Supreme Court judge B V Nagarathna on Saturday said adjudication and alternative dispute resolution mechanisms must work together in the delivery of justice in family disputes.
The chairperson of the Committee for Family Court Matters in the apex court also emphasised that speedy resolution cannot come at the cost of meaningful and just outcomes.
Addressing the opening ceremony of a two-day eastern zone regional conference on ‘ADR vs adjudication in family disputes: Challenges and way forward’, Justice Nagarathna said, “It would be apposite to consider whether the framing of this theme suggests an apparent conflict.” “After all, alternative dispute resolution mechanisms are not meant to supplant courts. Rather, the two should ideally aid in delivery of justice, with ADR mechanisms offering speed, privacy and confidentiality in family matters,” she said at the event organised here by the Committee for Family Court Matters, Supreme Court, in association with the Gauhati High Court.
Mentioning delays in the delivery of judgment in family dispute cases when time is of the essence in several such matters, Justice Nagarathna said such delays lead to exaggeration of existing inequalities in familial relationships.
She stressed that one mode of addressing these inordinate delays is through ADR (alternative dispute resolution).
The apex court judge maintained that the mode of dispute resolution has to be determined depending on its nature, highlighting that “the absence of acrimony and adversarial style of a courtroom may also result in reconciliation” if the case is taken up through ADR.
She said strategic use of ADR mechanisms could help in reducing pendency of cases, adding that Bihar has 70,365 pending cases, Odisha 36,792, Assam 7,399 and Sikkim 149, as of October 2024.
Justice Nagarathna said, “The need of the hour is a precise approach that identifies the mechanism which suits the dispute at what stage and subject to what safeguards.” Speaking of family courts, domestic violence and welfare of senior citizens intersectionality, she said it is the family and not the cause of action which requires resolution.
“A suggestion in this regard is that there must be a dedicated geriatric mediation panel with trained persons in ageing and dependency who could resolve the disputes of the senior citizens of a family,” the apex court judge said.
Another suggestion offered by Justice Nagarathna was that if a dispute has different jurisdictions, it must be referred to one mediator who can seek to resolve it at the same time, with a single judicial officer retaining oversight.
She maintained that in every dispute under the Family Courts Act, there must be a pre-litigation mediation, and the mediator must see if there can be a resolution at that stage itself without there being a case registered in the family court.
She also suggested that every petition for restitution and every contested divorce petition must be listed for conciliation first without the written statement being filed.
In case of custody of children, shared parenting and visitation rights, Justice Nagarathna maintained that a mediated parenting plan was a better instrument to resolve it than a custody decree.
She also advocated for a “child-inclusive mediation”, in which a trained professional ascertains the views of the child and conveys them to the parents.
The apex court judge stressed that the family courts, despite their nomenclature, were never intended to be spaces that encouraged adversarial actions and the role of lawyers was limited to that of amicus curiae only.
She said notice should be served to the respondent to appear and only where pre-litigation mediation fails, permission may be granted for advocates to appear.
Justice Nagarathna also mentioned the stress and strain on family court judges, and said it was necessary to take note of “what baggage they take home”. She also urged for permanent staff in the family courts, qualified counselling and mediation units, psychologists and social workers who are attached to the courts permanently, and training for the mediators.
She advocated the use of technology, especially for appearances through video conferencing when the parties reside afar.
Justice Nagarathna said a system of integrating ADR with adjudication in a manner that would allow speedy resolution of disputes in cases where speed is of the essence, but not at the cost of meaningful and just outcomes, is yet to be evolved.
“Mediation is not meant to be substituted for adjudication, and a woman’s bargaining position is worth precisely what her legal entitlement is worth,” she added.
Referring to “weaponisation of litigation”, the Supreme Court judge said it was a phenomenon where the process of litigation itself was a punishment to the other side and a weapon of revenge for one side.
“The goal is to subject the other person to the rigours of a court proceeding for the purpose of causing humiliation and financial strife. This is now happening in civil and criminal matters also,” she added.
