With increase in incidence of divorce rates, it is essential to explore the informal modes of dispute resolution. Namita discusses a few commonly used Non-Judicial Modes …
Marital discord and disputes have been on the rise over the past decade. Underlying causes for marital discords have also been changing. Liberalisation, materialism, urbanisation and an accent on individualism seem to be contributing to high rate of divorces taking place in India.
When an attempt to resolve or settle a marital dispute fails at the personal or family level, the couple seeks, other than the professional lawyer, the help of some marital dispute resolving agency or machinery for advice and direction, depending upon the nature of settlement desired.
Advocate Arvind Jain, Delhi High Court opines that marital disputes cases cannot be resolved without going to courts, he adds, “Non-judicial modes do not have any legal sanctity in domestic disputes cases. There is no way these disputes can be resolved in a non-judicial setting. Some relief may flow from Lok Adalats, but even they force a person to accept lower compensation, because they can not provide speedy justice.”
Various modes of settlement of marital disputes can be grouped into (i) Official, and (ii) Non-official modes. The official category may be sub-divided into (i) Judicial, and (ii) Non-judicial. The judicial modes include: ordinary civil courts; family courts; Lok Adalat (people’s court); and legal aid cells. The non-judicial mode comprises the Crime against Women Cell (CAWC), NGOs, Panchayats, and Imarate- Shariah.
Government has enacted extensive legislation to protect interests of women like Dowry Prohibition Act, Sections 304B and 498A of IPC and Prohibition of Indecent Representation of Women Act. CAWCs have been established to exercise jurisdiction over all types of crime against women.
CAWC conducts enquiries into the complaints, mostly related to dowry and cruelty matters and recommends registration of cases, where required. High-level public contact is also maintained through the media including newspapers, television and radio.
Disposal of cases usually involves three stages:
“Non-judicial modes do not have any legal sanctity in domestic disputes cases. There is no way these disputes can be resolved in a non-judicial setting. Some relief may flow from Lok Adalats, but even they force a person to accept lower compensation, because they can not provide speedy justice.”
Marital disputes are increasing day by day for variety of reasons and causing serious individual and social problems, particularly children are at the receiving end without their any fault. Therefore, it is always better to resort to the alternative mode of settlement of marital disputes that is by employing Non Judicial Modes including, providing platform for dialogue through elderly family members, society, lawyers, NGOS, professionals, social opinion builders, proper counseling, conciliation and Gram Panchayat while depending on their respective economic, non-economic and geographical background. Although no data is available, but it may be presumed that the problem of martial disputes are comparatively less in rural background than urban towns or cities because of lack of economic independence of females, polygamy (depending of social customs) and social restrictions. Gram Panchayat may be effective only in rural background. The Constitution of India has assigned responsibilities related to economic development and social justice (Article 243 G), but by virtue of their position, the officials of the Gram Panchayat can influence the husband and wife and their respective families to come to settlement and to resolve the disputes. The social influence has a vital role to play in rural background and therefore taking recourse to judicial methods is a rarity.
To improve its image and credibility in the eyes of the public, various steps were taken by CAWCs to streamline the working procedures. These are like raising the level of inquiring officers to the inspector level and keeping all reconciled couples on follow up on a time frame convenient to them. To fulfil its objectives and responsibilities, the CAWC works in coordination with NGOs and the ‘Judiciary’. The CAWC claims to have established a close liaison with the Central Social Welfare Board and has attempted networking with various organisations in order to help the public at large.
Some types of NGOs are dedicated to marital disputes, thus tending to be specialised organisations. They are conversant with all aspects of issues (legal, social, economic) of marital problems. They have professional staff and are in a position to better serve the interests of the clients.
Family counselling centres of voluntary organisations like Mahila Dakshita Samiti, Saheli, Shakti Shalini are a few examples of NGOs dealing with problems related to marital discord. Some NGOs exist not only for this purpose but also to deal with matrimonial problems like Rajasthan University Women’s Association, CECOEDECON, Legal Aid Centre for Women, War Widows Association, Young Women’s Christian Association, Bharat Sewak Samaj, etc.
Islamic judicial courts have been established to decide the disputes of the Muslims with regard to inheritance, marriage, divorce, waqfs in particular, and other matters in accordance with Shariat laws to save Muslims from costly and time taking procedures of general courts. Disputes are resolved amicably. Fairness and transparent judicial pronouncement of the Islamic courts have, it is claimed, succeeded in attracting faith and confidence of majority of Muslim Ummah.
Fourty Shariah courts in Bihar, Jharkhand, Orissa and West Bengal have been functioning under Imarat-e-Shariah, headquartered in Patna. The first Darul Qaza (Islamic court) was established in Bihar way back in 1921, where every year around 400 cases are filed and disposed of. Shariah courts have been working in many states and cities, e.g., Orissa, Hyderabad, Bangalore, Aurangabad, etc for a long time.
All parties generally accept the verdict of the Shariah court. The decisions, it is said, have rarely been challenged in the court of law. Muslims, particularly the conservative section of the Muslims, take their matrimonial disputes for settlement to Mullahs and Qazis (Darul Qaza) because of their belief in Quranic justice. All India Muslim Personal Law Board (AIMPLB) is the apex body, which frames rules relating to procedure and disposal of cases relating to divorce, etc. It recently pronounced some fundamental changes in the procedures relating to divorce (Talaak/model Talak and Nikahnama), the rights of women and other important matters. However, most of the cases at the Shariah courts relate to the deserted wives.
In rural and semi-urban areas of the country, Panchayats play a significant role in resolving any dispute of the concerned community around them as part of local self-government. Panchayats are a part of the democratic infrastructure at the grass root level, the Central and State governments have always encouraged this institution.
CAWC conducts enquiries into the complaints, mostly related to dowry and cruelty matters and recommends registration of cases, where required.
In rural and semi-urban areas of the country, Panchayats play a significant role in resolving any dispute of the concerned community around them as part of local self-government. Panchayats are a part of the democratic infrastructure at the grass root level, the Central and State governments have always encouraged this institution.
CAWC conducts enquiries into the complaints, mostly related to dowry and cruelty matters and recommends registration of cases, where required.
Crime against Women Cell (CAWC) is playing a crucial role in attempting to convince the parties for a settlement by delaying the registration of an FIR. By settlement, I do not only mean that husband and wife part their ways peacefully on mutually agreed terms and conditions, but also, many a times, CAWC is able to re-unite the parties. A third party or mediator helps the parties to sort out their differences. It provides them a platform to vent out their anger and emotions, which is often left out during family oriented mediations. Delayed registration always brings a hope for settlement, as it provides time for temper to cool down.
I would suggest that where CAWC is attempting conciliation, no hurry should be shown in the registration of FIR or arrest of the husband or the relatives of husband. With my experience, I can say that after the arrest of any member of the family, the conciliatory mechanism comes to a halt and grievance begins. I am confident that CAW Cell will demonstrate its human face more clearly and with competence so as to inculcate faith in the seekers of justice.
I believe that involvement of NGOs may not be helpful at times, because activists of NGOs always act pro-women. As a result, they may not be able to fairly perform the role of a neutral mediator.
I must also stress that all the proceedings, which may be conducted at CAW Cell, should be treated as confidential and whatever is said or placed on record, should not be allowed to be used subsequently as evidence, after the failure of conciliation proceedings or at a recommendation of the registration of FIR, either at the stage of investigation or in the course of judicial proceedings. As soon as the conciliation fails and there is registration of FIR, the record should be destroyed.
A divorce under custom may be obtained through the agency of Gram Panchayat or Caste Panchayats by private act of the parties, orally or in writing or under an agreement (oral or written), such as will of divorcement, Tyagapatra or Farkatnama (Chukna Vs. Lacuma, 1969, 2 SCWM 605).
A custom permitting divorce to one spouse against the wishes of the other is void, being unreasonable and against public policy. Among low caste Hindu tribes, divorce has been generally recognised, but among high caste Hindus, divorce is recognised under a social custom. The Gram Panchayats and Caste Panchayats continue to exercise jurisdiction over customary divorces.
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