apologize for his behaviour and will take her back, but within a few weeks, his abusive behaviour would resurface. Jyoti would be again physically abused and thrown out of the matrimonial house. Many a time she thought of leaving him but whenever he apologized thinking that he will change she returned to the matrimonial home. Jyoti is a graduate, but despite her education, she is unemployed, has no property to support her child, and feels that she tried her level best to save this marriage despite constant physical abuse. Jyoti finally complained about the episodes of DV and an FIR was registered against her husband. The Court referred the matter to the mediation centre where it was compromised. A sum of rupees four lakhs was agreed as a compromise amount. The articles given at the time of marriage were returned. Marriage was dissolved by mutual consent and Jyoti was granted custody of her minor daughter. Connected cases were settled, an FIR was quashed. Problems with mediation: One of the biggest concerns throughout this process was the threat of blackmail from her husband. He would often call her and tell her that either she return or she will lose the custody of her daughter. He physically and emotionally abused her. She felt unsupported in the first few sessions but later found the process satisfactory. The mediator helped her clarify some points, but he didn’t intervene in places where she thought he should. Occasionally her husband would threaten her to quit his job and prove himself bankrupt to ensure that Jyoti will not get any maintenance from him. She said that during centre visits, her husband intimidates her by his looks and gestures. The mediator failed to take these cues and intervene at appropriate times. She felt the process was a lost battle that should get over soon. In one of the private sessions, the mediator advised her to avoid eye contact with her husband to prevent intimidation and its effect on the session. She said that she felt comfortable in her advocate’s presence who helped in every way to

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get her strength back. She said that rather than relying on the opinion of the friend, relative, or mediator one should hire a lawyer. Case 3: Ashima Versus Umesh Marital History: Ashima is an educated woman married to Umesh an MBA working with a corporate house. Umesh was in love with one of his colleagues but married Ashima under family pressure. Temperamental differences arose and within 10 months of their marriage, they started living separately. Ashima complained of mental and psychological abuse by her husband. She said that now and then he used to threaten her with divorce. With her families help, she complained against him and her mother in law under the DV Act. She also filed a criminal complaint about maintenance. The Additional Session Judge referred the case to the mediation centre. After six sessions, the parties decided to settle their disputes amicably. The marriage was dissolved by a decree of mutual consent. Compensation for her claims was awarded. Problems with mediation: She said that the mediator never gave her sufficient time, and he never reached the mediation centre on time. Before every session, she had to wait for her mediator for long hours. During the waiting period, her husband uses to give her ugly looks. She said she felt powerless much before the actual mediation sessions. She was worried and afraid of the post-mediation consequences. During her pre-mediation conversation, Ashima disclosed the presence and nature of abuse in her marital relationship. She was fearful of her husband’s hard looks, his confronting attitude, and his verbal assaults. Though she appraised her mediator about everything but nothing was done about it. If Ashima was to mediate again, she would have felt more comfortable and more reassured in separate sessions. She thinks it would be beneficial if the mediator will meet both the parties privately to get a better idea of their expectations from the mediation process. This will be helpful for the woman to communicate well and avoid misjudging by the mediator. Case 4: Razia Versus Rehmat Marital History: Razia was married to Rehamat in 2003. Three children were born out of wedlock. Razia suspected that her husband is having an extramarital affair with one of his cousins and is reeling under debts. He blamed Razia for all his troubles. Rehmat was very bitter and would often come home drunk. When angry, Rehmat used to throw objects, pounding his fists, yelling at her, beating her and the children, and calling her names. Many times she locked herself for protection. Both the parties started living separately and she filed a complaint under the DV act. From the Court, the matter was referred to the mediation centre. Razia had the custody of all the three children and Rehmat will provide maintenance to them (including Razia). He will also give her Mehr, amount of Iddat period, and jewellery articles along with compensation amount of rupees eight lakh and fifty thousand towards a full and final settlement. The complaint was withdrawn, and pending criminal cases were settled. Parties got their marriage dissolved according to Muslim Law. Problems with mediation: Razia had a positive mediation experience. She felt content with the process that was as per her expectations. She described Rehmat’s

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disturbing behaviour to the mediator, based on which the mediator informed Rehmat about some of the ground rules in the beginning. Razia grew stronger and more confident as she realized that the mediator took control of the situation. She informed me that she gradually felt more able to speak up. She also thought that the mediator helped her by convincing her husband to reach the desired settlement. She is convinced that she got a better settlement through mediation than otherwise, she would have in the Court. Case 5: Priya Versus Prashant Marital History: Priya is 40 years of age and was married to Prashant, a businessman. Priya is a homemaker. The couple had two children aged 16 and 13. Priya complained that her husband wanted to mould her according to their family values, whereas she has a different lifestyle. Her husband felt that she is too outgoing, keeps male friends, and is not a good mother. Priya accused her husband of the extravagant lifestyle who is least concerned with the upbringing of their children. He would often return home late and drunk. She said that due to the constant worries and handling everything alone, she now suffers from anxiety attacks for which she under medical treatment. She filed a complaint under the IPC. Complaint cases were withdrawn, FIR was quashed, and a final settlement amount of a sum of sixty lakhs was ordered. She was granted custody rights and marriage was dissolved by mutual consent. Initially, she was bothered about the custody of her children. She cried in many of the sessions. She felt that in the first few sessions, the mediator was more biased towards her husband but once she shared her apprehension with the mediator and disclosed the presence of verbal abuse in their relationship, the mediator controlled the process and nature of the conversation by creating a safe environment for her. Her lawyer accompanied her for every hearing at the mediation centre. She felt that it’s advisable to hire a lawyer. She said that at one point, both of them reached a deadlock, and the mediator made genuine efforts to sort it out. Case 6: Rashmita Versus Harish Marital history: Rashmita was married to Harish in 2009. Since the beginning, there was lots of interference from both families. According to Rashmita, her widowed mother-in-law used to spy on her and she felt she had no privacy. Many times she caught her spying on her but when she confronted, her mother-in-law denied the same. If she ever complained to her husband, he uses to get very aggressive. She said that she was vulnerable to all types of intimidation. On several occasions, there was a tiff between both of them. An FIR under IPC was made. With the efforts of the mediator, parties decided to move to a different city to live separately away from their families. Her husband agreed to provide her seven thousand rupees towards her monthly expenses by way of account payee cheque. FIR was quashed and everything was amicably settled. Problems with mediation: Joint and separate sessions were conducted. Rashmita felt that her husband was not at all appreciative of her problems, and focused on his self-interests. Rashmita reported that mediation is better than going to Court, but recommended that only female mediator should hear women cases. She complained

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that it was difficult to build a rapport with the mediator because of the way he spoke to her. He was very harsh, biased, asked inappropriate questions, and pressurized her to adjust. Despite her telling him that her husband ill-treats her and does not give her any money to fulfil her day-to-day requirements, he kept on insisting that she must make adjustments for a peaceful life. She felt that she could not express herself or explain her problems to the mediator as he was not convinced about the grievances she had concerning non-maintenance and ill-treatment. Case 7: Manita Versus Suresh Marital history: Manita was married to Suresh and since the beginning, Suresh was of controlling nature. He isolated her from her friends and family by threatening her with dire consequences. No child was born out of wedlock. She filed a complaint with the police and FIR was registered under IPC. They resolved all their disputes and differences by the way an agreement entered into at the mediation centre. Problems with mediation: Manita felt that for negotiating her due possessions and financial settlements, Court proceedings would have been a better option. She believed that mediation would work well for women who can comfortably argue with their partner. When asked why she signed the consent terms if she was not that happy, she reported that she has no other option. The mediator never fully explained the implications of each term of settlement. She felt a lot of loneliness and frustration in fighting the case. Even though her family did not stop her from pursuing the case, they neither offered any positive help or encouragement to support her fight. However, after getting her maintenance finalized from Court her family is willing to support her. Overall, Manita was content with the mediation session and the final agreement. Her only regret from the mediation process was that the attitude of the mediator was callous towards her. Case 8: Rameshwari Versus Ramesh Marital history: Rameshwari was married to Ramesh and two children were born from wedlock. She said that her husband was selfish and never actually intended to stay with her. She has many traumatic experiences but there was no respite from her traumas. Due to constant domestic violence, disputes, and differences, Rameshwari lodged the FIR under IPC. She had a tough time getting the FIR registered from the police who pressurized her to withdraw the case. Both parties resolved all their disputes before the mediator when Ramesh agreed to pay a sum of three lakh rupees as final settlement. Complaints under Section 12 of the DVA were withdrawn, FIR was quashed, and marriage was dissolved by mutual consent. Problems with mediation: Rameshwari had mixed feelings about the mediation process. As per her, the first few sessions were a waste as we just blamed each other for everything and refused to reconcile. The mediator motivated us to sort out the differences. Though the differences could not be reconciled the divorce was on cordial terms. Rameshwari felt that the mediator once accused her of being mean and devoting her maximum time in office, away from children. She wasn’t quite sure about what to expect from the mediation process. Her deepest grief is over losing the custody of her children. She felt the mediator was leaning more towards her husband’s

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point of view. At times she felt pressurized by him for revealing information shared in a private session to her husband. She recommended that for dealing with matrimonial disputes, female mediators should be preferred. Case 9: Kiran Versus Kailash Marital history: Kiran and Kailash have been are married to each other for the past ten years. They are staying separately for the last year. Kiran had initiated the separation by moving out of the family’s rented accommodation with her two children aged 9 and 6 years. According to Kiran, there had been violence in the course of the couple’s relationship. She was subjected to verbal abuse and a controlling nature from the very beginning and the violence escalated over a while. Her natal family supported her. She registered a case under Section 406/498A of IPC. The case was settled at the mediation centre, but she was denied children custody. FIR was quashed and divorce by mutual consent was granted after full and final settlement. She has to tide over the painful separation from her children and break off her marriage. The anxiety of remaining alone dominated her mind. Problems with mediation: Kiran’s mediator was a male and she felt embarrassed and shy to communicate with him. The key issue was that the Mediator was unable to handle the power imbalance and spousal abuse. Kiran felt that during negotiations she was in a less powerful position to represent her needs and interests. Many times her husband’s action and behaviour scared her. The mediator’s response to her was also frustrating as he never acknowledged his menacing behaviours including commenting, refusal to negotiate, compromise, and subtle gestures. He used inciting statements throughout the session but the Mediator didn’t intervene and remained silent on it. Kiran felt mentally broken. She says that her ear-ache persists reminding her of the harassment that she experienced at her husband’s hand. Case 10: Sakshi Versus Rahul Marital history: The marriage between Sakshi and Rahul was solemnized in 2009. Rahul is a businessman. One girl child was born out of wedlock. Sakshi had no say in the families financial matters and was never consulted in important decisions. Her husband was under the influence of his family and on every small provocation from them, he uses to hit, kick and beats her up. Once he even strangled Sakshi because her father was not able to meet their dowry demands. Though she suffered a lot she tried her best to save this marriage. Due to constant fights, grave temperamental differences arose. Certain other issues, the details of which she did not disclose also come up. Both the parties started living separately, and FIR was registered under the IPC. During mediation, parties decided to seek divorce by mutual consent. The husband agreed to pay a sum of rupees twelve lakhs towards a full and final settlement of all claims. Sakshi was provided with the custody of the minor child. FIR was quashed. Problems with mediation: According to Sakshi, she faced DV that has made her emotionally weak. She expected some more support from the mediator in terms of recognizing the abuse and dealing accordingly. She thinks it may not have been the best process for someone in her position. She wondered that while she is strong, educated, and have family support but found it difficult to negotiate with her husband,

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how does the other less empowered and privileged women deal with this trauma. She feels, the true culprits in this case, i.e. her husband and in-laws who subjected her to cruelty, have gone scot-free and now her husband can marry another girl and inflict the same pain on her.

7.2.2 Case Studies: Counselling (Ten) Case 1: Surbhi Versus Rakesh Marital history: Surbhi is a thirty-year-old lady. She is a dietician by profession and is well earning. She was married to Rakesh and has a one and a half-year-old son who is staying with her. At the time of marriage, she was told that her fiancée is into the garment business from which he is earning around one lakh rupees per month. Apart from this, he has a flourishing cargo business. Soon she realized that she was duped into this marriage and her husband is a habitual drunkard. Within a month, huge demand for dowry was made which Surbhi’s non earning parents could not give as they are dependent on her brother who earns meagrely. She was subjected to various abuses and so left her matrimonial house. Problems with counselling: She filed for divorce from where she was referred to the counselling centre. She felt that the settlement amount she received due to counselling is less than what she expected. Her husband has ancestral properties and other assets but before the counsellor and judge, he proved himself to be a man of no means. She told the counsellor about her husband’s financial status but the Counsellor didn’t do anything about that information. He rather insisted on settling the dispute. Finally, a settlement sum of rupees five lakh was agreed. Case 2: Anju Versus Gagan Marital history: Anju is a Christian. She is a businesswoman. She married Gagan in a temple according to Hindu rites. Later on, the marriage was registered under SMA but the same was not informed to the boy’s family. Thereafter, one of the common friends informed her about Gagan’s engagement with a girl of his community. She somehow got in touch with the prospective bride and informed her about everything. Gagan’s fiancée broke off the alliance that was a disappointment and embarrassing for him and his family. He filed a divorce case against Anju who now stays with her widowed mother and has no one to support her. The Court granted a decree of divorce by mutual consent. Problems with counselling: Anju felt that the counsellor laid too much stress on compromise. Her husband is cunning and in front of the counsellor and judge, he claimed that he is ready to stay with her. He alleged that Anju is unwilling to adjust to the marital home and refuses to make efforts towards the temperamental differences. As per her, once out of the courtroom, her husband will openly declare that he will never stay with her and will ensure that she gets nothing from the process. She claimed that she has tried to explain these tricks played by her husband to the

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counsellor but he construed her as a defiant party. She thinks that her position got maligned in her social circle. Case 3: Prachi Versus Vikas Marital history: Prachi is a 25-year-old lady. She is a high school dropout and is a homemaker. She was married to Vikas when she was 19 years old. She has a daughter. Her husband has his own business. She is staying in her marital house where she occupies the top floor. There was a persistent demand for dowry for opening a beauty parlour for her. Her widowed mother has no source of income, and her brother is a young boy. Her father died some 10 years back. She has no one to support her. The judge granted monthly maintenance of rupees eight thousand that her husband is never paying in time. He is neither ready to divorce her nor willing to talk to her despite living in the same house. She is being subjected to constant harassment by her husband and his family. At times to harass her, the house water supply was tampered with. She suspects that her husband is having an extramarital affair. Problems with counselling: She felt that the counsellor empowered her by suggesting to save maintenance money to open her parlour after a while. Though her Court experience was terrible, she is highly satisfied with her counsellor. Case 4: Harminder Versus Inderjeet Kaur Marital history: Inderjeet is a 36-year-old lady. She is an 11th pass and non-working women. She is married to Harminder who is into the transport business. She stayed with him for only a few months, during which he was rude, was lying about things, and mistreated her. He is too possessive about his widowed sister who was a nuisance creator. She claimed that the sister in law has an eccentric personality and erratic behaviour which is highly irritating. She felt that she was not given proper respect in the family. Currently, she is staying with her parents. No settlement reached the counselling centre. Problems with counselling: She said that though the process is good, it is difficult to talk openly. Many times the counsellor indulged in clandestine discussions with her husband that she disliked. She expected some more transparency in the process. She stated that her lawyer was efficient and the counsellor was sarcastic. The Counsellor always advised her to reconcile on the pretext that the advocates are home breakers and she should save her marriage by tolerating a bit. She suspected that her husband must have told her so many fabricated stories to the counsellor though she never confronted her. The counsellor pressurized her to adjust, compromise, and reconciles but never empowered her. She criticized the facilities available at the counselling centre and stated that the washrooms were filthy, and there was no proper facility for clean drinking water. Case 5: Anita Versus Rakesh Marital history: Anita is a 29-year-old lady. She is a graduate and is not working. She was married to Rakesh in 2009 who is not earning enough. It was a love marriage to

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which her parents and in-laws never agreed. Her parents even stopped talking to her. She went through lots of emotional stress and strain during her marriage and finally filed for divorce against her husband. Her aunt is supporting her right now. She feels that she will not get justice as nobody is ready to listen to her woes. Her attempt to escape from a violent situation increased her vulnerability creating a vicious circle of never-ending problems. Problems with counselling: She thinks that the entire legal system is taxing and women will undergo enormous trouble in getting justice. According to her, neither police, counsellor, judge nor lawyer could understand her problems. She thought that the counsellor was a thorough professional and never heard my grievances with an open mind. She stated that it was hard to make the counsellor believe her account of physical abuse and torture faced. She thought to counsel as a waste of time. Case 6: Shobhna Versus Pavan Marital history: An arranged marriage was solemnized between Shobhna and Pavan. She is from Haryana, and her parents had given her a huge amount of dowry at the time of her wedding. Her husband earns quite well, but his parents insisted on getting more dowries. With each passing day, her husband and mother-in-law turned violent and they would often beat her up for trivial reasons. They would even suggest she go back to her natal house as they were looking for another match for Pavan. The situation became worse, and she was forced to leave the house one day. The next day her brother came to Delhi for reconciliation, but he was insulted. Finally, they complained to the local police station and filed for divorce. Shobhna is currently staying with her parents. The case remains unsettled at the counselling centre. Problems with counselling: The case is pending with the Court for the past two years. She feels harassed by the Court proceedings as every time she has to travel from Haryana with her father or brother and spend money on transportation and accommodation. Her husband has hired a reputed lawyer and she feels that everyone is biased and indifferent to her plight. The judge advised her to go back to the matrimonial home that she refused. She is not ready for any reconciliation or settlement as this will make things easier for her husband who will remarry another woman for more dowry. Case 7: Himani Versus Raj Marital history: Himani is married to Raj when she was 18 years old. After fifteen years of marriage and two grown-up sons, she has filed for a matrimonial dispute. She is not even a graduate and is a homemaker. Her husband is working with one of the Delhi District Courts. Due to family interference, her husband discouraged her from seeking further education. She informed that once with natal families support, she applied for a Junior Basic Training for being an elementary education teacher. Her family submitted a sum of rupees seventy thousand. On knowing this, her husband got furious and abused her for taking important decisions without consulting him. She faced constant DV from her husband to the extent that she once attempted suicide. Her children are instigated against her and remained with their father. Now she is staying with her parents and living on the monthly maintenance ordered by the Court.

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Problems with counselling: The counsellor tried to sort out the differences. She was ready to reconcile but her husband was adamant about giving her divorce. She felt that her husband participated in the counselling because the counselling was Court-ordered. She is shattered and angry as the counsellor believed in all the false statements made by her husband. She believes that her husband has connections in the Courts which he is using to influence everyone. She seems confused and is scared of her husband. She would advise a woman entering counselling to be cautious. Case 8: Kiran Versus Vinod Marital history: Kiran is a 9th pass girl. She is married for the past five years and was 20 years of age at the time of marriage. A son was born out of wedlock. Her husband is an alcoholic who runs a business. He suspects her of infidelity and constantly tortured and harassed her both physically and mentally. Kiran tolerated everything as she is not independent and for the sake of her child. Vinod abused her in all the possible ways and often blamed her for not looking after their son properly and find fault with her for not bringing enough dowries. Kiran is psychologically upset and weak. Even though she keeps a distance from her neighbours, they are sympathetic and offer every possible help. Currently, she is staying with her mother. She is not employed and has no property in her name. She heard about FC from her uncle. Problems with counselling: The counsellor not very specifically discussed the options available to her. She is not satisfied with the settlement and thinks that it is good to consult an advocate. She felt that she knew the basics of the counselling process but still was unprepared for what happened during the process. The counsellor was persuasive and pressurized her to compromise the dispute stating that the timeconsuming Court proceedings will be no better. She said that the compromise amount of rupees three lakh offered by her husband is only due to her efforts. She said that she was unable to tell the counsellor that she was confused and overwhelmed. She felt upset and betrayed by her husband’s false show of cooperation and subsequent verbal attacks. Case 9: Babita Versus Jatin Marital history: Babita married Jatin and two children were born out of wedlock. Both of them are staying separately. She thinks that her husband is a womanizer. No amount of cajoling or arguments worked and when things went out of control she decided to live separately. He accused her family of instigating her. The case of divorce is pending in Court for more than two years. She now feels tired and opines that she may settle the case with her husband and obtain a divorce by mutual consent. Wherever she goes, she is accused by her relatives and friends of not adjusting to the matrimonial house. Problems with counselling: She said that despite cruelty her family advised her not to go to Court. They criticized her for bringing dishonour to her family, and for making it difficult for her younger siblings as they might not get married in respectable families. Due to hurried counselling sessions, the dispute was not settled. Without getting any beneficial offer for her, the counsellor did not take much interest in her case as each counselling session seemed like a routine job for him.

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Case 10: Bhawana Versus Rajiv Marital history: Bhavna is a 22-year-old girl. She is an undergraduate and is not working. She was married to Rajiv for the last one years and no child was born out of wedlock. Rajiv has his factory. Disputes due to dowry demand were an everyday affair. One day Rajiv made allegations against her character. Heated arguments took place that ended in him slapping and hitting her. Bhavna was made to leave the house. She went back to her parents. She contacted a lawyer who advised her to file a case for divorce and maintenance. For six months, her parents tried for reconciliation but her husband said that she went on her own then she should come on her own. The situation remained the same, and during the mediation by the elders their respective families had altercations. The case was not compromised and divorce is pending in Court. Problems with counselling: She did not find any problem with the process. She felt heard and has no qualms about the counselling process. The only thing she suggested was that mediator should devote more time to hear the grievances of women who should be informed about the opportunities available to them after divorce.

7.3 Summation of Empirical Study This chapter presented the interviews and case studies describing women’s experience in mediation and counselling. Based on the data analysis, there are numerous similarities about the bitterness and hopes for the future from this process. While the research focused on ADR processes, the gender concern was at the forefront. The data highlights all the difficulties and disadvantages faced by women during this process. Most of the women participants were not very well educated and were coming from economically backward strata. These young women were married between the ages of 18–24 years and were financially dependent. The problems in marriage surfaced early. Many of them were less educated and not gainfully employed or do not have their savings and property disclosing the relationship between economic independence and the courage to leave an abusive relationship. Several reasons behind the marital disputes included physical and mental torture, cruelty, dowry harassment, wife abuse, extramarital affairs of their partners, incompatibility, alcoholism, children beating and assault and humiliation of natal family members. Women respondents were tolerant towards a certain level of violence. It may be because they are socialised so, or for the preservation of their marriage and due o their wishful thinking that things will improve one day. The woman kept silent for a long time but once things go beyond tolerance legal action was sought. Almost all the women claimed that they were forced to leave the matrimonial home without their assets. Before approaching legal machinery, they sought redressal from authorities who primarily advised and to an extent pressurized them to reconcile and compromise the impending dispute. This was an utter disregard to the fact that after a huge amount

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of courage women must have approached they sought their interventions. There is extreme stress on reconciliation between the spouses by the state-run agencies sidelining women’s distress. Violence is treated as a trivial issue by the women, the community at large, with the ADR practitioners also conditioned to accept DV as a piece of women’s life. In the majority of the cases, parents supported the decision of registering the case. Approval from male members like fathers, brothers, uncles, or senior males is sought before initiating Court proceedings due to women’s financial dependence. Women also had financial constraints and face difficulty commuting long distances for Court hearings. They bear the cost of litigation and have to wait for long hours for their turn all the while bothering about their young children. Stigma and taboo attached with divorce have diluted to a certain extent, but woman fears negative consequences (e.g. being judged harshly, loss of custody of children) for stepping out of this gender role expectation by knocking on Court’s door. Factors like ignorance of the law and legal rights, attitudinal inhibitions, formal cumbersome legal procedures, incapacity to reach and use the legal mechanism, limited options outside marriage, indifferent attitude of Courts and police make the women vulnerable to violence. The study proved that most of the women respondents were not quite sure what to expect in mediation/counselling, how the sessions would unfurl and their role requirements. This lack of knowledge sets up false expectations and affects the outcome of the process. Women stressed they should get accurate information regarding this process at the very beginning. Women in this study were sceptical of going for mediation/counselling due to a realistic appraisal of the process. Professionals can provide support to women to choose mediation/counselling over the cumbersome Court process. The other problems identified are that the parties lack awareness about mediation, counselling. Advocates were believed as an indispensable part of the mediation, counselling process. At FC lawyers represent parties in their cases and it was functioning like any other ordinary Civil Court. Women pay a fee to their advocates and had to appear at Court whenever they had their hearings. The crèche facility is either not arranged or if available is not functional. It was difficult for them to manage the entire affair. The study brings fore that in the entire legal complaint process women end up facing a gamut of litigation. A simple complaint by the wife may lead to a plethora of counter cases by a husband who may file a case of RCR, child custody, denial of maintenance on various grounds. All these legal proceedings make things miserable and the legal procedures and their technicalities deject women. During these processes, either woman was not allowed to speak or she feared that her speaking might ruin the case prospects. There was a prevalence of lack of knowledge about legal procedures and technicalities among educated and employed women. Mediation/Counselling centre expeditiously resolved cases and within few hearings. The ADR centres were found lacking in terms of seating facilities, drinking water and sanitation. In terms of infrastructure, the condition of mediation centres is far better than the FC that lacked easy accessibility of public conveniences like drinking water, waiting room, etc. Conciliation, which is the main aim of the act, often takes place in small crowded spaces. Women respondents complained that

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the mediator/counsellor does not effectively inform them about these process, their rights about divorce, maintenance and legal aid. Only a few mediator/counsellor understood the issues concerning women, empathized with their feelings, empowered and encouraged them to propose their solutions (that was discouraging as for a mediator/counsellor it should be among one of the primmest concerns). Few women felt that the mediator/counsellor gave them enough time. A good number of them responded that the sessions were conducted properly and impartially. The majority of the women respondents had to wait for long hours before each hearing of the case. Women of all religions are approaching these centres. Counsellor’s deal with a large number of cases per day, resultantly the time they can spend with each party is not sufficient for achieving meaningful conciliation. Such over-worked advocates, mediators, counsellors often pressurize women litigants to reconcile their dispute thereby compromising neutrality. Regarding the shortcomings of mediation/counselling, women responded that lack of women mediators/counsellors and judges is the biggest problem. Mediator/Counsellor put pressure to settle the case, crowding at centres and lack of gender sensitivity in the entire process. Some of them faced bitter experiences while waiting for their turn (spate with husband, in-laws and opposite counsel) due to lack of security at the centre. Past DV makes it difficult for women to negotiate well. Past episodes of DV have already created a deep impact on their mind. During the session, their mind is always clouded with the fear and recollection of past episodes of DV. They could not share their fears with anyone throughout the process. Women complained that the case was delayed and they did not get the desired settlements. Mediator/Counsellor advised women to adjust in most cases, as she is less educated, less articulate and less assertive thereby re-enforcing the position of powerlessness in women. Male judges, counsellors and mediators appointed in matrimonial matters make women uncomfortable throughout the process calling for gender-sensitive training. The long adjournments permitted to affect reconciliation also tend to make women vulnerable to all kinds of harassment and pressure. The mediators and counsellors were lacking in the special techniques required to tackle power imbalance. Women felt subtle reprimanding and tutoring during the process to change their behaviour and attitude. The mediator and counsellors were reeling under their stereotyped notion of good women to be a family keeper and selfsacrificing. Their understanding of gender roles makes them incapable of perceiving the issue objectively. The kind of sheer indifference shown by mediator or counsellors to the women victim about violence makes her lose hope for just redressal. In the context of the history of spousal abuse, issue of safety and security and the presence of power imbalance, the mediators were moderately interventionist as against and counsellors who were more responsive to the disadvantaged situation of the women. The counsellors were more proactive about battered women interest and their safety. The abused women expected the mediator/counsellor to be more in control during the negotiations at the joint session among the parties that would have given her a sense of empowerment. Unnecessary supervising or too many restraints imposed on

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battered women during these sessions, dominating the process and its outcome was sensed as disempowering by them. In the realm of ADR and gender justice lack of recognition, inspection and lack of sensitivity about this subject has left much to desire.

7.4 Conclusion This chapter is an empirical evaluation of the ADR and gender justice for women facing matrimonial litigation. Several case studies and interviews of women, judges, counsellors, and mediators conducted over a period of time highlights some of the important findings that are persuasive to the topic under study. It emphasized the need to make a concerted and honest effort for changing the patriarchal stereotyped attitudes. A considerable size of legal machinery responsible for implementing the rights of women still accepts that the interests of the family should come before the rights of women. Clichéd ideas triumph as far as role expectations from women are concerned. The burden of keeping the family together is put on her and resolution with this objective will be harmful as they will beat the overall rationale for which the special laws for women have been enacted. The matter concerning family, divorce, maintenance or custody litigation should not be viewed in terms of failure or success of legal action. A lot of issues need to be raised and addressed regarding the things that need to be done for the protection and promotion of gender equality and justice. It concludes that although ADR is undoubtedly an effective mode of dispute resolution the challenges like lack of awareness and techniques of implementation impinges upon their effectiveness. There is a need to make a concerted and honest effort for changing the patriarchal stereotyped attitudes. A considerable size of legal machinery responsible for implementing the rights of women still accepts that the interests of the family should come before the rights of women. Clichéd ideas triumph as far as role expectations from women are concerned. The burden of keeping the family together is put on her and resolution with this objective will be harmful as they will beat the overall rationale for which the special laws for women have been enacted. The matter concerning family, divorce, and maintenance or custody litigation should not be viewed in terms of failure or success of legal action. So a lot of things need to be done for the protection and promotion of gender equality for women. The study will propose certain pertinent suggestions/recommendations in terms of institutional, policy and legal framework for improving the effectiveness of ADR mechanisms. More so for the successful management of the matrimonial disputes as unless there is an all-round change of mind set any approach to disputes settlement away from litigation would be hard to visualize.

Chapter 8

Conclusion and Recommendations for Transforming Indian Justice Delivery System for Achieving Gender Justice

8.1 Conclusion The book explored the scope, legal, and social framework of ADR especially in the context of matrimonial disputes. Matrimonial disputes involve involves high emotional quotients so they are not appropriate for reference to regular litigation. ADR was found to a far more satisfactory way to resolve the matrimonial dispute, as the disputes are resolved within a short time, it is less costly and resolves dispute without much animosity. The book began its journey with various objectives to research upon. It aimed to research and find about the philosophical, historical causes and relevance behind the development of the concept of ADR; to critically analyse the impacts, implications, and effectiveness of ADR within the existing legal framework and laws; to analyse the approach as regards the interpretation and construction of the provisions concerning ADR; to analyse and find out the magnitude of reconciliation happening due to ADR in matrimonial disputes; to understand the unconscious attitudes, biases against the vulnerability of aggrieved women in particular when the matrimonial disputes are resolved through the ADR; to analyse the prevalence of the ADR practitioners’ perceptions regarding the importance of preserving the family unit, even to the jeopardy of an aggrieved woman; to find out the effect of various factors in totality that impacts the effectiveness of ADR mechanisms and suggest certain structural changes for making them more effective and to suggest new alternative effective modes of counselling and mediation for the matrimonial dispute resolution. Beginning with a brief survey of matrimonial laws of major religious communities in India, the permanency status of the marriage was probed. Some of the communities have a contractual aspect of marriage, but almost all of them consider it to be a permanent, eternal, indissoluble union. However, the reformed codified enactments on marriage and introduction of the concept of divorce have challenged its permanency. Different Acts governing people belonging to different religious communities

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8_8

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exists, but the grounds provided for divorce are more or less the same, with minor variations. The divorce rates are increasing as unhappy parties are resorting to its dissolution. There is a long list of apparent cause of tensions and discord based on which litigation is agitated in the Court of law. Today, Courts are flooded with cases, but the number of judges required to resolve these disputes has not increased. A natural consequence is the culmination of a large number of unresolved disputes pending in the Courts. The ordinary Court divorce procedure in India continues to be long-drawn-out, expensive and embarrassing when the contesting parties are required to prove cruelty, unsoundness of mind, the impotency of spouse, etc. Courts have also become inaccessible due to barriers like: poverty, illiteracy, ignorance and procedural formalities. The traditional judicial system has failed to meet the expectations of society due to delays, high costs, uncertain outcomes thereby generating frustration among litigants. Right to litigate and access to justice are the two important ingredients of our constitutional guarantees but due to the efflux of litigation the conventional litigation machinery is unable to bear the pressure. It still functions under the outmoded mechanisms. There is a growing need to find out the other modes that are speedy and less costly. Need is felt to resort to ADR process which is more flexible, informal, inexpensive. ADR attempts to resolve disputes at the domestic as well as international level through methods other than litigation in Courts or Tribunals. It is a powerful form of dispute resolution in which a neutral third person bridges the gap between the parties by bringing them together unlike the adversary process. It is a non-judicial procedure in which parties are encouraged to negotiate directly with each other. The decision so delivered is cost-effective, and it avoids polarization of the parties to the dispute and probes wider issues than the formal Court system. ADR flourishes because it avoids rigidity and inflexibility which is inevitable in the litigation process like the high lawyer and Court fee, long delays. There are various legislation and statutory provisions that recognize ADR mechanisms. ADR assumes great importance, especially in the context of family. Family is an ancient institution, which provides an environment of love, belongingness, security and a blissful atmosphere to its members. It guarantees marital peace, fulfilment and growth. The unity of family and marital relationship is under increasing stress and is becoming complex and demanding. Present-day women are more educated, more economically independent, and they contribute substantially to the workforce. The number of divorce cases filed in the Courts has almost doubled with more and more young couples filing for divorce. There are various reasons behind this trend including individual culture, ego clashes, decreased dependence on each other, progressive personality, increased awareness, divorce is no more seen as a taboo, extramarital affairs and reduced tolerance to domestic violence. Spouses are no more dependent on each other, financially and children are no more a binding factor. ADR is especially suitable to the requirements of a woman who in a majority of the matrimonial disputes is a party with lesser means. For women, ADR is a confidential, flexible process that follows an informal process and fewer technicalities. The Law Commission at various

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stages has also pointed towards the need for other modes known as ADR mechanisms that are not substitute but are supplement to the litigation system. ADR is proposed with the idea of helping women to obtain greater access to justice. In the Indian context, access to justice for women need to be discussed in terms of opportunities available to them and their ability to attain qualitative justice. A woman while accessing her rights finds various impediments to her access to justice, viz. patriarchal society, the authoritarianism of state and law, religion, cultural norms and practices, gender-role socialization, marriage institution, gender-based violence and social structure reinforcing the subordinate status of women. The Constitution and the state have also been enacting special laws for safeguarding the interests of women. These laws relate to various aspects of marriage, divorce, adoption, right to property or inheritance, equal wages, maternity benefits etc. still women face inequalities evident in the form of patriarchal social structure, anta-property, child marriage, poor socio-economic status of women, lack of political rights of women, lack of education and inequality leading to attitudinal biases and non-realization of rights. In the context of matrimonial disputes, reference to mediation, counselling and reconciliation is given under several legal provisions including the FCA, DVA, CPC, HMA, LSAA, etc. The philosophy behind ADR is amicable dispute resolution. Mediation is defined in Black’s Law Dictionary as “a private, informal dispute resolution process in which a neutral third party, the mediator, helps disputing parties to reach an agreement.”1 The concept of mediation is defined as a collaborative, party-controlled, confidential, informed, impartial, balanced and safe, self responsible and satisfying ADR mechanism. It offers a unique and dynamic resolution of disputes and preserves relationships. Mediators facilitate communication and cooperation between the parties, they help them in identifying the issues, clarifying priorities, exploring areas of compromise and find points of agreement, resolution of the family dispute requires therapeutic counselling as well, it is therefore imperative that mediators should be skilled, well trained, and informed. In terms of family disputes, the mediation process or in assisted negotiation, an impartial third party facilitates the dispute resolution through voluntary participation of the parties who decide things for themselves. The family mediator assists communication, encourages understanding, and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions, and reach their agreements. The ADR professional like a mediator effectively facilitates communication among the parties. He also tries to separate the people from the problem and identifies the real issues and needs of the parties. He helps the parties to overcome the deadlock and emotional blockages, reassess their case, and makes an effort to bring the right people and right information to the table. During the entire process, he continually works towards increasing the options for resolution and in restoring the negotiation process, he restores and safeguards the relationship.2 He fulfils promote self-determination and ensure that the 1 Garner 2 Shipra

(1999). (2011, pp. 224–225).

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agreement reached is voluntary and non-coerced, non-advisory as to the law unless the participants have given express agreement to an advisory process, to be impartial and even handed between the parties, to avoid conflict of interest, to respect confidentiality, to check that parties perceive the outcome as fair and equitable.3 Thus, the family mediator assists the participants to gain a better understanding of their own needs and interests and the needs and interests of others. In the case of counselling, the preamble of the FCA states that the Act aims to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. The entire structure of FC rests on the twin pillars of counselling and conciliation. Parties can trust the mediator/conciliator as they are unbiased and treat both the parties equally. The counsellor does not argue, blame criticize, mobilize, or tell the other person that he is wrong. The goal of counselling is to help people tide over the rough spots. The Counsellor aims to explore the personal difficulties of the client and what has been done or could be done to relieve them. The counsellor is more a listener than a talker, he asks questions rather than gives answers, suggests rather that than recommends limits advice to purely practical matters, explores with the client what the latter wants or fears. How he sees his partner and himself. The interview does not follow any formal plan to suit the counsellor but follows whatever the client wishes to bring up for discussion. The counsellor helps to clarify the difficulties and what might be done to alleviate any particular aspect of it.4 The questions in the interview are seldom about matters of factual detail but are aimed at encouraging the client to express himself more fully. The counsellor helps the client to explore his feelings, all sides of a question, to look at possibilities and implications and the probable results of any changes he is contemplating.5 The empirical evaluation discussed in Chap. 7 obtained an in-depth understanding of the legal and the social framework of ADR their work environment, accessibility, women experience and satisfaction level, what they accomplish from the process, how the mediator/counsellor did treat them, advantage and disadvantage of these process and their recommendation for change were evaluated based on the doctrinal and empirical study. Interview of mediator/counsellor was intended to find out the problems in implementation. It was found that the success rate of the process of counselling, mediation, and reconciliation is satisfactory; however, much improvement is possible to make it a great success. Just like other countries where the success rate is around 90%, it has potential for India too. But the full potential of ADR is not yet fully tapped due to the interference by key players. Secondly, lacunae in terms of serious ethical, psychological, infrastructural impediments are present that impinge upon the effectiveness of these processes. The responses by mediators/counsellors and women respondents make it quite clear that counselling and mediation in matrimonial disputes are not sufficiently and effectively serving the meaningful role of the agency of ADR mechanism in the 3 Hardy

and Rundle (2010, p. 105). (1968, p. 33). 5 Wallis (1968, p. 34). 4 Wallis

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problems referred to it. It was found that the unconscious attitudes, bias underplay when matrimonial disputes are referred to them. In the matter concerning family, whether divorce, maintenance, or custody litigation should not be viewed in terms of failure or success in which parties and their counsel are engaging in winning or defeating but as a social problem needing solution keeping the protection and promotion of equality for women in the forefront. So a lot of things need to be done for the protection and promotion of equality for women. If the recommended measures are undertaken, ADR will surely secure women a better position towards the enjoyment of their social, economic, political, and constitutional rights. The study established the presence of societal prejudices and notions against women in the non-conventional ADR processes, which are hampering their effectiveness. In the ADR process, much is dependent on the skills of the third neutral person who conducts these programmes. ADR has undoubted value as a process and women litigant gave a mixed response about their experience with the process. However, many interviewees opined that the process has drawbacks also. The institutional framework for ADR services is not yet fully developed. Attitude towards it of the professional, industrial and commercial groups are yet to be developed. It is clear from the findings of research that ADR is a promising mode of resolving matrimonial disputes but have still to go a long way to accomplish the desired objectives. Empirical data gives support to the fact that women respondents face difficulties and disadvantages when they approach the mediation/counselling centres for reconciliation and enforcing their legal right. Unless the women are severely wronged, the legal framework and the social discourse stress upon preserving the family. The findings of the study indicated that cruelty and DV within the confines of a home make women vulnerable to exploitation, isolation, and exclusion. Society does not regard women as autonomous unit. It indicates that a long and tedious battle against a situation of violence both within the legal framework as well as within the socially embedded institutional framework compels a woman to give up her struggle against injustice. Few significant issues also emerged out of the data collected and from case studies relating to women’s experiences of violence within marriage. Findings depict that decision to use the legal system against her husband and in-laws goes against the notions of the ideal role of a woman in a family. The majority of the women find it very difficult to stand up against violence and even when they choose to do so, the state machinery often ends up in re-victimizing her. Though the law is protective of women’s concern yet the process of its operation is complex and complicated and ends up working against women’s interest. Several barriers in terms of procedural aspects of law, social attitudes, perception about the institution of marriage and family, hinder women’s access to justice. In such a situation, it is important that where the Court directs the parties to attend counselling or recommends conciliation, it must consider the past DV and women’s unwillingness. The role of agencies and authorities indulged in ADR is also stereotypical. Data indicates that women are compelled to negotiate with their perpetrators. Imposing unjust terms and conditions neglect the fact that it often revokes a woman’s confidence and negates her faith in the justice delivery system. It emphasizes the need

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to make a concerted and honest effort for changing the patriarchal stereotyped attitudes. Legal functionaries responsible for implementing the rights of women keep the interests of the family supreme and before the rights of women. Clichéd ideas triumph as far as role expectations from women are concerned. The burden is imposed on women to keep the family together. Such resolution will be harmful to women’s benefits and will beat the overall rationale for which the women-specific laws are enacted. The current study has succulently covered all the major aspects of ADR, and the results could guide ethical decision making. One must acknowledge that a huge gap exists between the law and social attitudes and beliefs that act as barriers in the enforcement of laws for women’s emancipation who have suffered for long centuries. Gender injustice is inbuilt into our legal system that makes itself evident in various subtle and implicit ways. It shows itself through the orders and dealings of the conservative law functionaries, their biases, and stereotypes. The cultural norm and social customs along with the working of the legal mechanism in relation to women has not done justice and not granted them equality. The study premised on the idea that the Indian justice delivery system and ADR process aim to provide a platform for a woman to raise her anxieties and claim her rights, but practically it ends up in precluding her claims and often re-victimizing her. The responses by mediators and counsellors and women respondents make it quite clear that counselling and mediation in matrimonial disputes are not sufficiently and effectively serving the meaningful role of the agency of ADR mechanism in the problems referred to it. It was found that the unconscious attitudes, bias underplay when matrimonial disputes are referred to mediation and counselling. There are various lacuna’s impinging upon their effectiveness as ingredients of prejudicial biases against the aggrieved women are present in the final outcomes. So a lot of things need to be done for the protection and promotion of gender equality. The findings suggest that FC and mediation centres are a useful dispute resolution mechanism that unites conflicting couples however it is mostly at the cost of the rights of the battered women. It is hoped that the coming years will be characterized by a new outlook in this direction.

8.2 Recommendations for Reform Three things are necessary for making ADR proceedings in matrimonial disputes more effective; these are good law, infrastructural facilities, and professionally trained ADR practitioners. Based on the analysis of the chapters and research conducted with the help of the collected data, case studies, and discussions with the people concerned, the following recommendations are made:

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8.2.1 Recommendations: ADR Process Gender Concerns A gender balance in the judiciary will make confident to approach the legal machinery feeling that their experience will be appreciated. The atmosphere at the mediation centre should be more congenial and encouraging. Ideally, the composition of the panel must be made for the best results (i.e. a male and a female mediator presiding over the mediation session). But if the above recommendation cannot be observed, then in the case of matrimonial mediation, preferably only a lady mediator should be appointed so that the aggrieved women feel free to speak their mind. The quality content of the ADR process can be improved by well incentivizing the participants. Proper screening of all divorce and post-divorce cases should be done to determine which cases are appropriate for mediation. Use of ADR in case of DV should be premised on the understanding that the perpetrator and the victim are not equally at fault but an effort from both sides is necessary for a permanent resolution. The complaint of DV should not be trivialized due to speedy redressal necessity. Such case of history and allegation of DV must be dealt within the formal system. Interim maintenance must be granted on a priority basis to help the women economically to withdraw the amount deposited in the FC by their husbands. Legislative and Statutory Framework ADR should move in a direction that will encourage trust and confidence in the participants. It will increase the voluntariness. For this ADR and its practice must be developed just like many other countries. Mediator/Counsellor standards of practice and a code of conduct to improve the quality of mediation/counselling should be introduced as a devoted and codified regulatory code for uniformity in ADR practices. It should stipulate terms and conditions, points to be kept in consideration, the role of ADR practitioner at each stage, their accreditation, training standards, and other relevant aspects of the ADR processes. To make the ADR process efficient and effective, in case of misconduct or violation of these guidelines some punitive measures must be delineated in the code. The long-awaited irretrievable breakdown of marriage must be incorporated as one of the grounds for divorce so that parties can get amicable settle such cases and only cases involving infringement of legal right need to be litigated. More powers to increase the efficiency of Courts for the execution of the decree or order, interim reliefs, etc. must be provided to improve the quality of decisions. Developing a code of conduct or manual with prescribed rules and regulations to be followed by judges, mediators, counsellors, advocates, police and NGOs for better coordination will be helpful. The codification process of mediation after India became a signatory to United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018 (Singapore Convention on Mediation) need to be speed up to have uniformity in the mediation process and practice. The grounds of retracting from MOU should also be specified in the Act just like Section 34 on set aside of arbitral award under A&C Act. With the help of the Bar Council of India

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in the Advocates Act 1961, a provision that makes it mandatory for the Advocate to positively inform their clients about the usage and benefits of the ADR process must be inserted. They must make it as one of the important legal and ethical duty of every advocate. Appointment and Training of ADR Practitioners The staff should be oriented to help litigants, more particularly illiterate women who approach the Court. The professional, more experienced, skilled and committed workforce as ADR practitioners must be appointed. The accreditation and licensing of the mediator and counsellors must be regulated to develop orientation and professionalism. Training module and programs must cover due assessment of various barriers to reconciliation and settlement discussed earlier. Refresher courses and Crash course in psychology, social work, marriage must be imparted along with the 40 h of training. A separate regulatory body can be constituted for keeping a constant check on the functioning of the process, and participants must be constituted. Budgetary Allocation and Infrastructure Increase the infrastructural support, and budget allocation for the ADR process needs to be radically increased and improved. FC should be housed separately and not within the regular Court Compounds. FC requires focused attention so the infrastructure supporting it ought to improve. The FC should be easily accessible and must have a separate entrance. The vacancies in FC should be filled up immediately. Establish enough FC, and it should not be mere tokenism. They must be constituted with proper infrastructures and basic facilities for every district housed separately in the Court for private, confidential and easy access to justice for women. Help desks should be constituted to aid the women in completing the formalities. The help desk with legal aid lawyers can aid the women as and when assistance is required. They should empower women. Display boards to provide information regarding the procedures should be installed at appropriate places just like the FC. To improve the physical access to Courts more courthouses and mobile Courts with ADR facilities can help women facing limited mobility to access justice. The Multi-Door Court House System can be established through which litigating parties can choose from among the multiple available. For all this, adequate financial support through budgetary allocation should be extended by the government. Research and Evaluation Periodical inspection, meeting, and evaluation of ADR for their optimum efficiency must be undertaken through systematic study and research. This will make them effective especially for ensuring justice to women. Knowledge derived from regular feedbacks would be useful in planning the policies and their implementation. Regular scrutiny and supervision of cases solved through ADR and accomplishments must be done. Periodic monitoring of FC’s must be done to oversee the functioning the FC in each state to introduce required changes in its structures and performance. To determine the quality of services and for increasing access to justice, empirical studies must be conducted about its several functional areas to monitor ADR mechanisms.

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Standard Pro Forma. Procedures and MOU Simplified procedures and standard pro forma should be evolved for simplifying the drafting and legal procedures. A standard pro forma should be worked out and published in all regional language papers, setting out the list of documents require to be filed in Court. The simplified pro-forma should only require the parties to state facts without substantiating each fact with evidence. The settlement agreements must be made enforceable by converting MOU into a consent Court order to settle the bulk of the referred disputes. Settlements at the Family Courts Counselling Centres should be made final and binding to put matters to rest conclusively without any further challenge. Awareness and Collaboration Wide publicity and promotion should be given to the concept of the ADR process through media. It is required to create awareness about laws and the redressal process for generating confidence among women. For this, there must be an increased collaboration with women organizations and NGOs committed towards women’s cause and social change. Women’s organizations should be consulted while formulating policy and making reforms in the laws concerning women. Alcoholism is a major reason for DV, cruelty, and marital discord. With the help of NGOs, steps are necessary for discouraging alcohol consumption and by setting de-addiction centres. Preventive counselling centres with the help of NGOs should be set up in each district for avoiding the aggravation of the dispute. The law schools must continue with teaching the ADR course at the college level. A course developed according to the Bar Councils Norms and focusing on their various aspects and peculiarities of each area of practice must be focused upon. Besides to expose them to the young budding lawyers about this important field, a separate fund must be created in the name of ADR advocacy. Workshop and seminars must be conducted to develop awareness about the positive aspects and exercise of these processes. Others Proper case management should be undertaken, and the use of modern technology should be introduced to reduce the congestion in Courts. Along with this filling of the vacant posts of judges and staff and banning of the routine grant of adjournments must be ensured. Lack of punctuality in appearance by parties and their advocates must be viewed seriously. Pre-litigation counselling must be compulsorily done before taking judicial notice of the dispute. A separate cadre of devoted non-litigating lawyers can be appointed who can give sufficient time to ADR sessions unlike legal practitioners who because of their busy schedule try to hush away things in place of patiently hearing and helping the parties especially less-educated women. Some sort of preventive counselling centres in the rural areas must be set up. Mobile counselling can be done for the family’s experiencing marital discord. There must be an increased and better collaboration among the judges, police officers, advocates, prosecutors to deal with issues of DV and other crimes against women for increasing access to justice.

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8.2.2 Recommendation: Role of ADR Practitioners 8.2.2.1

General Recommendations

The ADR practitioners are expected to be flexible and open to the specific and unique needs of women for which they must modify their dealing process. They should explore the woman’s strengths and weaknesses to enhance her knowledge and preparation. No settlement should be worked out which would deprive women of their rights to maintenance, custody, property, residence in the matrimonial home. Mediator/counsellor should build a strong foundation for trust, confidence, and relatedness with battered women. This kind of positive support and intervention can enhance an aggrieved woman’s potency to speak openly about her problems. The woman will be free from the anxiety that the mediator/counsellor would believe in her side of the story rather than that of her husband. Mediator/counsellors (especially males) should develop more positive thinking to support fair laws and fair decisions in cases relating to women. The Mediator should do pre-mediation counselling to explore the woman’s strengths and weaknesses and to enhance her knowledge and preparation. For this mediator should have training in the areas like gender awareness; how to identify DV and power imbalances, dynamics of abuse, ways to deal with unequal bargaining positions. Mediator should be empathetic. Mediators need to inspect how their cultural values and biases influence their assessments and interactions. They should only act as a facilitator and let the parties have the freedom of self-determination, i.e. to make their own choices willingly. They must be appropriately trained and supervised to conduct the ADR process skilfully that can else be injurious to parties and the general impression of the ADR process. The ADR practitioners can meet on regular basis for sharing their experiences, troubles and settlement made for more experience sharing and learning about best practices to strategize these processes in the future. They should enhance the negotiating power of women during the reconciliation process.

8.2.2.2

Role of Judges

Improve Referrals The judges should improve the quality of referrals. Caution must be observed to know if a case is not fit for mediation, counselling. The number of cases referred for ADR is high due to the mandate given in Section 89 and later stated in Afcons Infrastructure Limited and Another v. Cherian Varkey Construction Company Private Limited and Others, (2010) 8 SCC 24. But there is an influx of referrals that are not suitable or fit for mediation/ counselling is increasing. There are cases where the parties are resolute at fighting it out in the Court, there are irreconcilable difference, parties didn’t want to stay together are being referred to these ADR methods must be prevented. If parties have a stubborn stand, if they are using the ADR process as a delaying tactic, etc., it should not be referred. The Court and judges must consider beforehand if the

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particular case is appropriate/fit for the ADR process after evaluating factors like the nature of the dispute, its subject matter, the complexity of the dispute, the characteristics of the parties, the relationship between parties, their interests and wishes, history or fear of violence by a party, mental illness, power and informational imbalance, level of familiarity of the legal system and the language barriers. Lack of punctuality in appearance by parties and their advocates must be viewed seriously. Delaying action by the rival parties should be checked. More power should be provided to the FC judges. The judge should inquire about the past DV and can do the screening of a case concerning battered women. After this preliminary evaluation and with consent from the battered women he should decide if a case is fit for reference to the ADR process. For this, a legal provision can be inserted in the relevant statutes. Appointments, Supervision, and Training of a Special Cadre of Judges Judges who are expert in the needs of the emotionally laden arena of family disputes must be appointed as FC judge and to deal with related marital disputes. The success of ADR depends upon the dynamism of the presiding officer and their concern towards ensuring gender justice. The process of appointing of judges must involve the patterning of their dealing strategies. It must be considered if they will follow the regular adversarial dispute resolution process of civil and criminal Court process or will adopt and adapt to gender-friendly processes. The FC personnel must be trained about the dynamic of violence and in the case of repeated and severe DV allegations mediation or counselling should not be attempted. Section 4(b) of the FCA states that preference would be given to women judges in appointments who will hopefully balance the speedy settlement, preservation of the family and gender justice concerns. More and more female judges, staff will generate greater confidence in women. Gender Sensitivity Judges need to develop sensitivity about gender dynamics that impacts the negotiations and the benefits offered by ADR. The rigid and conservative value system must be discarded. Fill the vacancies with judges who have a willingness, patience, commitment, sensitivity towards gender justice. The judge should preferably be women if not, they must be gender-sensitive Courts should deal with cases of crimes against women with the utmost sensitivity. A Judges need to be proactive to ensure that the subtle ways of power imbalance and discrimination through spoken and unspoken words are eliminated. Judge cannot be free from the cultural values and biases of his society. For this during the initial period of their recruitment judicial training programme gender justice education is necessary. Later on also the judges should be gender sensitized regularly about the problems peculiar to women and the complicated family disputes. A module for gender sensitization of the Family Court/District Court Judges can be evolved for their training on a regular basis. Before posting a FC judges they must receive orientation towards imparting justice to the aggrieved and vulnerable women. The enforcement of legal entitlements should be done by the co-ordinated efforts of police administration and judiciary. Women need to be provided support and guidance to access the Courts effectively.

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Role of Mediators

Qualification and Training The quality of mediators is yet another area of concern. In addition to sensitizing judges, it is crucial to focus on the quality and content of the mediation process. For this the role of the mediator is decisive. The mediator must possess the specific qualification, and high standards of selection should be observed while appointing them. The Organizing Committee of mediation centres should devote more time to this and must draw appropriate guidelines for this. There must be a separation of roles of lawyers acting as mediators. The appointment of full-time professional mediators who have a professional attitude, aptitude, and skill towards mediation practice is necessary so that mediation is not treated as a side business. For enhancing their skills, continuous endeavours must be made through regular workshops and training programmes. Family mediator standards of practice and a code of conduct must be prepared. The mediators in India must be trained in the art of drafting the mediation clause so that compliance with the MOU is high and its enforcement is smooth. Training in psychology, human behaviour gender sensitization, various aspects of DV, understanding the options availabe for women, power balancing, safety issues must be imparted. To make the process of mediation fruitful, provisions may be made regarding standards to be followed during mediation proceedings and qualifications for a family dispute mediator. Qualified mediators will increase the credibility and popularity of the process. Local mediators can be appointed to deal with cases at the local level as they will have a better understanding of the local conditions and will help parties in resolving their disputes in a much better way. In the Indian context, such recognition will further facilitate ADR by making parties comfortable and satisfied through its informal setting. The mediators must be made accountable for the performance of their role with honesty and integrity. Gender Concern The mediator must make the parties comfortable especially women so that they develop a sense of connection and personal empowerment. The Mediator should be flexible and open to the specific and unique needs of women and modify the proceedings accordingly. In appropriate cases, the mediator should recommend shuttle mediation. The Mediator should stop intimidating and threatening behaviour and must support and encourage battered women. Even after the completion of the process and reconciliation, the mediators should engage in follow-up with abused women. Mediator should make personal efforts to improve the chances of settlement by giving enough time for settling the disputes. The mediator must actively take steps to empower the weaker party through their encouraging and calming behaviour so that there is no subtle fear created in the vulnerable party. The mediator or counsellor should use their attributes and skills in dealing with interpersonal relations. They should have the ability to give career information and an attitude of acceptance towards every client. They should have

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the ability to win the confidence of highly emotional clients by raising their morale and sense of self-dependence. Mediator or counsellor must understand the party’s situation by keeping a friendly approach, particularly towards emotionally vulnerable clients. Ideally, facilitative mediation is followed in India but in appropriate cases and under strict guidelines, the mediator must be permitted to do evaluative and transformative mediation. In pertinent cases and only with the common consent of the parties, the mediator must be allowed to seek a family expert’s opinion concerning complicated cases wherein children’s future is involved. The mediator should not rush into the settlements but must devote personal effort and sufficient time to settle the disputes. Ideally, for marital dispute mediation, a lady mediator should be appointed to make the battered women feel secure and comfortable in venting out their feelings. Once it has been determined by a trained and qualified mediator that the dispute is suitable for the mediation process, he should employ the technique of power balance. He must make use of private caucus to allow women to disclose their fears and concerns. The Mediator should take a neutral stance during the process and work towards client empowerment. He should be gender favouring and must give opportunity and encouragement to women to disclose abuse. The Mediator should gauge the intimidating behaviour and must intervene whenever he gets awareness about threatening, reluctant participation in the negotiation process or about the use of delaying tactics visible through their indirect communications and gestures. Follow-ups should be done after the decision. Compulsory Mediation If the parties find that the informal procedure is unfair or they are unable to settle, they can always approach the formal legal system; therefore compulsory mediation is safe enough. Compulsory Conciliation under Section 12 of the Industrial Disputes Act, 1947 has played a very vital role in establishing and maintaining industrial harmony by preserving relationships. The success of compulsory conciliation in resolving industrial disputes is another incentive for introducing the same for the resolution of family disputes. Further, compulsory mediation in family disputes has had considerable success in countries like UK and Australia, which have a well-developed infrastructure for carrying on family dispute resolution by mediation; India must also make a similar attempt.

8.2.2.4

Role of Counsellors

The Counsellors in FC should be provided proper guidelines about the ways to deal with gender issues sensitively. The Counsellor may find various reasons for a matrimonial discord but before proceeding further, he should evaluate if reconciliation is possible, if causes of dispute can be removed and if the person can be modified. The Counsellor must try to find the spoilers and factors behind the matrimonial discord and then proceed with the counselling. A panel of advocate and counsellor can be constituted for both legal and psychological guidance with an additional member

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depending on the peculiarities of the case. Single counsellor hearing a huge number of counselee must be avoided to improve the quality of counselling. The counsellors must have sufficient time at hand for the parties to vent out their emotions. The counsellor must hear the parties patiently to know the real issue bothering them. The quality of counselling needs to be monitored, and based on this evaluation selection criteria need to be developed. The Counsellor must appreciate the women ordeal and DV faced by them. He must take action in this regard by developing a safety plan for them in terms of shelter, medical, legal assistance. They must ensure that no force fraud and undue influence is exerted on women. Their performance should be reviewed regularly. There is a need for associating non-official counsellors more actively with FC. During follow-ups, post-marital counselling can be undertaken to prevent any chance of repetition of DV.

8.2.2.5

Role of Advocates

Advocate as a Critical Actor It is required that the parties involved in the litigation must be informed about the availability of the ADR process. Advocates should be obliged and put under the ethical duty to inform and encourage their clients to consider the possibility of reconciliation through ADR. Lawyers must realize that ADR is growing worldwide and they too can contribute to this wave of change. High Ethical Standards Through a written code of ethics and conduct for mediators, high ethical standards must be prescribed. While the Act stipulated the special qualifications for a judge to preside over the FC did not prescribe the special qualifications to be an advocate competent enough to deal with ADR proceedings. There should be a periodic evaluation of the panel members for curbing the exploitative role lawyers play in the arena of the Court case. Advocates must educate parties about the advantages of the mediation process so that they can make informed choices. Gender Justice They should appraise the women litigants about the nature and purpose of counselling and mediation. Special qualifications to be a lawyer at mediation/FC/counselling centre should be prescribed to strike a balance while dealing with an issue related to gender so that women who are vulnerable and weaker party is treated in a just manner. They are treated with dignity and honour to inculcate confidence in the conduct and behaviour of ADR practitioners. Women often complain that they face exploitation by lawyers and specifically by the legal aid lawyers who are supposed to provide free representation to the battered women. Some advocates try to extract money from illiterate, marginalized, and powerless women on one or the other pretext. Permitting the appearance of advocates to represent women’s cause should not convert the informal FC dealing of dispute into ordinary litigation and entangle the parties in stretching of the process. At the same time, due assistance must be given to

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the women to empower them and feel confident during bargaining and help them in evaluating their options and the appropriateness of going ahead with the ADR process and if in the given situation it will be in their interest. While doing this evaluation, active listening must be adopted to know the goals which the women seek to achieve so that their stakes are not compromised. As far as possible the legal rights should be kept prime over the stereotyped perspectives that the advocate may hold. The lawyer must be conscious and appreciative of their personal biases. They must not preach about righteousness and if they are impacting their due role. He is expected to bring his legal knowledge, appreciate the situation and decide the best course of action for women client. Lastly while preparing a legal document regarding the matrimonial dispute, the tendency of levelling multiple false and grave allegations must be avoided as it permanently closes every door of reconciliation. The advocates routinely appearing in the FC should refrain from unnecessary intervention.

8.2.2.6

Role of Police

A lot needs to be done to improve the functioning of the police and its machinery of crime investigation that is suffering from numerous inadequacies. It is a common complaint that the police in DV matters are reluctant to register complaints. They at times try to make the women look at it as a personal domestic dispute and not as an offence against them. The importance of gender sensitization and training cannot be stressed much especially in the criminal justice system. The more pressing need is to make the existing criminal justice system more responsive to the exploitative situation and its social, economic, political, and other dimensions. Police should be trained to be respectful and courteous towards women in distress. They should inspire greater confidence in women. Capacity building for handling delicate issues, among police personnel should be undertaken for orientation and training to break the deep-rooted myths, bias, prejudices and stereotypes about women. Errors in a police investigation or unnecessary time delays must be checked. Networking among police stations, DV service providers should be increased. If possible, only women police officials should be allowed to deal with issues of domestic violence and other crimes against women.

8.2.2.7

Role of NGO

Women’s organizations should be consulted while formulating policy and for making reforms in the laws concerning ADR in the context of matrimonial dispute and women. NGOs should be encouraged to play an active role in social change. Some of the primary reasons behind marital discord are cruelty, adultery, insanity, and alcoholism. Alcoholism is a major reason for physical and mental cruelty and marital discord, steps are necessary for discouraging alcohol consumption by setting deaddiction centres with the help of NGOs. Mandatory reference to de-addiction must be made if the batterer wishes to continue and preserve the marriage. In a recent

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case6 while setting aside a state government circular as discriminatory, arbitrary and unreasonable the Court held that the directions prohibiting women from approaching SP for counselling under the PWDV act will limit their powers by not realizing the full effect of socially beneficial legislation and the optimal use of services provided by NGO. The Court also laid down guidelines for counselling/mediation under the Act including informing the victim of her rights regarding DV and other legal action without pressurizing her to compromise. Even the counselling and mediation will be voluntary and to begin after her consent. Thus, the cases concerning DV can be counselled and mediated by NGOs even before the filling of the case and Courts direction. For this certain policy guidelines for check and balance are to be kept in the vanguard to avoid power imbalances. NGOs can intervene, recommend but must not coerce, impose, or force any alternative on women. The approach should be to empower women and not to guide them with a paternalistic spectacle. The counselling and mediation process should enlighten the women about the ways they can take control of their life and their decision must be an informed and voluntary decision. NGO can play a crucial role in creating awareness about the Social Security Scheme and legal facilities available for the welfare of the women. With assistance from NGO support services in every district should be strengthened. Every district should have a sufficient number of shelter homes for women. Training should be provided to NGOs and government agencies running such centres. Crisis centres that provide services like legal aid, counselling and medical help should be introduced.

8.2.3 Recommendations: Gender Justice To Begin with… A woman is the worst sufferers in any litigation. The implication of divorce is farreaching for her. To improve women’s access to justice it is crucial to promote their participation in the democratic process and political and social life. Their role in various aspects, including management and leadership, should be strengthened. The strain of male domination manifests itself in various kinds of cruelties against women. The scenario of economic disparity in marriage continues due to varied factors. Concerning matrimonial property, the Indian laws are far from satisfactory. Economic emancipation is an important part of the social emancipation of a woman. A woman having an independent economic existence will not be susceptible to social oppression with that amount of ease as she will access justice for wrongs committed against her. An evaluation of various concerns like disparity in women’s economic power and level of awareness about legal entitlements can be done beforehand to reduce the gap in the bargaining power of women. This will make ADR effective and will curb the allegation of woman’s exploitation due to their vulnerability. The presence of gender bias, unconscious stereotypes, inequalities, devaluing or not considering the 6 Dr

Jaya Sagade, Director v. The State of Maharashtra (2016) 1 Mah LJ 947.

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women’s experience about marital abuse and preaching on how ideally they should behave and react need to be restrained during ADR proceedings. There should be a periodic evaluation of the panel of members for curbing the exploitative tactics. Any sort of arrangement under the pretext of preservation of family or adjustment and tolerance should not constraint women especially in case of repeated DV. Financial independence and education for women will be indispensable mean to prevent the exploitation of women. Community support for the victim should be provided in all cases. Legal discourse on gender issues must focus on formulating strategies for economic rights for women, after the dissolution of marriage to prevent their destitution and consequential impoverishment. Financial independence and rehabilitation for women must be ensured through various policies and programmes. Empower women through skill-building and employment opportunities. Provision of free vocational training, employment, and income generation activities must be ensured. Education can be an indispensable means to prevent the exploitation of women. Rehabilitation and Support Services need to be provided as a one-stop solution to deserted women in terms of shelter homes, counselling, legal aid, vocational/ skill training. Gender roles need to be restructured so that women can freely participate in the public domain. Maintenance for women must be deposited in the Court at the beginning of every month. Laws concerning women need to be made more stringent. The appropriate law reforms must be made that are devoid of political pressures and considerations and away from the patriarchal notions. For example, the prohibition of child marriage by making compulsory registration mandatory will check the economic dependence and insecurities prevent gender-based violence and other socio-cultural demands. Through follow-up, some measure of check should be reserved on the recurrence of such incidents. Early marriage should be fully prohibited. Women should be given equal access and control over the property in the family just like their male counterparts. The evil practice of dowry should be eliminated through rigorous monitoring by law enforcement agencies. Laws like the DPA and the PWDVA should be more effectively implemented. The anomalies between the matrimonial laws governing the different communities must be bridged. Women’s access to substantive equality must not be linked to the Uniform Civil Code always, but it must be provided by amendments to the personal laws. A committee should be set up to review the laws on rape, dowry, and violence against women and make specific recommendations to the central government for statutory and procedural amendments keeping women’s rights as the focal point. Laws should be framed for the recognition and division of matrimonial assets. For expeditious disposal of cases, procedural delays should be curbed by suitable amendments. Laws should be simplified and made victim-friendly. Offences arising out of marriage under Section 498A and 406 of the Indian Penal Code should not be compounded (because a woman gains separation from an abusive situation but her husband will not be held accountable for his criminal conduct). Courts find it difficult to enforce the execution of orders passed under Section 125 Cr. P.C., 498 A and 406

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of Indian Penal Code, so they could be heard by the same magistrate. Government should undertake Policy actions in terms of gender-based targets for skill training. Power Imbalance If mediation and counselling will be appropriate in a given situation that choice must depend on a case-by-case analysis. Especially in cases of past DV and severe power imbalances, consultation is given to women to provide them with an opportunity to decide if they wish counselling and mediation in a court-annexed setting. The parties especially the women should be appraised about the pros and cons of these methods so that they can compare them and form an informed selection about the process that will cater best to their requirements. Also, the specialized services of expert counsellor and their intervention can be sought at the preliminary stage to gauge the nature, the impact of the severe allegation of DV have created fear in their mind and the chances of its effect creating power imbalance and how to priorities and deal with women’s safety. Any ADR intervention that jeopardizes women’s well-being, their recovery from DV, re-victimizes them should be challenged. The safety and security; physical, psychological and mental apprehensions have to be the central focus against promotion and preservation of marital relationship. Women’s rights must be given priority over reconciliation in a certain variety of cases discussed above for sending a strong message among the batterer that reconciliation will not absolve them of their guilt. More trauma-related support services must be provided to battered women and initiatives for addressing the common causes leading to violence against women must be scrutinized for generating a policy for prevention. Every form of stereotyping and victim-blaming need to challenged. The procedure for reporting gender-based violence must be made smooth and easy with more coordinated efforts. Women, in general, are hesitant to discuss their ordeal with strangers; thus, mandatory screening in every matrimonial dispute must be undertaken with the help of various tools. FC should try to preserve the family but only after addressing and ensuring the right to life and freedom from violence for women. They should be trained in rendering justice to the aggrieved women who are generally the weaker party in the dispute. Introduce simplified procedures for withdrawal of maintenance amounts deposited in Family Courts. Simplified procedures for withdrawal of maintenance amounts deposited in FC’s. There should be a total exemption of Court fees for women litigants. Training of ADR Practitioners The ADR process needs to be further promoted for improving access to justice for women. The ADR environment must be made women-friendly, congenial, and conducive for them. For this gender balance in staff must be ensured or training on gender-specific issues must be imparted so that power imbalances between genders can be sensed and curtailed. Presiding officers should show a sympathetic attitude towards the parties. The private caucus will be an important way to find about their presence during which a woman can disclose her fear or concerns. The functioning

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and quality of counselling and mediation must be the major focus for which guidelines need to be laid. This will curb the employment of subjective discretion in a given situation. Screening of cases of DV and power imbalance should be given extra attention. Introduce screening guidelines for matrimonial mediation; especially in cases involving DV. For this, the mediator/counsellor should pay attention to body language, facial expressions, history of violence. He must empower battered women through support, encouragement, validation, and acknowledgement. Before accreditation, the mediator must be given training about gender awareness; he must know the various aspects and sort of power imbalance that exist in a particular case and what are the ways to tackle these unequal bargaining positions. They must have a psychological understanding of the ways to engage with a highly emotional client who is unable to express herself so that she is not unrepresented. He should be empathetic towards the parties’ cultural norm the parties and his cultural values and biases that might impact his assessment of the dispute and his interaction with the parties. ADR practitioner must be trained in identifying the DV, its form and severity and the surrounding situation of the women. Accordingly, the session needs to be strategized with women’s safety issues need to be prime most. They need to be vigilant about their unconscious biases and attitudes which expects women to conform to gender roles and traits and accordingly expecting too much from the women Above all he must appreciate the woman’s options or lack of them while he will facilitate her in choosing to stay with a husband or to leave him. If it will be safe for her to stay and he must identify the peculiar traits of the abusive partners and abused partners. Security Concerns Women’s security must be ensured by the ADR practitioners and other functionaries. There must be separate waiting areas for women waiting for their turn during the process. If not possible, lady personnel must be deputed around to provide a safe, private, and comfortable setting to a woman so that her mind is not clouded with any insecurity or apprehension. Guidelines for personnel about the power dynamics must be laid so that risk analysis of the process can be done. It will help gauge the tactics that might be used by the perpetrator to intimidate the women victim through his express and implicit gestures. Permit Legal Assistance Keeping in mind the Indian women and their specific needs, lawyers should be permitted to accompany them all this while. Legal representation in mediation/counselling should be permitted only in complicated matters. A panel of lawyers, preferably women as amicus curiae, and legal assistants like a public prosecutor of criminal Courts should be appointed to helping the aggrieved women. The battered women litigants should be given an exemption from paying the Court fee. Media and Awareness Media can play an important role in the social awakening and in bringing about a change in the attitude of the masses. For this media should highlight socio-economic

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causes leading to crimes against women that affect womanhood and the society at large. Discussions on women’s issues with victims and the concerned personnel should be promoted through the media to find novel solutions to the offences. Censoring of the programmes should be implemented effectively so that violence against women does not get undue attention from the public. It should conduct awareness campaigns on violence against women. It should remove the stigma attached to victims of domestic violence through social awakening. Education campaigns among youth should be undertaken for making them aware of the social evils and ways to eradicate them. A handbook or flyer must be printed in the local language and made available to the woman so that she can refer it to know about the availability of sound support services and their legal rights, entitlements. Awareness about legal and other rights, how to claim them and get redressal from authorities, must be created. Host of legislation will be of no use unless their awareness and implementation are undertaken after identifying the problem areas present in the existing laws. Legal literacy is the need of the hour. The state should ensure that literacy programmes are conducted more often in rural and far-flung areas. Legal literacy camps should be conducted for spreading social awareness creation should be organized in rural areas. Information regarding various legal reforms and rehabilitation schemes should be regularly disseminated. The nature and purpose of counselling and mediation and a list of services for reconciliation, counselling and mediation should be published. Effort should be made to generate awareness among illiterates and poor women about their rights and legal safeguards provided under different Acts. Awareness about gender equality and women’s rights should be instilled among all through gender sensitization. Court staff, counsellors, mediators, judges should be sensitized on regular basis to ensure qualities to solve matrimonial problems like temperament, experience, training, impartial, neutral, unbiased so that the participants reach their decisions voluntarily. Prepare brochure about mediation and FAQ.

8.3 Concluding Remarks The feminist framework expects that the ADR should fulfil its promise of providing a woman-friendly forum which they can approach for voicing their grievances and that can make them feel empowered and encouraged. For this ADR is propagated as a promising way of marital dispute resolution. This book analysed the working of ADR process like counselling a mediation that was not so far directly studied in the Indian milieu. Even the existing literature gives a peripheral exposition of the discrimination and gender justice aspect but the empirical support for their conclusions is meagre. A comprehensive empirical review of these processes was undertaken to find their performance in the context of gender justice. Although the findings are based on a small sample, it sufficiently gave an understanding about the functioning

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of mediation/counselling, type of cases referred, manpower available, kind of problems faced by the battered women mediator/counsellors and the areas which needed strengthening for their effective organization. Indisputably these mechanisms are gaining relevance as there is a constant increase in the number of cases being filed for matrimonial dispute especially, among young couples. The Indian legal system is undergoing radical changes with the introduction of the ADR process that settles dispute expeditiously, economically, and promptly by saving parties from public harassment. The counselling and mediation process are much better modes of resolving matrimonial disputes in terms of the amount of time and money spent, procedural informality, confidentiality, privacy with the least acrimony. The success rate of these process is satisfactory; however, a great deal of improvement is possible for achieving a much higher rate of success (like other countries). ADR proceedings lack adequate infrastructural facilities like space, manpower, the professionally trained cadre of persons for effectively conducting these procedures. Their potential is not yet fully tapped due to the interference by key players and the presence of serious ethical, psychological, infrastructural impediments. Poverty, illiteracy, ignorance, procedural formalities and delays, social attitudes and bias, women’s socialisation, traditional and patriarchal outlook, act as barriers to women’s access to justice. Women face difficulties while accessing Courts and ADR due to a lack of awareness about procedural technicalities. Lack of education and economic empowerment forces a woman to negotiate with her perpetrator and accepts unjust terms and settlements. Women experienced varied emotions during the ADR process. They had positive experiences in terms of support, encouragement, can empower against negative experiences anger, disappointment, and suspicion to gratitude and enthusiasm. This study has indicated that many factors contribute to a positive or negative experience in the ADR. Women respondents gave mixed views about the effectiveness of ADR process. Some were dissatisfied with the outcome of the process despite investing too much time. Some of them were appreciative of the supporting staff for being co-operative and helpful. They did not have a good experience of mediation/counselling and stated that their expectations were not met as they were unable to understand things. The majority of them felt that one should always consult a lawyer before attending the mediation/counselling. The sense of personal empowerment was enhanced for the women if they felt some connection with the mediator/counsellor. Some of them complained about the pressure exerted by mediator/counsellor, to accept their idea of what the agreement should be. The study found that to an extent the ADR process is approved by women litigants who perceive them as a fair process that allows them in negotiating their agreement. Many of them stated some of the mediator/counsellors hard-pressed the disputing spouses to confirm and consent to their version of an ideal agreement. The effort must be to settle the issues between the partners by protecting women from DV with resolving related issues more systematically and scientifically. For this collaborative effort of initiating pre-litigation mediation, prescribing a professional code of conduct and rules with continued training for judges and mediators about their respective roles in the process will go a long way. We need to reflect upon the fact that how wise it is to preserve a marriage and family unit at the cost of

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legal justice of battered women by compromised her rights. A balance needs to be created between these two aspects to stop revictimizing women. Positive interventions tend to have an empowering effect on women to stand against intimidating behaviours and feeling secure. The mediator or counsellor needs to be caring, empathetic desire to support and help people. Mediator/counsellors deal with personal and emotional problems of people who are in difficulty that they cannot resolve. In short, counselling requires sustained and patient listening to the person facing difficulties, to see what his situation means to him, what are his options. All this analysis will help in a reasonable and lasting solution to their problems. The judges, mediator or counsellor always try for reconciliation that may not always be the best solution and may even be risky. Mediators who are dealing with conflicted couples need to be aware of their feelings about gender roles, power, and violence to perceive women’s issues objectively. Rather than randomly telling women to adjust, effort should be directed to know their position. The lack of professional supports to cope with the adversities pushes the vulnerable women behind the scenes to suffer in silence. Women issues need different approaches and handling with a focus on interventions aimed at positive relationships building among the spouses and in a way that responds to everyone’s need. The approach needs to be contemporary but that should not compromise the basic norms and values of the Indian family structure. The presence of societal prejudices and notions against women when used for resolving matrimonial disputes are hampering in realizing the full worth of these ADR. Most of the state responses seek to mediate solutions to matrimonial disputes, despite DV, in a manner that does not lead to the breakdown of marital relations and even though it might be detrimental to the larger interests of the aggrieved women. Thus Onus of settlement or keeping the family together is majorly imposed on women thus defeating the very purpose of these ADR procedures. Reconciliation is not bad, but it should be done with equal representation, fair hearing, by maintaining power imbalance between the parties, with non-bias, impartiality and neutrality. Empowerment of women is the best way in cases of repeated history of physical violence, alcohol, or drug abuse or where the husband has committed bigamy or adultery. In such cases, women should not be compelled to attempt reconciliation. No settlement should be worked out which would deprive women of their rights to maintenance, custody, property, and right of residence in the matrimonial home. For this screening, guidelines can be laid for the reference of the ADR practitioners by taking the assistance of social workers and psychologists. Mediation and counselling should be avoided in cases of history of DV and alcoholism as it will be risky for women to continue in that relationship. Before women enter into the ADR process, a duty to analyse their situation must be imposed on the practitioners to judge if the screening for chronic DV and abuse and power imbalance their effect on women’s decision is in place. The mediation and counselling process must be undertaken with some ground rules and safety procedures. It will minimize intimidation, protect the privacy and safety of women. Depending on the ground rules, the process should be terminate, decline, or allow the exemption. In such cases, unless the parties are willing to honestly and openly cooperate without dominance and control, it must not be attempted. For this, mediators and conciliators must be trained and skilled

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about screening techniques about the appropriateness for the parties and towards the resolution of the family dispute. ADR may be a popular mean of resolving the disputes that must be abandoned in cases where dispute, divorce proceedings between the couple are beyond repair and reconciliation seems impossible. Above all, women should have complete control over the process and its outcome. If the disputing couple has crossed the point of reverse the law should protect the battered women and not push them into reconciliation. Unequal bargaining power, family violence, and spousal abuse are points to keep in the forefront. There may be cases where staying under the same roof with the aggressor is impossible. Such special cases require different handling which will surely be inconsistent with counselling and mediation that has communication and joint resolution at its core. In all such violence and abuse recourse to the judicial system is the only best option. Therefore, gender-sensitive judges, police, counsellors, mediators, and other professionally trained functionaries can together create a conducive culture for resolving matrimonial disputes in an honest and concerted way. ADR should not be judged according to the yardstick of success or failure but just like any simple case in which two opposite parties have approached the Court for resolving their dispute through Courts intervention. The ADR practitioner should uphold justice and equality so that the ADR process is streamlined. This would give a new dimension to the existing matrimonial scenario in the Indian jurisdiction. To grant complete qualitative justice, ADR must bring maximum benefits to women. In matrimonial litigation, keeping the protection and promotion of gender equality is a must. For successful management of the matrimonial disputes, an all-around mindset change is required to give voice to women and without making gender justice erroneous. If all these findings and measures are taken care along with its modalities, it will surely secure women a better position towards their enjoyment of social, economic, political, and constitutional rights. Lastly, despite certain recognized disadvantage and limitations, the ADR process and its outcomes are more positive and advantageous to both disputants and society unlike contesting the dispute in Court with the attendant financial and emotional burdens. A perusal of the study brings forth that both mediation and counselling are yet to completely achieve the objectives for which they were introduced in a courtannexed form. ADR inculcates the idea of how to be a part of the solution instead of the problem. In the context of matrimonial disputes, it teaches spouses that there can be better cooperation even among divorcing spouses. At the same time, there is a need to check the stereotypes, power imbalances perpetuated among the ADR functionaries so that the women can face the crisis of her marital separation constructively without the escalation of the conflict and let go of the negative emotions and attitudes both pre- and post-divorce. For ensuring healthy divorces, it is hoped that a more vigorous and exhaustive empirical research will be undertaken with a much larger sample to retest the outcome of these results to bring but the exact impression of the ADR mechanisms among battered women in India. Hopefully, the comprehensive results will negate and invalidate the discouraging findings and if not then will motivate the stakeholders to work together to make the process safe and secure for women. The ADR must prove that an informal dispute resolution system can be

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gender-sensitive by being vigilant towards power imbalances. If its achieved, then probably ADR will provide a sustainable and equitable closure to the matrimonial disputes. Else under the current circumstances, the goal of achieving speedy justice and reducing caseload will be achieved but only at the cost of pushing back the battered women in the same situation that forced them to initiate legal action.

References Garner, B. A. (Ed.). (1999). Black’s law dictionary (7th ed.). St. Paul: West Group. Gupta, S. (2011). Alternative dispute resolution-with special reference to mediation and conciliation vis-a-vis arbitration. Corporate Law Advisor, 105(2) November. Hardy, S., & Rundle, O. (2010). Mediation for lawyers. Australia: CCH Australia Limited. Wallis, J. H. (1968). Marriage guidance—A new introduction. London: Routledge & Kegan Paul.

Glossary

Access to justice Access to justice makes the right meaningful. It is a basic principle of the rule of law and a foundation for the enjoyment of other rights, including the right to a fair trial, to provide legal services, legal advice and representation, legal protection, legal awareness, legal aid and counsel. It implies the right to a hearing and to be heard in the Court. Conjugal rights It means relating to marriage or married persons and their relationships. Docket explosion It means the case institution rate is greater than its disposal rate leading to an increase in pendencies before the Courts and its associated issues. Engender To integrate, incorporate, or mainstream the gender perspective in development initiatives. Feminism The belief, doctrine, or an organized movement for the attainment of social, economic, political, other rights, power, and opportunities for women equal to those of men and be treated in the same way. It is the theory of equality of the sexes. Feminist A feminist is someone who believes in feminism and advocates for equal social, political, legal, and economic rights for women to those of men, eg. objecting to women being paid less than men for doing the same job. Gender It refers to the socially constructed relationships between men and women that change over time, space, and circumstances. Gender bias Gender bias is the tendency to prefer one gender over another gender or preferential treatment men receives or treating men and women differently or in an unfair way. It is a form of unconscious or implicit bias in which certain attitudes and stereotypes are unconsciously attributed to a person that affects the behaviours of the ascribed towards the ascribed. Gender discrimination Gender discrimination or sexual discrimination is discrimination based on gender identity or gender or sex differences that denies opportunities, privileges, and rewards because of gender, eg. sexual harassment, unequal pay for equal work. © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 N. Tyagi, Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR), https://doi.org/10.1007/978-981-16-1015-8

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Glossary

Gender equality It means that women and men enjoy the same status and conditions, have equal opportunity for realizing their potential, can equally contribute to the development of their countries and be benefitted from the results of development. Gender equity It means to moves beyond a focus on equal treatment by giving to those who have less, and taking steps to compensate for historical and social disadvantages that prevent women and men from operating on a level playing field. Equity can be understood as the mean, equality is the end and equity leads to equality. Gender gap The gap between women and men in terms of how they benefit from education, employment, services, etc. Gender roles It means the assigned appropriate roles, rights, and responsibilities of women and men based on which a particular society expects particular sex to behave, act, dress, and conduct. They are clusters of socially or culturally defined and learned expectations about how people will behave in a particular situation. Gender stereotypes It is a bias against women that society’s perceptions and value systems instil through an image of women as weak, dependent, subordinate, indecisive, emotional, and submissive. They are unexamined images, ideas, or beliefs associated with a particular group that has become fixed in a person’s mind and are not open to change. It causes unequal and unfair treatment of a gender and doesn’t allow people to fully express their emotions. Gender subordination It implies the general character of gender relations, i.e. male and female relations. Males have dominance, and females are subordinates. Females have an inferior position and lack access to resources and decision making. Impasse It means a situation of deadlock. It is a state of affair in which no progress is possible, especially because of disagreement. Misogyny It means showing feelings of dislikes, despises, strong prejudice, or hatred towards women and believing that men are much better than women. Neutrality It is a state, policy, or status of being neutral in a dispute. It means refusing to take part or not supporting or helping either side in a conflict or disagreement. Paternalistic It is an action that limits a person liberty and restricts his behaviour against or regardless of his will. It is a system relating to or characterized by the restriction under which an authority undertakes to supply needs or regulate the conduct of those under its control in matters affecting them as individuals rather than letting them take responsibility for their own lives. Patriarchy (“rule of the father”) It is a universal political structure that favours men over women. It means family or society in which authority vest in male members to hold authority over women, children, and property. In this social structure, men dominate, oppress and exploit women and the decent and inheritance are traced through them. Patriarchy mainly refers to the relational aspects of gender.

Glossary

331

Personal laws A body of laws specific to each community and controls and directs their matters relating to marriage, divorce, adoption, succession and inheritance, maintenance, guardianship of children. Prejudice Prejudice or “judgement in advance” means a preconceived unfavourable opinion not based on reason or experience formed beforehand or feeling of an unreasonable dislike of a particular group of people or things because of some characteristic, or a preference for one group of people or things over another. Power imbalance In any situation, two things that should be equal or that are normally equal are not so; or in a condition in which two or more things are not equally or fairly divided. In relationships, there is power involved and power imbalance can also exist due to one party holding authority in a relationship due to a range of factors such as better communication, economic power etc. that can give one person the upper hand in a difficult situation. Res judicata (“a matter adjudged”) It means a pending dispute is already judged and decided by another Court, between the same parties, it will not be tried and will be dismissed by the Court before which it is filed. Sex It refers to the biological differences between males and females. A person is a male or female regardless of race, class, age, or ethnicity. Sexism It is an ideology that means judging people by their sex when sex doesn’t matter. It is based on the belief that one sex is superior to another. It leads to negative attitudes, discrimination, prejudice, stereotyping based on gender often expressed towards women as a group. Sex roles They are socially coded behaviours based on an occupation (being a housewife) or a biological function (motherhood). Social change It means transformations over time due to human interactions in the cultural and social institutions. It includes alteration in society’s social order, social progress, or socio-cultural evolution. It may cover changes in social institutions, social behaviours, or social relationships in the socio-economic structure. It includes mechanisms within the social structure typified by changes in rules of behaviour or value systems. Socialization It is a process of learning and internalizing the norms, values, and ideologies of their society by an individual. It is a way by which social and cultural continuity is attained and maintained. It is the process of learning throughout life that influences one’s behaviour, beliefs, and actions. Speedy justice Speedy justice refers to the speediness or to impart justice swift justice or speedy disposal of cases by the Courts to make the judiciary more effective. This philosophy is now right to a speedy trial under Article 21 of the Indian Constitution. Violence against women Any act of gender-based violence that results in physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life.