Pre-litigation Conciliation/mediation
- Prior to filing court cases the warring couple must undergo pre-litigation conciliation/mediation. Statements made in the petition/written statements/replies causes increase in misunderstanding and enmity between the husband, wife and their respective family members/friends. Presently there is lack of trained councillors to help the warring couple reconcile and avoid unwanted litigation.
- Indian society is collectivistic and not individualistic. Indian society promotes interdependence and cooperation, with the family forming the focal point of the social structure. The Indian family structure is going through rapid change in recent times and it is turning away from the Indian system of joint family wherein all the family members live under the same roof and contributed in taking care of each other, to the western system of nuclear family wherein husband and wife single handedly are responsible for their and their children’s well-being. Due to economic liberalisation women are now educated/employed and they are often wrongly blamed for rise in family disputes.
- There is lack of updating family’s attitude towards a working woman and their changing social/economical status. Due to above changes women now, desire say in family affairs and economic decisions. Due to rudimentary thinking there is rise in family disputes and society’s lack of updating attitudes with changing socio-economic situations also contributes to such disputes. Mother-in-law and sister-in-law have to understand aspirations and career path of the new entrant in their family i.e. the wife.
- 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 above method will have positive effect on children as they will see a secured bond between the parents.
- If the parties have understanding and awareness of oneself, most of the disputes will be settled amicably. Nearly 40% marriages performed in last decade have resulted separation or divorce due society’s failure to adapt attitudes with changing socio-economic situations.
- Advocates assistance must be taken only when the disputes go out of hand of a councillor/mediator.
- The couple must be assisted/encouraged to talk in a peaceful manner/environment and be encouraged to reach a settlement on their own.
- There is huge burden on the family court judges as the current infrastructure and financial resources are inadequate to deal with matrimonial cases due to astronomical increase in such cases. The society is also dealing with the epidemic of package litigations offered by a few lawyers who expand a simple family dispute into several cases i.e.
i) Petition for divorce.
ii) Petition for restitution of conjugal rights.
iii) Child custody petition under the Guardians and Wards Act.
iv) Civil suits related to immovable property of the husband/wife/in laws.
v) Criminal cases under Section 498A, 376, 377 etc of the Indian Penal Code.
vi) Applications under the Protection of Women from Domestic Violence Act.
vii) Claim of maintenance under Section 125 CrPC.
viii) Anticipatory bail/regular bail applications,
ix) Interim maintenance, interim visitation rights, etc.These disputes result in filing of appeals, reviews, revisions etc and such litigations result in irretrievable breakdown of marriage and reduce the possibility of settlement or reconciliation. - The family court is suffering from below mentioned epidemic/issues:-
i) Docket explosion and pendency of cases.
ii) Procedural delays (Delay in service of notice, delay in court procedure, etc.).
iii) Multiple proceedings between parties.
iv) Resource constraints.
v) Socio-cultural dynamics.
vi) Lack of legal awareness or biased/wrong advice to parties.
vii) Enforcement of orders (Maintenance orders, orders granting visitation rights, enforcement of foreign judgment/decrees, etc.).
viii) Limited use of Alternate Dispute Resolution mechanisms.
ix) Custody battles and child welfare.
x) Lack of trained judges, counsellors and mediators.
xi) False cases and abuse of law.
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.Seeking expert legal guidance?- Contact The Divorce Law Firm today.
