Justice Nagarathna Suggests Mandatory Pre-Litigation Mediation In Family Court Cases

Speaking at an event, Supreme Court judge-Justice BV Nagarathna recently flagged the need for pre-litigation conciliation/mediation as a mandatory procedure before cases reach Family Courts.

"My suggestion is that there should be pre-litigation conciliation/mediation as a mandatory procedure before a case is filed in the Family Court. This is because The crystallization of a dispute in the form of pleadings often results in polarization between the parties. Family Courts must have trained mediators or retired judges as mediators to prevent a dispute from entering a Family Court", the judge said.

Justice Nagarathna was speaking at the Southern Zone Regional Conference organized by the Family Courts Committee, Supreme Court of India in association with High Court of Karnataka & Karnataka Judicial Academy (Bengaluru). The themes of the conference were “Family: The Basis of Indian Society” and “Efficiency of Family Courts: Human Resource and Infrastructure”.

Besides Justice Nagarathna, the event was graced by Supreme Court judge-Justice Ujjal Bhuyan, Chief Justice of Karnataka High Court-Justice NV Anjaria and judges of High Courts of Karnataka, Kerala, Andhra Pradesh, Tamil Nadu and Telangana.

At the outset of the address, Justice Nagarathna spoke about how a family is a fundamental unit of human organization and the bedrock of its social stability. Drawing a contrast with the values in Western society, the judge emphasized that Indian society is "collectivistic", instead of "individualistic", inasmuch as it promotes interdependence and cooperation, with the family forming the focal point of the social structure.

The family system however, it was pointed, is undergoing rapid transformation due to societal changes and transformation of laws, which in turn are impacting the legal system as well. Insofar as socio-economic liberation of women due to education and employment is often blamed for rising disputes among families, the judge remarked that the change should be encouraged by society and viewed positively.

Justice Nagarathna linked the rising instances of family disputes to society's lack of updating attitudes with changing socio-economic situations. Most of the disputes would get resolved, the judge said, if the parties practice two steps: first, have an understanding and respect for the other, and second, have awareness of oneself.

"Whenever the first partner appears to do something which, in the opinion of the other partner is problematic, the other partner must reason such action standing in the shoes of the first partner. In other words, the partners must actively seek to understand the perspective and reasoning of the other partner from the lens of the other partner. This will help in creating an engagement between the partners rather than escalating it into a dispute."

Practicing these two steps, it was opined, would also have a positive impact on children as it would provide them with an enabling environment coupled with secure bond between the parents.

In the context of society's failure to adapt attitudes with changing socio-economic situations, the judge further stressed that there has been a spillover effect on the legal system in terms of mounting family litigations. A report by Times of India was cited to highlight that nearly 40% of marriages performed in the last decade or so are ending in divorce or separation. In this backdrop, the judge reflected that there is huge burden on Presiding Officers while infrastructure and financial resources are inadequate.

Justice Nagarathna also raised the issue of "package litigations", underlining how one dispute amongst family members gives rise to a wide variety of litigations - divorce, restitution of conjugal rights; cases under the Guardians and Wards Act; suit with regard to property dispute; complaints under Section 498A, 376, 377, etc. of IPC; petition under the Protection of Women from Domestic Violence Act; petition for maintenance under Section 125 CrPC; bail pleas; interim reliefs of maintenance, visitation rights, etc.

These multiple disputes (which also give rise to revisions, appeals and transfer petitions), the judge observed, lead to irretrievable breakdown of marriage and reduce the possibility of settlement or reconciliation. As such, pre-litigation conciliation/mediation was recommended as a mandatory procedure.

"Lawyers must feature in a family dispute only when the complexity of the dispute enlarges. Parties must be encouraged to communicate and speak to each other in a cordial environment so that the parties come together and discuss their differences and arrive at a settlement as far as possible on their own", Justice Nagarathna expressed.

In closing, the judge listed out problems plaguing Family Courts thus: (1) Docket explosion and pendency of cases; (2) Procedural delays (Delay in service of notice, delay in court procedure, etc.); (3) Multiple proceedings between parties; (4) Resource constraints; (5) Socio-cultural dynamics; (6) Lack of legal awareness or biased/wrong advice to parties; (7) Enforcement of orders (Maintenance orders, orders granting visitation rights, enforcement of foreign judgment/decrees, etc.); (8) Limited use of ADR mechanisms; (9) Custody battles and child welfare; (10) Lack of trained judges, counsellors and mediators; and (11) False cases and abuse of law.

Ending on a positive note, Justice Nagarathna conveyed that a family can travel through all turbulences that life subjects it to. “At the end of the day, a loving family should find everything forgivable", the judge said, quoting Mark V Olsen.