‘Forget Vasudhaiva Kutumbakam, keeping families together is a challenge’:SC says decisions forcefully imposed in family disputes are unjust

Supreme Court judge N.V. Anjaria made important remarks on family disputes. He said in Guwahati on Sunday that solutions provided by courts often become artificial. Justice Anjaria said many parties feel that justice has been imposed on them. Such justice seems like an illusion to them and can take the form of injustice. He described mediation as the most appropriate way to resolve family disputes. He said these disputes are connected to human emotions and sensitivities. Justice Anjaria was speaking as the keynote speaker at the Eastern Zone Regional Conference on ‘ADR versus Judicial Decision in Family Disputes: Challenges and the Way Forward’, held in Guwahati.
Rising number of disputes in family courts Referring to the rise in family cases, Justice Anjaria said, “Forget India’s values and ‘Vasudhaiva Kutumbakam’. We are now struggling even to keep a single family united.” Family disputes are connected to human emotions and sensitivities. In such disputes, solutions derived from laws made by courts or judges often become artificial. He said Justice Kurian Joseph had raised the issue of the growing number of family disputes as early as 2008. He said, “In many cases, the parties feel that justice has been imposed on them. When justice is imposed or forced upon someone, it becomes like an illusion and takes the form of injustice.” Justice Anjaria said at the closing ceremony of the two-day conference that resolving family disputes was also a process of improving the social system. Citing a case, he said, ” He said access to justice should not mean increasing the number of cases by pursuing every legal remedy available at every possible forum. Justice Anjaria said the situation was worse at present. Family disputes are steadily increasing and giving rise to new disputes one after another. Questions over the Family Courts Act Justice Anjaria asked those associated with the legal field in the north-eastern states whether the Family Courts Act had been viewed from a different perspective. He said, “Have you read its provisions carefully? Its objective states that the law was enacted to resolve family disputes.” He said the law emphasised reconciliation and achieving socially better outcomes. Following procedural rules was not its primary objective. A Supreme Court judge said that a Family Court judge has to play different roles. The judge has to act as a conciliator and mediator. He said that a judge can also play the role of an arbitrator in disputes between a husband and wife or family members. The judge’s responsibility in resolving disputes is extremely challenging. Justice Anjaria said, “But the Family Courts Act may not have achieved the desired results. We have not been able to achieve through the functioning of this law what should have been achieved.” He said this was why the need to use alternative dispute resolution mechanisms had emerged and new methods had to be developed for them. Mediation described as the best option Justice Anjaria said, “Among alternative dispute resolution mechanisms, which is the most suitable for resolving family disputes? I believe, and I say this with the utmost respect, that the answer will be the same by consensus among everyone-mediation.” He said mediation addresses the shortcomings of the legal process. According to Justice Anjaria, mediation is suitable for family disputes. It seeks solutions by understanding human psychology and mindset. He said mediation creates a situation that benefits both parties. Multiple avenues available in court Justice Anjaria said the court is, in a way, a system with multiple doors. It offers various alternative dispute resolution mechanisms, such as Lok Adalats, arbitration, conciliation and mediation. He said the process of mediation could be improved through the concept of this ‘multi-door courtroom’. According to him, family disputes can be examined at the very outset. Depending on the nature of the dispute and the issues involved, the case can be referred to a specialist mediator in the relevant field. He said this would make mediation more effective and quicker. Need to amend the mediation law Justice Anjaria also highlighted a shortcoming in the mediation process and mediation law. He said that in many cases involving the breakdown of a marriage, the parties agree to a divorce by mutual consent after mediation. He said that when such a case reaches the Supreme Court, the court acts under Article 142 of the Constitution. However, lower courts and high courts do not have the power to issue an immediate divorce decree on the basis of an agreement reached through mediation. He said that the agreement remains in place, but a divorce decree cannot be issued. The parties then have to file a joint application and go through litigation once again. Justice Anjaria also referred to Section 27 of the mediation law. The section concerns the enforcement of agreements reached through mediation and their terms, but it has not yet come into force. He said that under this section, the agreement must be binding and enforceable. This must be in accordance with the provisions of sub-section 2 of the section. However, Justice Anjaria said he still had doubts that the court would be able to issue an immediate decree on a divorce settlement reached through mediation, even after Section 27 comes into force. He attributed this to Section 55 of the Mediation Act, which states that the Act’s provisions will prevail over provisions relating to mediation and conciliation contained in other laws. Justice Anjaria said that even after Section 27 comes into force, courts other than the Supreme Court, which acts under Article 142, would not be able to enforce a divorce settlement and issue an immediate decree. He said, “Therefore, this is a legislative area that may need reform.”