Guwahati, Sep 27 (PTI) Supreme Court Judge Ujjal Bhuyan on Sunday said family disputes occupy a very different space in the justice system, as they rarely end with a decree and parties, especially where children are involved, may have to appear before courts repeatedly.
He said adjudication has an important role and cannot be replaced, particularly where there are allegations of violence, coercion or serious wrongdoing.
The judge was delivering the valedictory address at the Eastern Zone Regional Conference on ‘ADR vs Adjudication in Family Disputes: Challenges and Way Forward’ here.
“Family disputes occupy a very different space in the justice system. A dispute between two commercial entities may come to an end with a decree or an award, and the parties may thereafter go their separate ways. Family disputes are rarely so simple, particularly where there are children,” Justice Bhuyan said.
Questions of custody, visitation, maintenance and education may bring parties before the court repeatedly, he said.
“What may appear on the record as a petition for divorce or a custody application is often the final stage of a much longer personal conflict. By the time the matter reaches the court, there may already have been years of disagreement, disappointment and mistrust,” Justice Bhuyan said.
He said that adjudication has an important and irreplaceable place in the justice system and cannot be replaced.
“There are also situations where protection of the court is essential, particularly where there are allegations of violence, coercion or serious wrongdoing. In such cases, court adjudication cannot simply be replaced by an expectation that parties will compromise,” the apex court judge said.
However, experience teaches that not every family dispute is best resolved by a judgment, he added.
“A court may decide where a child will live, but the parents will still have to decide and work out how they will communicate about the child’s education, health and future. A court may determine maintenance, but the parties will still have to deal with one another for many more years,” Justice Bhuyan said.
These continuing relationships make family disputes different from many other forms of litigation and give particular importance to mediation, he added.
Justice Bhuyan further said, “The strength of mediation lies in the fact that parties themselves remain involved in finding the solution. The mediator does not pronounce a judgment. The mediator facilitates communication and helps the parties identify what is really important to them.”
In many family disputes, this can make a considerable difference, he said, noting that the dispute presented before the court may be described as one concerning custody, maintenance or divorce, but during mediation it may become clear that the real difficulty lies in communication, financial insecurity, access to children or inability of parties to speak to each other.
“These are matters which a judgment may not always be able to address. The very object of the Family Courts Act is to promote conciliation and to secure a speedy settlement of disputes relating to marriage and family affairs. Family justice was never conceived merely as a process of deciding which party succeeds and which party fails,” Justice Bhuyan said.
The statutory framework recognises that wherever circumstances permit, the court should create an opportunity for settlement, he said.
“The law therefore recognises that in appropriate cases, the court’s role is not confined to pronouncing a decree, but may also involve giving the parties an opportunity to resolve their differences,” he added.
Referring to the Supreme Court’s approach, Justice Bhuyan said the top court has demonstrated that law must respond to realities of family relationships and has reiterated importance of mediated settlement rather than allowing procedural limitations to defeat ends of justice.
“Supreme Court has innovatively used Article 142 jurisdiction to settle an entire gamut of cases between disputing spouses, even when it is presented with an innocuous transfer petition. We always say a stitch in time saves nine,” he said.
“A matrimonial dispute, if allowed to fester, can spiral out of control. Where children are involved, the dispute assumes a different character altogether. The warring spouses may cease to be husband and wife, but they do not cease to be parents,” he added.
The child continues to need both parents most of the time, and the responsibility of the justice system is not merely to determine immediate legal rights of parents, but also to ensure that welfare and dignity of the child remain protected, Justice Bhuyan said.
This is perhaps where distinction between adjudication and mediation becomes most meaningful, he stressed.
“A judgment determines legal rights and obligations of parties, whereas a successful mediation allows parties to construct an arrangement which they are themselves prepared to accept and follow. Mediation is a means of facilitating a genuine settlement, not a process through which a settlement is imposed or foisted upon unwilling parties,” Justice Bhuyan said.
Cautioning against treating mediation as an automatic solution or panacea for every family dispute, he said settlement cannot become an objective in itself.
“Settlement obtained through pressure, fear, or economic dependence, or because of a skewed relationship, cannot be regarded as a meaningful resolution. A person who is economically dependent upon the other spouse may not negotiate from an equal position.
“A person who has faced violence or intimidation may not be in a position to freely express what she wants,” the apex court judge said, adding this is particularly important in cases of domestic violence.
Mediation in family disputes cannot proceed on the assumption that every conflict is merely a disagreement between two spouses, and sometimes what appears on the surface to be a matrimonial disagreement may conceal a deeper pattern of intimidation, abuse or control, he said. PTI TR RG TR NN
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